On Thursday a federal judge denied the Tohono O’Odham Nation’s request to compel state officials to issue approvals for a Class III gaming facility in the Phoenix suburb of Glendale. The tribe plans to open their $200 million Desert Diamond West Valley Casino Resort in December anyway and rely on a Class II license allowing bingo and slot-like bingo machines anyway. A state certificate is not needed for Class II gaming, the state conceded Thursday.

Ironically, the fact that the tribe can open some form of casino without the state’s blessing played a part in the judges decision not to grant a preliminary injunction. U.S. District Judge David Campbell ruled that the tribe would not suffer “irreparable harm” without a full gaming license.

“The Nation asserts that the state’s actions will cost it substantial sums of money, and that the money constitutes irreparable harm because it cannot be recovered from the state due to sovereign immunity,” Campbell wrote. “The court finds, however, that the Nation has not shown that [the] actions will cost it substantial sums.”

The tribe’s lawsuit against Department of Gaming Director Daniel Bergin was allowed to move forward while the judge dismissed defendants, Governor Doug Ducey and Attorney General Mark Brnovich. The two had argued earlier this month that the decision to grant approval lies solely with Bergin. Ducey and Brnovich had earlier urged Bergin to deny the tribe a license and in April he told the tribe they would not be getting his approval.

The judge, who so far has ruled in the tribe’s favor more often than the state’s, said he would need more information and further hearings to determine if the state is violating the law by not issuing full certification. A full license would allow the casino to offer true slots and other casino games like roulette and craps.

Bergin has accused the tribe of fraud for not revealing in 2002 that they planned to use the land the casino is being built on for a gaming facility. He maintains that as Gaming Director he has legal authority to deny “bad actors” a casino license, and that his opinion is all that is needed to make such a judgement and subsequent action.

Bergin is not the only opponent of the gaming facility. Other tribes in the area that fear they will lose money to the operation have lobbied hard to block the competition. U.S. Senator John McCain has even passed a bill through committee in Washington D.C., without actually naming the tribe, to halt the operation.

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