July 8, 2013
Host: Ted Simons
- A federal judge recently issued a ruling that’s another win for the proposed Glendale Casino. The judge said that Arizona’s gaming compact does not ban more casinos from opening in the Phoenix metropolitan area. Heidi McNeil Staudenmaier of the law firm Snell and Wilmer will talk about the latest ruling.
- Heidi McNeil Staudenmaier - Snell & Wilmer L.L.P.
| Keywords: casino
Ted Simons: Good evening, and welcome to "Arizona Horizon," I'm Ted Simons. A federal judge last month ruled that Arizona's gaming compact does not prohibit more tribal casinos from opening in the Phoenix metropolitan area. That's good news for the Tohono O'Odham tribe and its plans for a casino near Glendale. Heidi McNeil Staudenmaier of the law firm Snell & Wilmer is here to help us make sense of this new ruling. What exactly did the judge rule?
Heidi McNeil Staudenmaier: The decision back in May left two claims alone that he felt needed additional briefing on. Those specific questions were does the restatement of contracts, a statutory legal thing, apply when a party's understanding of the contract is not reasonable. And then secondly, which representatives of the state should we look to, to decide what the State understood when the compact was entered into. Should they look to the intent of the governor, voters or somebody else? Those two issues were sent back to the parties to brief. That's what he then looked at and reviewed in this most recent decision.
Ted Simons: Let's start with the idea of what was understood by this gaming contract. What does the gaming compact say regarding new casinos?
Heidi McNeil Staudenmaier: Well, that's what the judge -- that's basically the crux of the whole issue of the lawsuit, is what does that compact -- which is 67 pages long, 20 sections, an in-depth legal document -- and that was part of the what the judge was commenting on was, this compact was negotiated for a long time by some very smart people. And I don't see anywhere in this document that says that there will be no more new casinos in the Phoenix area. And that's kind of what it boils down to is, where in the compact does it specifically say there would be no more casinos in the Phoenix area for the Tohono O'Odham tribe. The state and the other plaintiffs argued that, well, there's other evidence out there. There is understandings that the state had, understandings that the Tohono O'Odham tribe had. They knew when they were entering into this contract they were implicitly agreeing there would not be any new casinos in the Phoenix area. They were a tribe in Tucson.
Ted Simons: Is the judge basically saying implicit is one thing, but I don't see it here in the compact?
Heidi McNeil Staudenmaier: In this most recent ruling he looked at those two discrete issues. The most important things he determined was, I understand there may be best evidence of what the tribe may have understood, what the state may have understood. He looked at the four corners of the contract and Arizona law, which has a very liberal interpretation of how you interpret, letting in other evidence that's not in the four corners of the contract. And even notwithstanding that liberal interpretation, he said this is an integrated contract. What that means that is all of the important terms are contained in the four corners of this contract. Therefore it really doesn't matter what other understandings may have been separate and apart from this contract.
Ted Simons: With the idea being that, because the contract is so firm and it's all right there, if you didn't understand, where were you?
Heidi McNeil Staudenmaier: Why didn't you put it in there. Exactly. There was a lot of discussion in the briefing about, well, you know, the Tohono O'Odham truly knew that they wanted to have this casino, but yet they didn't bring that up during the discussions. And so, you know, the judge really did a very thorough examination. He looked at all of this extrinsic evidence. At the end of the day he said, you know what, this contract stands on its own and it's not a reasonable interpretation to say otherwise.
Ted Simons: It cannot reasonably be read to include such a ban, period. The second part is, who was supposed to do the understanding?
Heidi McNeil Staudenmaier: That's kind of a secondary issue, even though that was one of the issues briefed. In the judge's final analysis, it really didn't matter whose understanding was, because he said that a separate oral agreement separate and apart from this integrated agreement really is not reasonable to include in my analysis.
Ted Simons: If the governor thought this, the voters may have thought that, a couple of lawmakers thought this, everyone's thinking all over the place. But the contract says X, Y and Z. Doesn't matter what these other people are thinking?
Heidi McNeil Staudenmaier: That's how the judge pretty much came down with his ruling.
Ted Simons: What happens from here on this?
Heidi McNeil Staudenmaier: I haven't heard specifically but I would assume that the plaintiffs, the state and the other tribes are contemplating appeal. If they do appeal, the next stop for appealing would be to the 9th Circuit Court of Appeals in San Francisco. So they file a notice of appeal and go through that process. Depending on how that comes out, it could ultimately be appealed all the way to the United States Supreme Court.
