Lawsuit over Florence casino goes to court in Eugene.

Byline: Winston Ross The Register-Guard

The state of Oregon laid out its case against a casino near Florence on Tuesday, arguing in federal court that U.S. Secretary of the Interior Gale Norton had no business allowing a 98-acre tract of land to be cleared for gaming.

"She made a mistake," said David Leith, assistant state attorney general, of the secretary's decision to "restore" the land, which involves giving it special status so that tribes can operate a casino on it.

"She simply was issuing an opinion without any delegated authority to do so."

This case is likely to be the last hurdle for a proposed 50,000-square-foot casino that the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians want to build near the junction of North Fork Siuslaw River Road and Highway 126. Supporters and opponents of the casino filled a federal courtroom in Eugene on Tuesday to hear both sides give arguments before U.S. District Judge Tom Coffin, who is expected to rule on the matter in 60 days.

Coffin spent a portion of Tuesday's proceeding grilling the state's attorney about how Interior Department officials erred. Then he asked lawyers for both the Interior Department and the tribes if they'd speculate on the state's real motive for filing the lawsuit, which drew criticism from the state's attorney.

In 1988, Congress passed the Indian Gaming Regulatory Act, which allowed federally recognized tribes to build casinos on restored lands - areas controlled by Indian tribes and not subject to states' gaming bans. The central question Tuesday was whether the Hatch Tract, the section of land Confederated Tribes purchased in 1998, can be considered restored.

Normally, restored land must be owned or acquired by a tribe at the time it gets federal recognition. Since the Confederated Tribes bought the Hatch Tract in 1998 - 14 years after it earned federal recognition status - Leith argued that only Congress should have decided whether it was OK to build a casino there. Instead, the secretary of the interior made that decision, asserting that the tribe's ties to the land allow it to be considered "restored."

"The state's concern is gambling in accordance with the Indian Gaming Regulatory Act," Leith said. "We understand the Hatch Tract to not be eligible for gaming."

The Interior Department's attorney countered that tribes often acquire land after they get federal status, and it would be impractical to ask Congress to designate such parcels each time tribes want to establish gaming on that land. Judy Rabinowitz, a U.S. Department of Justice lawyer, said the Indian Gaming Regulatory Act allows the interior secretary to deal with "gray areas," making case-by-case decisions on land that tribes acquire after they get federal status.

"The secretary is designated to deal with questions at the margins," Rabinowitz said. "That's what the secretary is there to do."

Rabinowitz said Norton has had to make such decisions several times in recent years, and none has been overturned. If the state were to prevail, many of the interior secretary's designations of tribal land as restored could be called into question, she said.

If Coffin rules in favor of the state, the case will be remanded back to the Interior Department, where officials could reconsider the case or let the 9th Circuit Court of Appeals rule on the matter.

If the state loses, it could appeal to the 9th Circuit Court as well.

Of the nine federally recognized tribes in Oregon, eight already have casinos. None serve as precedents to this case, as they don't occupy land that was declared restored by the Interior Department. The Confederated Tribes did get 11 acres restored by Congress and approved by the state for a casino, but that land is too close to the Coquille Tribe's Mill Casino in North Bend to be economically viable.

"Seven hundred members - 11 acres - there's something wrong with that picture," Rabinowitz said. "It's time that the tribes stopped having to fight."

Bruce, the Denver attorney representing the tribes, told the judge Tuesday that he thought the state's case was about control. One of the last acts of former Gov. John Kitzhaber was to sign a compact with the 800-member tribe that would allow gaming at the site - but only if the tribe and the Interior Department prevail in the lawsuit, which Kitzhaber's own administration filed a year ago.

Greene said Kitzhaber was miffed that Congress stripped states' ability to authorize where casinos could be built, and he filed the lawsuit in order to regain that control.

"Essentially, the former governor was offended by the notion that Congress had circumvented his veto authority," Greene said.

Tribal members who showed up at Tuesday's hearing said they're eagerly awaiting a decision.

Casino opponents said they're prepared to keep fighting if they lose their case.

"Regardless of the outcome, we believe that the preponderance of people in Florence don't want a casino," said Susie Dewberry, a spokesman for People Against a Casino Town. "We're not going to lay down and take a casino."

On Thursday, Tom Grey, executive director of the National Coalition Against Legalized Gambling, will arrive in Florence for a public meeting at 7 p.m. at the Florence Events Center.

Grey is expected to tell residents how to keep their battle alive.