Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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1 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS KG URBAN ENTERPRISES, LLC ) ) Plaintiff, ) ) v. ) Case No. 1:11-cv ) DEVAL L. PATRICK, in his ) official capacity as Governor of ) LEAVE TO FILE GRANTED ON the Commonwealth of Massachusetts, and ) NOVEMBER 30, 2011 ) ) CHAIRMAN AND COMMISSIONERS ) OF THE MASSACHUSETTS GAMING ) COMMISSION, in their official capacities ) ) Defendants. ) ) REPLY IN SUPPORT OF PLAINTIFF S MOTION FOR A PRELIMINARY INJUNCTION Paul D. Clement (pro hac vice) Jeffrey M. Harris (pro hac vice) Brian J. Field BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C (202) Kevin M. Considine, BBO # Alexander Furey, BBO # CONSIDINE & FUREY, LLP One Beacon Street, 23rd Floor Boston, Massachusetts (617) Counsel for KG Urban Enterprises, LLC

2 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 2 of 16 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii I. KG S CLAIMS ARE RIPE FOR REVIEW... 2 II. KG IS OVERWHELMINGLY LIKELY TO SUCCEED ON THE MERITS... 4 A. The Act Violates the Equal Protection Clause and Declaration of Rights... 4 B. The Act Conflicts with, and Is Therefore Preempted by, IGRA... 8 III. KG MEETS THE REMAINING PRELIMINARY INJUNCTION CRITERIA CONCLUSION... 11

3 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 3 of 16 TABLE OF AUTHORITIES Cases Artichoke Joe s v. Norton, 353 F.3d 712 (9th Cir. 2003)... 6 Ass n for Fairness in Business v. New Jersey, 82 F. Supp. 2d 353 (D.N.J. 2000) Batterman v. Leahy, 544 F.3d 370 (1st Cir. 2008) California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)... 6 Carcieri v. Salazar, 555 U.S. 379 (2009)... 7 Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F. Supp. 2d 295 (W.D.N.Y. 2007)... 7 Cortez III Service Corp. v. NASA, 950 F. Supp. 357 (D.D.C. 1996) CRAssociates v. United States, 95 Fed. Cl. 357 (Ct. Fed. Cl. 2010) Duke Energy v. Davis, 267 F.3d 1042 (9th Cir. 2001)... 9 Flynt v. California Gambling Commission, 104 Cal. App. 4th 1125, 1145 (2002)... 6 Hartman v. Kickapoo Tribe, 319 F.3d 1230 (10th Cir. 2003)... 9 Morton v. Mancari, 417 U.S. 535 (1974)... 5 O Donnell Construction v. District of Columbia, 963 F.2d 420 (D.C. Cir. 1992) Penobscot Nation v. Key Bank, 112 F.3d 538 (1st Cir. 1997)... 5 Plains Commerce Bank v. Long Family Land Co., 554 U.S. 316 (2008)... 5 Retail Indus. Ass n v. Fielder, 475 F.3d 180 (4th Cir. 2007)... 2 ii

4 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 4 of 16 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)... 9 United States v. Antelope, 430 U.S. 641 (1977)... 5 United States v. Garrett, 122 Fed. Appx. 628 (4th Cir. 2005)... 6 Washington v. Yakima Indian Nation, 439 U.S. 463 (1979)... 5 Constitutional Provision & Statutes U.S. Const., art. I, U.S.C. 2719(a)... 7 An Act Establishing Expanded Gaming in the Commonwealth, St. 2011, c Other Authorities Dan Ring, Ameristar Casinos Plans To Close Deal for Springfield Land (Dec. 29, 2011), available at nevada_is.html Massachusetts Comments on Mashpee Wampanoag Tribe s Land-in-Trust Application (Feb. 5, 2008)... 7 Noah Bierman, Casino Would Create Jobs, Keep Bucolic Feel, Pair, Boston Globe (Dec. 6, 2011), available at /business/ _1_ casino-proposal-gambling-facilities-macau S. Rep. No (1988)... 6 Tribes Eager to Make Play for Region s Casinos, Cape Cod Times (Nov. 23, 2011)... 3 iii