Ted Simons: The basis of the appeal would be similar to their argument in this particular case, and that is we understood X but didn't get it in the contract?
Heidi McNeil Staudenmaier: Well, it would be their entire -- this case now is done. They had a lot of claims in the case. The judge entered summary judgment on every single claim now. If they are going to the 9th Circuit Court of Appeals, I would assume they are going to look back at the claims and determine the most powerful, and put their best case forward. Obviously they have to get through this judge's analysis, which is pretty solid.
Ted Simons: Now, as far as -- I know Glendale's had this effort to annex land. That is in court, as well. Where does that stand?
Heidi McNeil Staudenmaier: Well, that lawsuit was sent back to the secretary of the interior who had made a decision -- it was either earlier this year or last year, about taking the land in a trust, saying that it did qualify under the federal statute that's applicable here. But they want the secretary -- the judge in that case wants the secretary to take another look at it and determine whether or not, because this land is surrounded by the City of Glendale on three sides, whether that somehow takes it out of the category for qualifying. You know, so the secretary is going to have to reexamine that issue, and make another decision in terms of whether the land should be taken in a trust, or maybe the secretary may make a totally different decision.
Ted Simons: Right now the city is enjoined and blocked from annex, the land and the tribe is blocked from annexing the trust until this is figured out. Don't we have county islands all over the place?
Heidi McNeil Staudenmaier: I would suspect we do.
Ted Simons: From a distance it sounds somewhat similar. We'll see how the interior department does on that one. Thanks for your help in explaining all this. Thank you.
Heidi McNeil Staudenmaier: Good to see you, thank you.
Impact of Voting Rights Ruling
- The United States Supreme Court ruled against a key part of the Voting Rights Act of 1965. That provision required some states, including Arizona, to get pre-clearance from the federal government for changes in election laws. The Arizona Independent Redistricting Commission draws maps for congressional and legislative districts. Joe Kanefield, an attorney for the commission, will talk about the impact of the ruling on the commission.
- Joe Kanefield - Attorney, The Arizona Independent Redistricting Commission
| Keywords: law
, voting rights
Ted Simons: The U.S. Supreme Court recently ruled against a provision in the Voting Rights Act that required some states, including Arizona, to get preclearance from the federal government for changes in election laws. The Arizona Independent Redistricting Commission draws maps for congressional and legislative districts and was subject to preclearance. Joe Kanefield, an attorney for the commission joins to us talk about the ruling on the commission. Thanks for joining us.
Joe Kanefield: Thanks, Ted.
Ted Simons: You're thought on this preclearance ruling. Surprised at this?
Joe Kanefield: No. The court had already decided that question a few years before, where they had at least telegraphed that they had some concerns about the viability of the preclearance requirement in a decision about five or six years ago. This decision actually teed it up and struck it down. It does not come as a surprise.
Ted Simons: Preclearance, if you're making any election law changes, gotta get the Department of Justice's federal approval first.
Joe Kanefield: Yes.
Ted Simons: With that in mind, the redistricting commission has to keep federal guidelines in line. What does this ruling do to the commission's efforts?
Joe Kanefield: At this point the maps are done. The commission drew its maps, the congressional and legislative maps. They were precleared by the Department of Justice in 2012, for the first time in state history since we became covered by the jurisdiction. They are the maps that will be used for the rest of the decade. Unless there's a court ruling otherwise they are our maps.
Ted Simons: Is that the only way that could be done, by a court ruling? There's one out there already. By the way, something happen out there?
Joe Kanefield: Today we received a state court action challenging the federal map, the congressional map. The federal court proceeding challenges the state map.
Ted Simons: Convenient.
Joe Kanefield: We have been waiting for a decision on the federal court on whether or not the state legislative map is constitutional. That case was primarily a challenge based on the equal protection clause. Not all the districts were the same population. The argument was because there was a deviation they have to be justified and the plaintiffs don't believe they are. Today we received an order asking for briefing from both parties on the question of what impact or what effect the Shelby County case, the U.S. Supreme Court case that struck down the coverage formula in the Voting Rights Act has on this case. We will now have an opportunity to brief the court on this question over the next three or four weeks.
Ted Simons: There is a possibility that more drawing could be done. If more is done, this ruling does place a factor?
Joe Kanefield: Well, it could, yeah. Remember, at all times during this drawing, section 5 of the Voting Rights Act was the rightful idea. If section 5 was no longer the law of the land and we go back to the drawing board, we have to wrestle with what impact this ruling has. Something we mustn't forget under the Voting Rights Act, because section 5 may no longer be effective, section 2 still applies. You can't violate the voting rights, it's still a cause of action.
