The Ho-Chunk Nation is pushing back against a rival tribe's lawsuit seeking to halt the Ho-Chunk's plans to expand a northern Wisconsin casino, arguing in new filings that the lawsuit has little chance of success and a judge should reject it.
The Ho-Chunk filed a brief Thursday contending that the Stockbridge-Munsee Band of Mohicans' preliminary injunction demand is an extraordinary remedy to the all-too ordinary business problem of competition.
Continue Reading Below
"Even if (the Stockbridge-Munsee's) allegations are accepted at face value, they amount to nothing more than a poorly disguised attempt to protect its revenue stream by interfering with the business operations of a competitor," the brief said.
Stockbridge-Munsee spokeswoman Megan Hakes said the tribe remains confident.
"All we are seeking is fair enforcement of gaming compacts for all tribes," she said in an email.
The dispute centers on the Ho-Chunk's efforts to add hundreds of slot machines, table games, a restaurant and a hotel to its casino in Wittenberg, about 20 miles east of Wausau. Construction is already underway.
The Stockbridge-Munsee Band of Mohicans runs the North Star casino-resort about 20 miles east of Wittenberg and fears the Ho-Chunk expansion will hurt the North Star's profits. The Stockbridge-Munsee filed a federal lawsuit last month against the Ho-Chunk and the state arguing that the Ho-Chunk's gambling compact allows only an ancillary facility, an operation where less than half the revenue comes from gambling, in Wittenberg. It says the planned expansion would be larger than that.
The lawsuit also argues the Ho-Chunk can't legally offer gambling in Wittenberg at all. Federal law prohibits gambling on trust land acquired after 1988. The Ho-Chunk received the land from the Native American Church in 1969 contingent on building housing on it in five years. No housing construction occurred in that span so the land technically reverted back to the church in 1974, the lawsuit alleges. The Stockbridge-Munsee want a preliminary injunction halting construction while the lawsuit is pending.
The Ho-Chunk argued in its brief that the Stockbridge-Munsee hasn't shown its lawsuit has any chance of succeeding and both the Ho-Chunk and the state are immune from such actions.
The Ho-Chunk amended its compact with the state in 2003 to redefine an ancillary facility as one where non-gambling business operations make up at least half of the activities on the property, making revenue irrelevant, the filings said.
As for whether it has the right to offer gambling on the land, the Ho-Chunk tribe argued that it built housing for church members on the site shortly after the 1969 deed was signed, fulfilling the housing condition to retain the land and church leaders acknowledged as much in 2008 when the Ho-Chunk first opened a casino on the property. Even if a deed condition wasn't satisfied, the Ho-Chunk wouldn't have automatically lost the land under state and federal law, the filings contend.
The Ho-Chunk also argued that a preliminary injunction would hurt them more than the Stockbridge-Munsee. An injunction would result in construction delays that would create fears among workers about job security and cost thousands of dollars in lost revenue daily. It also would interfere with the Ho-Chunk's right to self-government on its lands. If a judge issues an injunction the Stockbridge-Munsee should be required to post a bond of at least $10 million to protect the Ho-Chunk from potential damage.
The Stockbridge-Munsee's fears of losing revenue at the North Star are speculative, the Ho-Chunk said. The tribe can always withhold gambling payments to the state as a way of saving money, the filings said. The Stockbridge-Munsee already has warned Gov. Scott Walker's administration that it intends to withhold $923,000 in payments over the dispute.
Follow Todd Richmond on Twitter at https://twitter.com/trichmond1