5 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 5 of 16 Massachusetts brief is remarkable for what it concedes. It admits that multiple aspects of the Act exclude individuals from valuable government opportunities based only on the fact that they are not Indian tribes or tribal members. It also concedes that, while the rest of Massachusetts is open to free competition where considerations of race play no role, and considerations of economic development will carry the day the Southeastern region is different. There, no one other than members of federally recognized Indian tribes need apply. Never mind that this region is more in need of economic development than any other and never mind that KG has invested millions of dollars with the modest hope of competing on a level playing field in the Southeast there will be no competition. Unless you are an Indian tribe, the entire region is off-limits. Massachusetts efforts to dismiss KG s claims as unripe fail. KG complains about the immediate denial of its opportunity to compete for a gaming license in the Southeast. No one can deny that KG cannot compete now, or that competition in earnest is beginning in the rest of the state. There is a reason why multiple gaming operators are targeting the less-lucrative Western region, while the Southeast lies fallow. Any suggestion that KG must await every detail as to how Massachusetts plans to discriminate before it can obtain a ruling on the merits is not tenable. Massachusetts defense on the merits fares no better. Implicitly acknowledging that its racebased elimination of competition in the Southeast could not survive strict scrutiny, Massachusetts stakes its entire defense of the Act on the proposition that because it is discriminating in favor of federally recognized Indian tribes and not some other racial group only rational basis review applies. Massachusetts seems to recognize that if the Act s race-based provisions favored individual Native Americans or tribes that had not been federally recognized, strict scrutiny would apply, but it contends that the insertion of the words federally-recognized allows it to discriminate. Not so. States are differently situated from the federal government when it comes to dealing with Indian tribes, whether or not those tribes are federally recognized. The federal

6 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 6 of 16 government can rely on the Indian Commerce and Treaty Clauses of the Constitution as authorization to treat Indian tribes differently from non-tribal entities. A state cannot. Massachusetts attempts to characterize the Act as simply implementing the federal Indian Gaming Regulatory Act ( IGRA ), but that characterization does not pass the straight-face test. The Act is in no way authorized by IGRA, which creates a uniform federal regime for Indian gaming. IGRA permits tribal gaming only on Indian lands, yet, of the two federally recognized tribes in Massachusetts, the Mashpee Wampanoag have no Indian lands at all, and the Aquinnah have sought to acquire new lands on which to open a casino. The Act, moreover, forecloses competition throughout an entire region, well beyond any Indian lands, and imposes conditions on tribes continued exclusivity in the Southeast that have no basis in IGRA. Indeed, IGRA affirmatively preempts Massachusetts effort to construct a separate tribal gaming regime in an effort to extract additional tax revenues from the tribes. But whether or not IGRA preempts the Act, it certainly neither compels nor authorizes it. Without the fig-leaf of IGRA, it is clear that this statesanctioned discrimination violates the fundamental guarantee of equal protection. The other preliminary injunction factors are satisfied, and the Act must be enjoined. I. KG S CLAIMS ARE RIPE FOR REVIEW KG s equal protection claims are not premature. KG s injury being denied the opportunity to compete for a gaming license on the merits results directly from the Act itself, which categorically forecloses KG from seeking a license until July 31, 2012, at the earliest, solely because of the race of its owners. See Act 91(e). KG does not need to await the promulgation of regulations detailing the minutiae of the discriminatory apparatus before it can challenge the statute. The Act itself inflicts constitutional injury, and any regulations that were not discriminatory would be ultra vires. 1 The Act prohibits KG from pursuing its project in the Southeast, right now, solely 1 When statutory obligations being challenged are clearly establishe[d], the case is ripe, even though regulations under the Act have not been promulgated. Retail Indus. Ass n v. Fielder, 475 F.3d 180, 188 (4th Cir. 2007). 2

