LEWISTON — Maine's newest casino will remain open while environmental officials revisit the development permit review process less than two months after the casino opened for business, officials said Monday.
On Wednesday, the Board of Environmental Protection permit granted in July 2011 for development of the Oxford Casino was vacated after a Superior Court justice found the BEP violated its rules and state law in approving the permit.
Attorney Stephen Hinchman, who represents the Androscoggin River Alliance in the lawsuit against casino owner Black Bear Development and the Department of Environmental Protection, said that given the court's decision to vacate the permit, the DEP is violating state law by allowing the casino to stay open.
DEP officials said the agency will follow the judge's order to reopen the development permit process, but that it has no intention of telling the Oxford Casino to shut its doors.
Attorney David Van Slyke, who represents the casino in this case, said in a statement, "We have been asked to comment on the recent Kennebec County Superior Court decision regarding one permit issued for the development of the Oxford Casino. This decision deals with certain technical aspects of one of the Oxford Casino’s DEP permits regarding project phasing under the Maine Site Location of Development Act. The court’s decision did not indicate in any way that the casino poses any environmental harm, and the decision does not require the casino to shut down. The Oxford Casino is in agreement with the position of the DEP and the (Attorney General's) Office in this case and will continue to cooperate with the DEP and all regulatory agencies."
In a 10-page decision, Kennebec County Superior Court Justice Michaela Murphy ruled that the DEP wrongly granted a development permit to Black Bear Development last year for considering just the first phase of the three-phase Oxford Casino project. Murphy vacated the development permit and ordered the permit application be sent back to the DEP for further consideration.
DEP officials and staff from the Attorney General's Office met Monday to discuss the court’s decision, with both agencies expressing disappointment in Murphy's ruling.
Casino owner BB Development LLC pursued the development in good faith and in accordance with the permit issued by the department, DEP officials said in a statement.
"No allegation by the appellant or findings by the court since have shown this development has caused any environmental degradation, nor did the appellant seek a stay of the construction of the project," according to the DEP.
On Sunday, Hinchman said the segmented process by which the DEP reviewed the Oxford Casino permit has never been done in the 40-year history of state permitting procedure. The provision in Maine’s Site Location of Development Act to review permits for projects at full build-out rather than in pieces “has never been in question before,” he said.
“Frankly, the problem here is we had a new administration and they didn’t like the law and they tried to change it by executive fiat,” he said.
“It’s too bad that (Gov. Paul) LePage tried to ram through a permit based on political power instead of getting a permit based on good science and compliance with the law,” which he said has placed Black Bear Development in its current “pickle.”
On Monday afternoon, Adrienne Bennett, director of communications for LePage, said “the governor did not have any involvement in that decision-making process.”
In her ruling, Murphy wrote that all phases of projects must be considered in the permitting process. This is required, she wrote, because it “would be senseless, and contrary to the legislative intent, to allow applicants to circumvent” state law “by remaining silent about those long-term impacts that can be reasonably anticipated, and about which evidence is available” for multiphase projects.
Hinchman criticized Black Bear Development for moving forward with casino construction even after the alliance filed suit, saying it’s not a smart way to do business to “build your project as quickly as you can and dare a court to shut you down.”
Hinchman believes the DEP is obliged to force the casino to close pending approval of its Phase I permit. And, if the DEP isn’t willing to do that, he said, the Maine Gambling Control Board can and should.
Patrick Fleming, executive director of the gambling board, said the five-member board "determined that this is not a Gambling Control issue," in an email Tuesday. He said the board has no plans to shut down the casino based on the DEP permit. "The Oxford Casino met all the requirements for licensing and have not violated the gambling statutes which are the jurisdiction of the Gambling Control Board."
Ronald Hamilton of Oxford, a plaintiff in the River Alliance lawsuit against the DEP and Black Bear Development, said he doesn't think the DEP will shut down the casino, but he does expect some kind of "out of court settlement." He joined the suit, he said, because he wanted to hold the casino accountable for its effect on the environment.
Hamilton lives about a mile from the casino on property served by a private groundwater well. He and his wife, who is also a plaintiff, are concerned that the casino will result in pollution to surface waters of surrounding ponds and groundwater, which could impact their drinking water source and enjoyment of local water for recreation.
Dennis Bailey of CasinosNo!, who has actively campaigned against casino projects in Maine for years, said the DEP’s decision to allow the casino to remain open while it reviews its Phase I permit sets a bad precedent. “It's basically telling developers to go ahead with your projects even without proper permits, and there will be no consequence later on if it turns out otherwise.”
The Associated Press contributed to this report.