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Mass. gaming panel may lift casino license freeze

A majority of the state gambling commission appeared ready Thursday to lift the freeze on commercial casino development in Southeastern Massachusetts, but ultimately decided to put off a vote that could radically change the development of the state’s fledgling gambling industry.

The five-member commission delayed its decision two weeks to allow for more public comment, a minor reprieve for the Mashpee Wampanoag, which is pursuing a tribal casino in Taunton and desperately wants to keep a commercial competitor out of the region.

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But commercial developers eager to gain access to the southeast could take heart from the gambling panel’s long debate, in which commissioners James McHugh and Enrique Zuniga and chairman Stephen Crosby appeared ready to lift the freeze and entertain commercial casino applications in the region.

“There is a sense it is decision time,” said Crosby, pushing back against calls for another delay.

In the end, however, Crosby wanted to avoid a split vote on one of the biggest decisions the commission has faced since it was formed in early 2012 to guide the development of the casino industry in Massachusetts. He yielded to calls from commissioner Gayle Cameron for more public comment.

The five commissioners have been torn for months over what to do in the southeast.

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The 2011 state casino law barred commercial casino developers from the southeast to give the Mashpee time to make progress on a tribal gambling business, which must be approved under a federal process mostly out of state control. Though the tribe claims it is making tremendous progress, skeptics say the Mashpee are years away from critical federal approvals, and may never overcome legal obstacles to having their land placed into federal trust to make it eligible to host tribal gambling. Some lawmakers in the region have urged the commission to lift the freeze and license a commercial casino in the region, to keep the southeast from falling behind the other two regions where casinos can be developed.

The five commissioners have been torn for months over what to do.

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Waiting could cost the state money in lost gambling taxes and fees, and deny the region thousands of construction and casino jobs.

However, if the ban is lifted and the tribe ultimately overcomes its legal hurdles, it could eventually open a competing casino in the southeast that would not pay state taxes, and could glut the market.

Crosby read aloud a Thomas Jefferson quote about choosing between two risky options: “What is good in this case cannot be effected; we have, therefore, only to find out what will be least bad.”

He said he has spoken with legislators and sees “little appetite” for more delay, and suggested the least bad option is to pursue commercial bids and hold a competition, as the commission is doing in the Greater Boston and in Western Massachusetts. Under this option, the southeast proposals would not only be evaluated against each other, but they would also have to prove they would be viable if the tribe were to someday open a casino in the region. The commission would be free not to issue the southeast commercial license, as it is in any region.

Howard M. Cooper, a lawyer for the tribe, said the commission debate, which obviously leaned toward lifting the freeze, was “highly disappointing.”

In what seems like a prelude to a lawsuit, the Mashpee maintain that the commission lacks the legal authority to open the southeast to commercial bidders, because of language in state law and in the agreement the tribe signed with Governor Deval Patrick, which spells out how a Taunton tribal casino would operate and what percentage of revenue would go to the state. Cooper insists that a clause in the agreement prohibits the commission from opening the southeast to commercial companies, unless the tribe is unable to get its land into federal trust.

“The [commission’s] failure to appreciate the government-to-government agreement between the Mashpee Wampanoag and the Commonwealth of Massachusetts is somewhat astonishing,” said Cooper.

The commission is confident it has the power to solicit private bids from commercial companies at its discretion.

If the commission allows commercial development, the dispute probably will be decided by a court.

Mark Arsenault can be reached at marsenault@globe.com.

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