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United States Court of Appeals for the First Circuit
August 1, 2012, Decided
[*4] LYNCH, Chief Judge. This appeal raises a constitutional challenge to certain provisions of a 2011 Massachusetts law, "An Act Establishing Expanded Gaming in the Commonwealth" ] (the Massachusetts Gaming Act), 2011 Mass. Acts ch. 194 (largely codified at Mass. Gen. Laws ch. 23K), which sets procedures and standards for authorizing legalized gaming in the Commonwealth of Massachusetts.
KG Urban Enterprises, LLC, a potential applicant for a gaming license, argues that § 91 of the Act provides unauthorized preferences to Indian tribes and on that basis [**2] treats the southeast section of the state differently, and this constitutes a classification on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment and is inconsistent with Congressional intent in the federal Indian gaming statute.
We affirm the denial of KG's request for injunctive and declaratory relief as to § 91, reject the remainder of KG's claims, vacate the district court's dismissal of the complaint, and remand for such further proceedings as may be appropriate.
This case involves two statutory schemes, one state and one federal. The state scheme is the Massachusetts Gaming Act. The federal scheme is the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721, which establishes a cooperative federal-state-tribal regime for regulating gaming by federally recognized Indian tribes on Indian lands.
A. The Massachusetts Gaming Act
] The Massachusetts Gaming Act was enacted on November 22, 2011. The Act establishes "a Massachusetts gaming commission" (the Commission), which consists of five commissioners, defendants here. Mass. Gen. Laws ch. 23K, § 3(a). The Commission is the principal entity charged with implementing the provisions of the Act, [**3] including the licensing scheme at issue.
The Act authorizes gaming through the Commission's issuance of "Category 1" and "Category 2" licenses. A category 2 license, not at issue here, allows the licensee "to operate a gaming establishment with no table games and not more than 1,250 slot machines." Id. § 2. A category 1 license "permits the licensee to operate a gaming establishment with table games and slot machines." Id.
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693 F.3d 1 *; 2012 U.S. App. LEXIS 15903 **; 2012 WL 3104195
KG URBAN ENTERPRISES, LLC, Plaintiff, Appellant, v. DEVAL L. PATRICK, in his official capacity as Governor of the Commonwealth of Massachusetts; CHAIRMAN AND COMMISSIONERS OF THE MASSACHUSETTS GAMING COMMISSION, in their official capacities, Defendants, Appellees.
Subsequent History: As Amended August 21, 2012.
Prior History: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Nathaniel M. Gorton, U.S. District Judge.
KG Urban Enters., LLC v. Patrick, 839 F. Supp. 2d 388, 2012 U.S. Dist. LEXIS 20524 (D. Mass., 2012)
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