A federal judge on Wednesday dismissed the Ho-Chunk Nation from a lawsuit by a rival tribe protesting the expansion of the Ho-Chunk Nation’s northern Wisconsin casino, saying the lawsuit was filed at least three years too late.
U.S. District Judge James Peterson said that the Stockbridge-Munsee Band of Mohicans, who had sought a preliminary injunction blocking slot machines and table games in the expansion of the Ho-Chunk casino in Wittenberg, should have filed its lawsuit before 2014, the end of a six-year statute of limitations.
The Stockbridge-Munsee have known about gaming compact violations it alleges were committed by the Ho-Chunk since the Ho-Chunk opened a casino there in 2008, he wrote.
Since 1992, the Stockbridge-Munsee Band has operated the North Star Casino Resort about 20 miles east of Wittenberg and feared that an expansion of the Ho-Chunk casino would hurt its profits. The Ho-Chunk plan to add more than 200 slot machines, 10 gaming tables, a hotel, a restaurant and a bar at the site.
Wittenberg is about 25 miles east of Wausau, in Shawano County.
The Stockbridge-Munsee also assert that the state has failed to enforce its gaming compact with the Ho-Chunk, and have threatened to withhold nearly $1 million in payments to the state, which they have said would be an unlawful tax in light of the gaming compact violations they allege.
“Here it is entirely reasonable to expect the Stockbridge-Munsee to have sued the Ho-Chunk over the operation of the Wittenberg casino well before 2014,” Peterson wrote. “They have known the facts supporting each element of their claims since 2008. They could have sued the Ho-Chunk then. Instead, they acquiesced to the Wittenberg casino for nearly a decade until the Ho-Chunk decided to expand. In other words, the Stockbridge-Munsee had six years to call attention to the Wittenberg casino’s alleged violations of the Ho-Chunk Compact, but failed to do so.”
Peterson’s decision granted the Ho-Chunk Nation’s motion for a judgment based on written material submitted so far, and dismissed the Ho-Chunk from the lawsuit. He dismissed the Stockbridge-Munsee’s motion for a preliminary injunction barring the Ho-Chunk from operating any of the slot machines and gaming tables in the expansion.
Peterson did not decide whether the Stockbridge-Munsee’s claims against the other defendants in the case — the state of Wisconsin and Gov. Scott Walker — are similarly late. While the state and Walker haven’t asked for dismissal, Peterson wrote, he will allow them to address the timeliness issue.
“Should the Stockbridge-Munsee fail to show that its claims against the state are timely, the court will dismiss the claims against the state,” Peterson wrote.
Megan Hakes, spokeswoman for the Stockbridge-Munsee Band, said the tribe “is reviewing the just-issued order and its options.”
Ho-Chunk spokesman Collin Price said this was the decision that was expected and hoped for, “so we’re happy the court ruled in our favor.”
Price said the project is about 85 percent complete, and that the gaming floor will open on Nov. 1, with the hotel and the rest of the project to be finished in February.
According to Peterson’s decision, the Stockbridge-Munsee say the Ho-Chunk casino in Wittenberg violates the Ho-Chunk gaming compact because the land where it is located was acquired in trust after October 1988, making it ineligible for gaming.
The Stockbridge-Munsee argued that every day the Ho-Chunk casino operated, it was a continuing violation of its compact, so that the statute of limitations runs from the date of the last violation. Peterson wrote that while that was a closer call, it’s a narrow exception that doesn’t save the tribe’s claim.