7 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 7 of 16 because it is not a tribe. And, because of the tribal set-aside, there is active and intense competition among several different gaming companies for the commercial licenses in the Western and Boston regions, while the Southeast is a dead zone. See KG Br. 16, KG s claims are clearly ripe. Massachusetts suggests that KG s main concern is that the Governor will negotiate a statelaw compact and that the race-based set-aside that operates at least until July 31, 2012, will become permanent. See Mass. Br. 8. To the contrary, KG s main concern is that right now the Act discriminates against KG on the basis of race and is, at this instant, fundamentally skewing competition for casino licenses statewide, making it impossible for anyone other than a tribe to attract operating partners and investors for projects in the Southeast. In all events, Massachusetts ripeness argument gets things exactly backwards. It suggests that, because there is some uncertainty over whether the statutorily imposed discrimination will continue past July 31, 2012, KG s effort to stop that discrimination now is unripe. That is absurd. Any uncertainty about how long the discrimination will last does not detract one iota from the fact the statute discriminates right now. Moreover, the governor s own public statements refute Massachusetts contention that KG s claims are conjectural, see Mass. Br. 8. Three hours after signing the Act, Governor Patrick met with representatives of the Mashpee Wampanoag tribe and emphasized that we want to make sure we do what we can to partner with the tribe on a commercial license, and that work on a compact will begin as soon as today. 3 Once that compact is signed notwithstanding the Mashpee Wampanoag tribe s lack of Indian land and its legal inability to obtain such land KG will be irrevocably locked out of the market. Judicial intervention is needed, now, to make clear that the Act s two-track application process cannot be reconciled with the Constitution or IGRA. 2 Since KG filed its initial pleadings, at least two more gaming operators (Ameristar and Hard Rock) have announced plans to bid on the Western license. See Dan Ring, Ameristar Casinos Plans To Close Deal for Springfield Land (Dec. 29, 2011), available at Wynn Resorts has also announced plans to bid on the gaming license for the greater Boston area. See Noah Bierman, Casino Would Create Jobs, Keep Bucolic Feel, Pair, Boston Globe (Dec. 6, 2011), available at /business/ _1_casino-proposal-gambling-facilities-macau. 3 See Tribes Eager to Make Play for Region s Casinos, Cape Cod Times (Nov. 23, 2011) (emphasis added). 3

8 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 8 of 16 II. KG IS OVERWHELMINGLY LIKELY TO SUCCEED ON THE MERITS A. The Act Violates the Equal Protection Clause and Declaration of Rights To be clear, no state has ever tried to do what Massachusetts has attempted here. The Act does not accommodate tribes unique ability to conduct gaming on Indian tribal land the Mashpee Wampanoag have no such land. Nor does it attempt to reconcile, through race-neutral means, existing Indian gaming with a new system of commercial gaming. The best that could be said for the Act is that, out of concern that a tribe might eventually be able to qualify for gaming under IGRA, Massachusetts is immediately going to eliminate all competition for a commercial gaming license in a third of the state. No state has ever tried such a maneuver, and IGRA does not authorize, sanction, or compel it. Simply put, the Act discriminates on the basis of race, and the state s IGRA made me do it defense does not hold water. Without the ability to hide behind the federal government s unique authority over tribes, the Act s discrimination is indefensible. Massachusetts acknowledges as much by not even defending the Act under strict scrutiny. 1. Massachusetts does not and cannot dispute that the Act gives a massive preference to Indian tribes that is unavailable to other applicants for a gaming license. It does not dispute that the Act: (1) creates a two-track application process, with one set of procedures for tribal applicants and another (far more demanding) process for everyone else; (2) grants Indian tribes the exclusive right to pursue a gaming license in the Southeast, at least until July 31, 2012, and likely permanently; (3) imposes different substantive criteria for tribal and non-tribal applicants; and (4) treats the Southeast differently, solely because of its proximity to Indian tribes. See KG Br Massachusetts contention that the Act s tribal preferences are political, not racial, see Mass. Br , does not withstand scrutiny. Both federally recognized Indian tribes in Massachusetts have membership criteria that are explicitly based on ancestry i.e., race. 4 Granting 4 The Aquinnah limit enrollment to [a]ny person who can document their direct lineal descent from a specifically identified Gay Head Wampanoag Indian. See 4

