Casino developers negotiate MOU in bad faith

In 2002, early in the Cowlitz Tribe’s land acquisition process—and before plans for a casino were firm—a lawyer for the Cowlitz Tribe approached Clark County and suggested that they negotiate a Memorandum of Understanding (MOU).

The tribe would need county services at that site—water, sewer, law enforcement and so on—and wanted an agreement in place ensuring those services.

The county was interested in an agreement because due to tribes’ status as “sovereign nations,” Indian businesses on trust land are not required to pay property taxes, and local laws such as building and health codes do not apply. The county saw an agreement as a way to protect itself financially and to ensure the safety of people on that site, whatever the development.

Pressed by the casino developers, the county negotiated an MOU before it knew for certain the tribe’s plans. The county negotiated with the understanding that the tribe was pursuing a regular trust acquisition and approved the MOU March 2, 2004. (The MOU documents and related correspondence are available in the “Local” section of our Library of documents.)

Only 10 days after the MOU was signed, the county received two letters from the Bureau of Indian Affairs (BIA). One stated that the tribe had applied to get the land put in trust for the purpose of building a casino. The other letter stated that the tribe had applied for the land to be designated its initial reservation. Both issues were germane to the MOU negotiation but information was withheld from the county until after the document had been signed.

Of the two letters, the second was the most shocking. If the tribe had simply applied to take the land into trust, as the county had expected, the Secretary of the Interior would have consulted with local governments to determine whether the benefits of a casino would outweigh negative impacts on the area. If the Secretary had decided it would, the governor would have had the power to make the final decision. Instead, by applying for an initial reservation, the tribe locked state and local entities out of the process.

(In March 2005, the Cowlitz Tribe quietly applied for restored lands status with the National Indian Gaming Commission, another route that eliminates local input and the need for the governor’s approval.)

In addition to signing a weak agreement that failed to adequately account for the massive casino-resort the tribe later proposed, the county did not realize that MOUs are regarded by the Department of the Interior as a sign of tacit public support for casino-related applications.

MOU described as illegal

Meanwhile, in 2004 a property owner adjacent to the proposed casino site and owners of the La Center cardrooms appealed Clark County’s MOU adoption. The petitioners contend that in the MOU, the county agrees to extend services to a site that is not intended for intense commercial development. Further, they said it was a violation of state law for the county to agree to the MOU without first amending the county’s land use plan to reflect this type of development.

The Western Washington Growth Management Hearings Board and Superior Court, dismissed the case, and the petitioners took it to Appeals Court.

In October 2006, the Appeals Court issued a ruling that raised serious questions about the validity of the MOU. It declared the MOU a “de facto amendment” to the county’s Comprehensive Plan and sent it back to the Growth Management Hearings Board. All sides agree that the Board of Clark County Commissioners did not follow the state-required public process to make changes to the county’s land use plan. We now await the Hearings Board’s action.

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