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New York governors lack authority to bind the state into tribal gaming compacts absent legislative approval, an appellate panel in Albany held Thursday. The 5-0 decision by the New York Supreme Court’s Appellate Division, 3rd Department, affirms the trial court and effectively thwarts the expansion of casino gambling in New York state. Justice Thomas E. Mercure, observing that courts in several states have ruled similarly, said that absent constitutional authority reserving residual powers to the executive, a governor simply cannot negotiate and enforce gaming compacts without legislative approval. The decision will have no effect on the only two Las Vegas-style casinos now in operation in New York: Turning Stone in Central New York and Akwesasne on the St. Regis Reservation near the Canadian border. However, it does seriously jeopardize plans to expand gambling into the Catskills and Western New York. Saratoga County Chamber of Commerce Inc. v. Pataki, 89574, is rooted in a compact former Gov. Mario M. Cuomo negotiated with the Mohawk Indians in 1993, and an extension of that agreement signed by Gov. George Pataki in 1999. The basic question before the court was whether the federal Indian Gaming Regulatory Act (IGRA), in the context of the State Constitution, affords the executive the power to enter into gaming compacts without legislative approval. “We hold that because the basic policy decisions underlying the Governor’s actions have not been made by the State Legislature, the Governor did not have the authority to bind the state by executing the compact or amendment,” Justice Mercure wrote. Thursday’s decision affirmed a ruling last year by New York Supreme Court Justice Joseph C. Teresi of Albany. On appeal, the governor argued that the state constitution and various statutes would permit the type of gambling at issue, even though the state has a long-standing policy against casino gaming. He then claimed that if the state failed to enter into good-faith negotiations with the tribes, ultimately culminating in a tribal-state compact, IGRA would have empowered the U.S. secretary of the interior to impose a compact. “First and most obvious,” Mercure wrote, “is the fact that the Governor and Congress are not coordinate branches of government, thereby rendering defendant’s separation of powers analysis inapt.” Secondly, the court said, even if the state had no choice but to enter into a compact with the tribe, the governor’s action “deprived the Legislature of any input concerning a number of significant elements, including the location of the casino, the gaming that could be carried on there, the extent of state involvement in providing regulation and a regulatory infrastructure and the fees to be exacted for that regulation.” Representing the Saratoga County Chamber of Commerce, various anti-gambling organizations and a group of state legislators was Cornelius D. Murray of O’Connell & Aronowitz in Albany. Assistant Attorney General Andrew D. Bing argued for the state. Joining the opinion were Justices Karen K. Peters, Edward O. Spain, Anthony J. Carpinello and John A. Lahtinen.

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