Friday, March 27, 2009

Where Are We Now?

The Tribe needs to immediately put up, or move. The problem comes from Carcieri, the failure of the BOS to be mentally present on any other day than Monday, and the quoted language of the IGA below:

"L. Effective Date and Term.
This Agreement shall become effective upon its execution by the Parties
hereto and shall continue during the period of time that business operations related to the Project are conducted at the Project Site, provided that if the Tribe is informed by the Secretary of the Interior that the United States will not take the land into trust for the purposes of allowing the Tribe to conduct gaming activities thereon then this Agreement shall terminate 30 days after all appeals related to such a decision have been exhausted."

Here is the problem. The BOS did nothing when the Marshall plea happened, even though our gaming attorney, in a December 22 letter to the BOS told them they should take action to have a meeting with the Tribe. The BOS refused that advice, and said that a meeting would happen in mid-March. The BOS, probably unaware of Section L (from pure laziness in failing to read the IGA), did not even realize that the Carcieri case also needed to be handled with a negotiation and discussion with the Tribe BEFORE the SCOTUS made its decision. Again, they simply sat and watched as our small window of negotiation opportunity disappeared.

So where are we now. The Tribe is doing a feasibility study, and the BOS wants to wait for that to be done before talking to the Tribe. They apparently don't realize the importance of that study. The Tribe is trying to set up the numbers so that they can come back to the Town and say that they need the IGA adjusted to remove some of their infrastructure obligations. In other words, they will want to get rid of their obligation to wait until Rte 44 is usable before they open the resort.

Recall that the IGA prohibited the Tribe from using any local roads once they began operations, and there was no way that the State would have 44 done before they were ready to open. That negotiated provision gave leverage to the Town to get the percentage that was promised in negotiations. If the BOS had pushed the discussions back in February--before Carcieri, the Carcieri issue could have been dealt with at those negotiations, and the matter of local roads and percentages also could have been resolved. There was a good argument for breach back then, something our gaming counsel confirmed on December 22.

But now, the Tribe, under Section L, based on Carcieri--the relevance of which the BOS ignored--now gives the negotiation leverage to the Tribe. The IGA, as the law currently stands, suffers from an impossibility of performance, and the Tribe can simply pull the plug without any cost to them--and they may even have the ability to get back the $250,000/year planning monies on a theory of unjust enrichment or equitable rescission. Wouldn't that be a kick in the teeth to Middleborough--all because the BOS failed to take any affirmative steps to protect the Town.

What should happen is an immediate sit down with the Tribe, where they are told that there needs to be an immediate decision on where this project is going, whether the Town can expect its percentage and several other modifications. If the answer is satisfactory, then modify the IGA appropriately. If the answer is negative, then let's send them packing and focus our attention elsewhere.

Bottom line, the worst thing that can be done right now is to let the Tribe get its ducks in a row, because time is not on Middleborough's side. They are lining up their ducks to get out of the infrastructure costs, and will rely on the BOS desperation for the casino to come to Middleborough (at less cost to the Tribe and greater cost to Middleborough).

Make the Tribe commit NOW, or tell them to leave NOW. Their choice.

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