The opinion of the court was delivered by: Mcmahon, Judge.
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS' MOTION TO RENEW
On April 17, 2002 — almost two months after this Court's decision
was rendered, and well beyond the ten days permitted by Local Rule 6.3 of
this Court for filing motions for reconsideration — plaintiffs
filed a "motion to renew" (a form of motion recognized by New York
State's Civil Practice Law and Rules, but nowhere mentioned in the
Federal Rules of Civil Procedure). Plaintiffs allege that information
developed during the depositions the Court did permit — those of
Chiefs Ransom and Smoke, who were clearly officers of the St. Regis
Mohawk Gaming Authority — revealed that almost all the substantive
action taken on behalf of the Gaming Authority was taken by McDonald.
Plaintiffs further allege that certain documents recently made available
to them, including the Charter of the Gaming Authority, reinforce the
need to depose McDonald, due to the "expansive range of authority
delegated [to the Gaming Authority] by the Mohawk Tribe to manage all of
the Tribe's gaming activities." (Moving Brief at 2).
Park Place opposes the application because it is untimely. It points
out that documents detailing McDonald's role in negotiations with Park
Place were made available to plaintiffs no later than August 16, 2001.
Obviously, the information from those documents could have been made
available to the Court in connection with the original motion to quash
— or, at the very latest, within ten days after the Court indicated
that McDonald's role in the activities of the Gaming Authority had not
been spelled out sufficiently. Park Place also notes that the Charter of
the Gaming Authority should have been obtained by plaintiffs far earlier
than last month — and could have been, given the close alliance
between plaintiffs and the faction of the St. Regis Mohawk Tribe that was
apparently the source of the charter.
The Tribe opposes the application, urging that McDonald was acting as
an official of the Tribe, not of the Gaming Authority (the entity that
explicitly waived the Tribe's sovereign immunity), when he did whatever
he did in connection with the Park Place negotiations. It points out that
the Charter limits the Gaming Authority's activities to Monticello, New
York, which is not where the St. Regis Mohawk Tribe ultimately elected to
locate its casino. And it argues that the Gaming Authority was actually
dissolved a mere sixty days after it came into being.
I am unmoved by the Tribe's argument that the reference to
"Monticello, New York" in Section 1 of the Gaming Authority's Charter
limits the activities of the Gaming Authority to a casino to be located
in that municipality. There are numerous other references in the document
to the "Property" on which the "Enterprise" (i.e., a duly authorized
commercial gaming enterprise of the Authority) is to be located. In every
such instances, the "Property" is defined only as being located in
Sullivan County — a county that includes Monticello but is not
limited to Monticello. I further note that Tribal Resolution 96-22, which
authorized the creation of the Gaming Authority describes the purpose of
the Authority as the management of "the day-to-day operations of a gaming
facility in Sullivan County," not Monticello.
However, the Charter also delegates extensive powers to the "Management
Board." McDonald is not a member of that Board, and plaintiff's counsel
did not establish through questioning at the depositions of Chiefs Ransom
and Smoke that McDonald was either a member of that Board or that he
operated as an agent of the Management Board in its dealings with anyone.
Therefore, the necessary nexus between McDonald and the Gaming Authority
has not been established to my satisfaction.
In 1996, when the original charter of the St. Regis Mohawk Gaming
Authority was adopted, the Tribe determined to conduct its affairs
relating to casino development in Sullivan County through the Authority.
This Authority, and the resolutions pursuant to which it was created,
were the work of a Tribal Council that now competes with the Three Chiefs
(Park Place's allies, and the subjects of plaintiffs' deposition
subpoenas) for control of the Tribe's governance and its potentially
lucrative gaming opportunities. The Three Chiefs, representing the
pro-defendant faction of the Tribe, appear to be by-passing the Gaming
Authority as a development vehicle — no doubt because it was
chartered by the enemy faction within the Tribe. For example, it appears
to me that Park Place entered into its agreement with the Tribe, not with
the Gaming Authority. It is thus quite possible that McDonald, who was
not a member of the Management Board when the Authority was established,
could have had dealings with defendant that were not undertaken on behalf
of the Authority. Plaintiffs have had ample opportunity to make the case
that he so acted; they have failed to adduce any proof. This matter will
not be revisited.
On another matter entirely, I trust that in the upcoming summary
judgment motion papers the parties will address the recent decision of
the Appellate Division, Third Department, in which the Appellate Division
affirmed Judge Teresi's order declaring that the Governor of the State of
New York has no power to negotiate and enforce compacts with Indian
tribes to facilitate casino development without legislative approval.
Saratoga County Chamber of Commerce Inc. v. Pataki, 2002 WL 826037 (3d
Dep't, May 2, 2002).
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