9 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 9 of 16 those tribes a preference over other gaming applicants is no different from a categorical preference for Italian-Americans, Latinos, or Mayflower descendants. KG is ineligible to apply for a gaming license until July 31, 2012, at the earliest, and likely permanently, for the sole reason that its owners do not belong to the preferred racial group. There is nothing political about this. The Indian Commerce Clause grants Congress authority to regulate Commerce... with the Indian tribes. U.S. Const., art. I, 8. This Clause and the Treaty Clause allow the Federal Government to enact legislation singling out tribal Indians that might otherwise be constitutionally offensive. 5 The word otherwise is key. It underscores that the federal government can address Indian tribes through legislation that would be unconstitutional if enacted by a state. That, by itself, is sufficient to distinguish the cases cited by Massachusetts regarding differential treatment of Indians or Indian tribes by the federal government. 6 Unlike the federal government, states have no constitutional authority to single out either Indian tribes (federally recognized or not) or Native Americans for differential treatment. States do not enjoy [the] same unique relationship with Indians as the federal government. Yakima, 439 U.S. at 501. Thus, a state may treat Indian tribes differently if and only if it is legislating under explicit authority granted by Congress in the exercise of that federal power [over Indian tribes]. Id. 2. Massachusetts was not legislating under explicit authority granted by Congress when it enacted the race-based set-asides in the Act. The only statute Massachusetts cites is IGRA, but to the extent IGRA grants states any authority, it is limited to Indian lands. Nothing in IGRA remotely authorizes a region-wide ban on non-indian casinos in a state that generally permits commercial gaming, or reserving a seat on a state commission for a tribal member. That does not (Ex. A). The Mashpee Wampanoag similarly limit membership to [p]ersons who trace lineal descent to certain individuals from the 19th century. See (Ex. B). 5 Washington v. Yakima Indian Nation, 439 U.S. 463, (1979) (emphases added). 6 See Morton v. Mancari, 417 U.S. 535 (1974); United States v. Antelope, 430 U.S. 641 (1977). Massachusetts also cites Penobscot Nation v. Key Bank, 112 F.3d 538 (1st Cir. 1997), and Plains Commerce Bank v. Long Family Land Co., 554 U.S. 316 (2008), but neither of those cases addresses the Equal Protection Clause. 5