Ted Simons: So basically you don't have to necessarily get preclearance, but you've still got to follow the rules.
Joe Kanefield: It's shifts the burden to surrender coverages of jurisdiction because any election law, procedure or policy goes into effect you have to prove to the Department of Justice or the federal court in Washington, D.C. it would not have an effect on certain language or minority groups. If someone believes there would be a discriminatory effect on these language minority groups in Arizona, then they could bring an action. If that was the case, the Court would strike it down.
Ted Simons: Regarding these minorities requirements, it looks from a zaps like that would change somewhat. How did those communities of interest apply? Did they become more powerful because of retirement requirements?
Joe Kanefield: Not necessarily. The drafters of the constitutional provisions, the redistricting in Arizona, the way they set forth those provisions you had to complete with the United States Constitution, the Voting Rights Act, respect communities of interest. Competitiveness when practicallable. All of this has to be taken into consideration, not just by this commission but all future commissions while these remain in effect.
Ted Simons: You mentioned this is the first time the maps have been drawn and gotten immediate approval from the Justice Department. Does that suggest this preclearance is somehow needed?
Joe Kanefield: That's a good question. I'm sure certainly people would argument a good argument, they were compelling. The courts below the U.S. Supreme Court should still be in place. My experience as a former election official were that most of the time this requirement prevented us from implementing very technical changes to the law that now would help our elections run much more efficiently. There won't be that burden on the front end that took up some time and a lot of times these election laws and procedureses are put in place initially before the law. My hope is not having the prerequirement law in Arizona will help reducing lines at the pole and stuff like that. Without having that requirement destructing them on the front end.
Ted Simons: Would you be surprised if either of these suits, if either one of those goes back to the commission?
Joe Kanefield: Remember, I'm counsel for the commission.
Ted Simons: Yes.
Joe Kanefield: We've been in court advocating against these lawsuits. We of course take the position that what the commission did was wholly in compliance with the federal and state constitutional requirement as and that the right decision would be to uphold these maps and not force the commission back to the drawing board.
Ted Simons: Thanks for joining us.
Joe Kanefield: Thank you, Ted.
Ted Simons: And that is it for now. I'm Ted Simons, thank you so much for joining us, you have a great evening.
Legislative Environmental Issues
- The state legislature is not getting good marks for its work on the environment from one local organization. Sandy Bahr of the Grand Canyon Chapter of the Sierra Club will talk about legislation she says put at risk health and safety; public lands, wildlife habitat, and cultural resources.
- Sandy Bahr - Sierra Club, Grand Canyon Chapter
| Keywords: environment
Ted Simons: The Grand Canyon chapter of the Sierra Club is not giving state lawmakers high marks for their work on the environment in the past legislative session. Sandy Bahr, director of the Grand Canyon chapter of the Sierra Club is here to explain. Thank you so much for joining us.
Sandy Bahr: Pleasure to be here.
Ted Simons: Doesn't sound like you were that pleased by what happened this go-round.
Sandy Bahr: It was quite disappointing. We started the session thinking the legislature might step up and address some of the environmental problems We face, promote renewable energy, energy efficiency. At least do a few things to protect land and water and air. The whole session was spent trying to stop those bills that undermined protection.
Ted Simons: Did Medicaid expansion play a factor in some of the laws you were wanting to see or see blocked?
Sandy Bahr: I think the legislators were not as focused on -- and in some ways that's a good thing, there might have been more bad bills. But they weren't as focused on environmental protection.
Ted Simons: I did see a funding increase for State Parks. That would be a good thing.
Sandy Bahr: There was additional funding included in the budget bill for State Parks and that's a possible. Parks have been hit very hard over the last several years. They didn't sweep the Parks' fund, but also didn't reinstate a fund they took away, the Arizona Heritage Fund. They had swept that and repealed it a few years ago and didn't reinstate it now that the budget was looking a little better. That was disappointing, as well.
Ted Simons: Still no dedicated funding source?
Sandy Bahr: Nope. Every year it's a struggle to keep our Parks funded.
Ted Simons: Let's take a look at some of the bills I know you were focused on yourself. Health and safety audit privilege. What was that all about?
Sandy Bahr: We called it the Polluter Protection Act. That bill allowed companies to do an audit and keep information in the audit secret. That focused on environmental protections. This bill expanded that idea to health and safety protections. So if a company does an audit and find violations of health and safety laws, harm to people even, they get to keep that information secret in this audit. And none of that information can be used in any kind of a civil proceeding, any kind of fine or action against the company.
