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Dog track owners sell to Menominee but sue against 'illegal industry'

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KENOSHA, Wis. - Owners of a greyhound racetrack are telling the Wisconsin Supreme Court that Indian gaming is an "illegal industry" even though they have agreed to sell their grounds to the Menominee Indian Tribe for a casino.

The irony, which will reach full force at oral arguments scheduled for Jan. 27, results from a long-standing suit charging that Indian gaming compacts violate the Wisconsin constitution. The Dairyland Greyhound Park filed the challenge in October 2001 when it saw its pari-mutuel betting handle cut almost exactly in half over the preceding decade.

The track kept the suit going even while it negotiated to sell itself to the Menominee Tribe and a group of local businessmen. Although the first deal fell through, the tribe recently announced that it had signed an option to buy the track, with financing from the Mohegan Indian Tribe of Connecticut. The final sale depends on whether its plans for a Class III casino and entertainment complex receive the full range of approvals, including agreement by the Secretary of Interior to take the land into trust for the tribe.

Dairyland owners decided they couldn't drop the suit while the deal could still go sour. In the course of the suit, they have repeatedly denied any inconsistency.

"From the outset," the track owners said in a court filing, "Dairyland has made it clear that it has brought this claim because illegal and unfair competition from casino gambling is destroying its $45 million business. If Dairyland could avoid any ongoing loss by selling its facility at approximately its cost, it would have no ongoing threat of injury and would not be bringing this litigation."

Defendants in the suit are Wisconsin Governor Jim Doyle and an aide, replacing the previous governor Scott McCallum. The tribes could not be sued because of sovereign immunity, but an appeals court held that the case could go forward without them. Ten of the state's 11 tribes have filed amicus curiae (friend of the court) briefs commenting on the issues.

The suit contends that a 1993 amendment to the Wisconsin constitution expressly outlawed casino gambling in the state and that several governors ignored the state law in renewing tribal gaming compacts in 1998 and 2003. The compacts were first negotiated in 1991, for a seven-year period with renewal for another five years. The 2003 round of compacts expanded the range of table games and, crucially for tribal long-term financing, have no expiration date.

Gov. Doyle, a Democrat, has supported tribal gaming over the opposition of the Republican-controlled legislature. As Attorney General in 1992, he issued an opinion upholding the legality of the original compacts.

Defending against the suit, State Attorney General Peg Lautenschlager has argued that the constitutional amendment didn't apply to tribal compacts already in effect or to their renewal.