10 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 10 of 16 mean that Massachusetts lacked the affirmative authority to enact those provisions. But to the extent the Act rests on Massachusetts own legislative authority, and not a delegation of authority from Congress, it must satisfy the more-demanding standard (strict scrutiny) that applies to state laws that treat tribes differently. Massachusetts does not even try to shoulder that burden. IGRA was enacted in 1988 to formulate a system for regulating gaming on Indian lands. S. Rep. No , at 1 (1988). IGRA s connection to Indian lands is not incidental; it is the raison d etre of the statute. IGRA was a direct response to the Supreme Court s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), which limited states ability to regulate gaming on Indian lands. Congress responded by enacting a comprehensive scheme to give states additional authority to regulate gaming on Indian lands, while also recognizing tribes continuing sovereignty. As the Ninth Circuit explained in the decision on which Massachusetts repeatedly relies, IGRA pertains only to Indian lands, and regulates activities only on Indian lands. 7 This limitation is critical, given the well-established connection between tribal lands and tribal sovereignty. Id. A tribe s governing powers and economic rights extend only as far as the borders of Indian lands, and the tribes shed their sovereignty once outside those lands. Id. For that reason, IGRA gives states no authority whatsoever to favor Indian tribes or classify based on race when it comes to gaming outside of Indian lands. 8 Outside of Indian lands, tribes are fully subject to state jurisdiction and state gaming regulation. Accordingly, Massachusetts unprecedented effort to set aside an entire region for a tribe far beyond any existing Indian lands must rest on Massachusetts own authority and satisfy strict scrutiny. While IGRA deals with gaming on Indian lands, the Act extends its preferences to tribes that currently have no such land. Indeed, there are only two federally recognized tribes in 7 Artichoke Joe s v. Norton, 353 F.3d 712, 735 (9th Cir. 2003) (emphases added). 8 The other cases upon which Massachusetts relies most heavily are similarly inapposite because they address IGRAcompliant gaming on existing Indian lands. See United States v. Garrett, 122 Fed. Appx. 628 (4th Cir. 2005); Flynt v. California Gambling Commission, 104 Cal. App. 4th 1125, 1145 (2002). 6

11 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 11 of 16 Massachusetts, and neither currently has federal land-in-trust on which it seeks to conduct gaming. 9 Nor is either tribe likely to obtain land-in-trust in the foreseeable future, if ever. The Supreme Court held in Carcieri v. Salazar, 555 U.S. 379 (2009), that the Secretary of the Interior lacks statutory authority under the Indian Reorganization Act to take land into trust for Indian tribes that were recognized by the federal government after 1934 which includes both federally recognized tribes in Massachusetts. Even if Congress addresses Carcieri, the land-in-trust process is notoriously time-consuming and contentious, often taking a decade or longer and generating opposition from local governments that stand to lose tax revenues, and sometimes other tribes. 10 Implicitly recognizing that a preference for landless tribes does not advance the federal policies embodied in IGRA, Massachusetts asserts that the Act addresses the possibility that a tribe may get federal approval to open a casino on current or future Indian lands. Mass. Br (emphasis added). But IGRA addresses gaming on actual Indian lands, not future or potential Indian lands. Moreover, the official policy of the Department of the Interior is that IGRA does not authorize the Secretary to approve a compact for the conduct of Class III gaming activities on lands that are not now, and may never be, Indian lands of such Indian tribe. 11 Thus, the federal agency responsible for assuring that gaming under IGRA takes place only on Indian lands has rejected the notion that landless tribes can negotiate IGRA-compliant compacts. 12 The Act cannot be said to 9 The Mashpee Wampanoag have no Indian land at all. The Aquinnah have land on Martha s Vineyard but have deemed that parcel unsuitable for gaming and are seeking to acquire a new parcel for a casino, notwithstanding that they are not entitled to operate gaming on any newly acquired land. See KG Br. 9-10; 25 U.S.C. 2719(a). 10 Even before Carcieri significantly curtailed the federal land-in-trust process, Massachusetts actually opposed an application by the Mashpee Wampanoag to have land taken into trust, thus impeding the tribe from meeting a critical precondition to IGRA-compliant gaming. See Massachusetts Comments on Mashpee Wampanoag Tribe s Land-in- Trust Application (Feb. 5, 2008) (opposing land-in-trust application because of concerns regarding, inter alia, environmental compliance, and exempt[ions of] certain activities on those lands from state and local laws ). 11 See Letter from Paula L. Hart, Office of Indian Gaming, to Bert Johnson (June 16, 2010) (Ex. C) (emphasis added). 12 See also Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F. Supp. 2d 295, (W.D.N.Y. 2007) (holding that, before approving a tribal gaming ordinance, the National Indian Gaming Commission Chairman must make an express determination that the gaming in question will take place on Indian lands ); see also Letter from Tracie Stevens, NIGC, to Tohono O Odham Nation (Aug. 24, 2011) (rejecting tribal ordinance for gaming on a parcel of land that has not yet been acquired in trust by the Secretary of the Interior ) (Ex. D). 7