Ted Simons: I know the rationale for this, though, was it provides incentives to do internal audits and to fix those problems without having to worry about what comes later. Valid argument there?
Sandy Bahr: Well, we don't have a problem with programs that actually do provide incentives for doing the right thing. But this type of program is the wrong direction. It provides a shield of secrecy. It really protects the bad actors. If you had repeat violations or you were doing things consistently to harm the public, you could hide it in these audits. We think sunshine will bring more environmental protection and protection of our health and safety.
Ted Simons: But if they are not hidden in these audits, fair game?
Sandy Bahr: That's correct. But if you're a big company and you have a lot to hide you're probably going to be doing an audit.
Ted Simons: The use authority of off-highway vehicles, what was that about?
Sandy Bahr: That was partly Arizona Game and Fish having a power struggle with the federal government. The bottom line is the bill allowed game and fish officers, as well as the sheriffs, to ignore harm to public lands, especially public lands that have been protected from off-highway vehicles. So say there's somebody ripping up a wilderness area or a river or a stream, important wildlife habitat, they can't actually do any enforcement if it's on public land that has been closed to off-highway vehicles.
Ted Simons: Are you saying they can't do any enforcement or gives them flexibility to choose?
Sandy Bahr: No, it's actually prohibited on the closed lands. They have the option of enforcing the wildlife habitat protections on any land. But on the closed lands they can't do enforcement.
Ted Simons: I know county sheriffs and game and fish were very much responsible for this bill. Why were they so much for it?
Sandy Bahr: Well, game and fish didn't get everything it wanted from the Forest Service and one of the travel management plans, so it decided to say, we're not going to do enforcement. The very sad thing is they went back on an agreement. There was a bill several years ago where they got funding for seven full-time officers to do specifically off-highway vehicle enforcement. And now they are going back on that agreement.
Ted Simons: When game and fish says the new federal rules that many thought were too restrictive and the bill addressed, they put in reasonable restrictions on hunting, fishing and camping, you would say --
Sandy Bahr: Not at all. Not at all. They protect resources. In fact, a lot of people who hunt, fish and camp don't want to have an ATV driving through the middle of their campsite. They want a little bit of quiet recreation. Ultimately what we're talking about is protection of resources, protection of wildlife, wildlife habitat. And having off-highway vehicle it is ripping up habitat and disturbing wildlife, that's not going to be good for hunters or wildlife overall.
Ted Simons: There is a middle ground from what you would like to see and what the federal restrictions are and what this bill, this law does? Is there a compromise in there somewhere?
Sandy Bahr: There's a lot of land open to off-highway vehicles out there. There are a lot of roads throughout our national forests, the BLM land. There are some areas that are closed and they are closed to protect resources.
Ted Simons: I know Sierra Club was interested in changes to citizens referendums.
Sandy Bahr: House bill 2305, they did the Christmas tree approach, put everything but the kitchen sink in there. Bottom line, initiatives and referenda, they are an important check on the power of the legislature. The legislature's never liked them. They would like more power. Each session we see several bills that aim at weakening citizens' rights to initiative and referenda. A lot of them didn't pass, this session was no different. This bill makes it more difficult to put an initiative or referendum on the ballot. It makes it easier to throw things out on a technicality.
Ted Simons: Last question: What didn't pass that you see as a victory?
Sandy Bahr: House Bill 2404, a bill to weaken energy efficient building codes. It was measure that basically prohibited local governments from implementing strong building codes. And these energy efficient building dozed save a lot of money, save consumers a lot of money, they save a lot of energy and that results in less pollution and less water use. It's a win-win-win. This time the home builders did not get that bill through.
Ted Simons: Were you surprised by that?
Sandy Bahr: I was very surprised by that. The home builders usually get what they want from the Arizona legislature.
Ted Simons: What do you want to see? What are you gearing up for next session?
Sandy Bahr: We would like to see legislators step up and look at our parks and look at energy issues and say, how can we do better? You know, Arizona is a sunny state. What can we do to help promote solar energy in our state? How can we help ratepayers and individuals in their homes save energy and also reduce pollution. What can we do to protect our parks and wildlands. And by the way, how about if we reinstate the Arizona Heritage Fund, $10 million they had swiped that the voters had approved, time to put it back and fund things like trails, historic preservation and cultural resources.
Ted Simons: Sandy, thank you.
Sandy Bahr: Thank you.