12 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 12 of 16 work in harmony with IGRA, see Mass. Br. 4, by authorizing Massachusetts to negotiate state gaming rights with a tribe that has no Indian land and, therefore, cannot lawfully operate gaming under IGRA. IGRA neither authorizes the Act nor exempts it from the normal rule of strict scrutiny that governs state action that classifies citizens by race. And Massachusetts does not even try to argue that the Act satisfies that demanding standard of review. 13 B. The Act Conflicts with, and Is Therefore Preempted by, IGRA For many of the same reasons outlined above, the Act squarely conflicts with, and is thus preempted by, IGRA. See KG Br Indeed, it appears that the Act was enacted in part to frustrate IGRA s purposes. As Massachusetts admits: [T]he Legislature knew that if the tribe could obtain land and convince the United States to take it into trust, then the tribe may be able to obtain federal approval to engage in class III gaming even if [Massachusetts] refused to negotiate a compact. Mass. Br. 5. The state gets points for candor, but not for compliance with IGRA. IGRA pertains to gaming on sovereign Indian lands, and creates a structure for negotiations between such a tribe and the state in which the Indian lands are located. That is at least a fair negotiation. The Act takes a different path. It takes a tribe without the lands that if acquired and taken into trust by the federal government would give the tribe a federal right to engage in gaming, and grants it a region-wide, race-based monopoly, which it gets to keep merely by negotiating terms with Massachusetts before it acquires any federal land-in-trust. This scheme works for a tribe, because it receives a valuable, region-wide monopoly, even though it has no current federal right to gaming. It also works for Massachusetts, which can maximize the benefits it will receive from the potential Indian casino, by negotiating with a tribe long before the tribe has any right to conduct gaming 13 Indeed, the Act does not satisfy even the lower standard of review applicable to federal actions that treat tribes differently. It is one thing to treat tribes differently for political purposes, and another to legislate in a manner unrelated to the unique sovereign aspects of the tribes. A federal statute limiting gaming to tribes on non-indian land would violate equal protection (and federalism principles to boot). Thus, even if the Act simply implemented IGRA, its extension beyond Indian lands would violate the Equal Protection Clause, in a way that IGRA, which is strictly limited to Indian lands, does not. 8

13 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 13 of 16 under IGRA that would allow it to drive a reasonable bargain. There are only two problems: (1) the race-based preferences and monopoly violate the Constitution; and (2) it cannot be squared with IGRA, which authorizes gaming only on actual Indian lands, not future or potential Indian lands that may never be taken into trust. Massachusetts raises several jurisdictional and procedural defenses to KG s preemption claims. See Mass. Br. 15, But, regardless of the validity of those arguments, this Court must consider whether the Act is authorized by and complies with IGRA in order to decide the equal protection issue. Critically, Massachusetts burden there is higher than on the preemption issue. Even if the conflict between IGRA and the Act is not so great that the former preempts the latter, it certainly belies Massachusetts effort to piggyback on the unique federal constitutional authority to treat tribes differently, which suffices to doom the Act on equal protection grounds. Regardless, Massachusetts jurisdictional defenses to KG s preemption claims lack merit. Massachusetts asserts that KG s claims are barred by Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). See Mass. Br. 15. That argument is based on a mischaracterization of both Seminole Tribe and KG s claims. Unlike the tribe in Seminole Tribe, KG is not bringing an IGRA claim. Nor is it attempting to use section 1983 to create a private right of action under a statute that does not confer one. Instead, KG has brought suit under section 1983 and the Supremacy Clause in order to invalidate a state statute. See Compl When a party seeks to vindicate the Constitution, and not a federal statute, Seminole Tribe is no obstacle. 14 Massachusetts further asserts that Pullman abstention is warranted before any finding that the Act conflicts with federal law. See Mass. Br. 17. While some provisions of the Act are not a model of clarity, the relevant provisions are crystal clear. Massachusetts does not dispute that the 14 See Duke Energy v. Davis, 267 F.3d 1042, 1055 (9th Cir. 2001) (Seminole Tribe applies only to actions brought to enjoin state officials from on-going violations of federal statutory rather than constitutional law ). Hartman v. Kickapoo Tribe, 319 F.3d 1230, (10th Cir. 2003), is also not to the contrary. The court held in that case that an employee of a tribal casino did not have an implied right of action under IGRA to raise claims premised on alleged violations of IGRA. KG is not suing under IGRA it is suing under the Supremacy Clause. 9

14 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 14 of 16 Act singles out Indian tribes for preferential treatment, and extends those preferences to tribes that have no Indian lands and are unlikely to obtain such lands. Those facts are sufficient to show that the Act violates the Equal Protection Clause and conflicts with IGRA. Where there is no ambiguity with respect to state law that requires clarification, Pullman abstention is unwarranted. 15 III. KG MEETS THE REMAINING PRELIMINARY INJUNCTION CRITERIA Massachusetts does not so much as acknowledge the many cases cited by KG finding irreparable injury where the plaintiff is forced to compete on an unfair playing field, because of a challenged set-aside program. See KG Br Those cases hold that a denial of the opportunity to compete for a government contract or benefit is, by itself, sufficient to establish irreparable injury. Id. The fact that KG will be denied this opportunity after having invested millions of dollars and years of investment in preparing its redevelopment proposal further reinforces both the gravity and irreparability of KG s injury. See KG Br Finally, the overarching public interest lies is ensuring that valuable government benefits are awarded on the merits through an open and truly competitive process. 17 By making the application process in the other two regions fiercely competitive, Massachusetts itself has recognized that awarding gaming licenses on the merits through a fair and open process is in the public interest. Casino gaming will have a tremendous influence on the economy of Massachusetts in coming years implicating job growth, tax collection, local redevelopment, and environmental sustainability issues and the public has a powerful interest in ensuring that the operators of those casinos are chosen based on the merits of their proposals rather than the race of their owners. 15 Batterman v. Leahy, 544 F.3d 370, 374 (1st Cir. 2008). 16 See Ass n for Fairness in Business v. New Jersey, 82 F. Supp. 2d 353, 363 (D.N.J. 2000); O Donnell Construction v. District of Columbia, 963 F.2d 420, 428 (D.C. Cir. 1992); Cortez III Service Corp. v. NASA, 950 F. Supp. 357, 363 & n.5 (D.D.C. 1996); CRAssociates v. United States, 95 Fed. Cl. 357, 390 (Ct. Fed. Cl. 2010). 17 See KG Br ; CRAssociates, 95 Fed. Cl. at

15 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 15 of 16 CONCLUSION KG s motion for a preliminary injunction should be granted. Respectfully submitted, January 10, 2012 /s/ Kevin M. Considine, BBO # Alexander Furey, BBO # CONSIDINE & FUREY, LLP One Beacon Street, 23rd Floor Boston, Massachusetts (617) Paul D. Clement (pro hac vice) Jeffrey M. Harris (pro hac vice) Brian J. Field BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C (202) Counsel for KG Urban Enterprises, LLC 11

16 Case 1:11-cv NMG Document 18 Filed 01/10/12 Page 16 of 16 CERTIFICATE OF SERVICE I, Alexander Furey, hereby certify that on January 10, 2012, Plaintiff KG Urban Enterprises, LLC s Reply In Support of Plaintiff s Motion For a Preliminary Injunction was filed through the ECF System and will be sent electronically to registered participants as identified on the Notice of Electronic Filing and paper copies will be sent by mail to those indicated as nonregistered participants. /s/ Alexander Furey, BBO #634157