Judge declines motion to dismiss racino lawsuit

ALBUQUERQUE — Hearing objections from other applicants, a judge on Thursday declined to rule on a motion to dismiss the lawsuit that last year halted the racino award selection process.

If new objections from other applicants are taken to heart, the process might stretch much longer yet.

The New Mexico Racing Commission, previously poised to announce in December which of five applicants would receive the state’s sixth racing license, delayed that decision following a petition for injunctive relief filed Nov. 28 in the 2nd Judicial District. That suit, filed by Hidalgo Downs, LLC and other individually named plaintiffs attendant to Lordsburg’s racino bid, stated concerns with alleged flaws in a feasibility study completed earlier that month. Attorneys representing NMRC said they would postpone making a racino decision until that suit was resolved, out of concern for the award being “tainted” by pending litigation.

On Wednesday, attorneys for both Hidalgo Downs and the state filed a “stipulated motion for dismissal” on the grounds that “the parties have reached a mutually acceptable resolution to all of the claims presented in this case.”

That agreement specified that NMRC “will not rely on the recommendations” made in the Nov. 15 feasibility study by Convergence Strategy Group, the study at issue in Hidalgo Downs’ suit. However, commissioners’ decision “may be based upon all information known to and made available to the NMRC, including information, excluding the recommendations, contained within the study.”

According to the state attorney general’s director of communications, that agreement didn’t sit right with other racino applicants. In a motion hearing Thursday morning, Judge Carl Butkus heard those concerns and gave them 30 days to file a reply to the motion to dismiss.

“Judge Butkus did not sign-off on the Stipulated Motion to Dismiss because the other applicants objected, alleging that ... they weren’t involved in crafting the settlement and that it is flawed because it didn’t mention the second, feasibility study,” AG spokesman David Carl wrote in an email to The News.

Carl said the other applicants also “believe that (NMRC) Chairman (Ray) Willis has a conflict of interest” and “did not have the authority to sign the agreement.”

Of four other applicant groups vying for the license, three propose projects in Clovis and one for Tucumcari.

Carl did not specify what other applicant groups objected Thursday to the motion, but court records show representatives for each of the four other groups filed motions to intervene in the suit “because their rights are at stake.”

Warren Frost, attorney for Tucumcari’s racino bid and a longtime advocate for that project, voiced his objections in Thursday’s hearing and told The News on Friday that his concerns with the selection process had only grown in recent months.

“We don’t want to sit back and allow Hidalgo (Downs) and the attorney general’s office to decide how this is going to proceed without our input,” he said. “Hidalgo’s concern was the study that was done, and although we agree that that was a problem, there’s other issues. Basically, it’s our position at this point that there’s so much conflict of interest on a majority of the racing commission that the racing commission as they currently exist cannot objectively make the decision. It’s our position the governor needs to appoint a new commission. There needs to be a new study done.”

Attorneys representing the other racino applications did not respond to messages Thursday and Friday seeking comment. Frost said he intended to articulate his concerns in a response to the recent court motion in his own filing within the month.

Appointing a new commission would surely prolong the award process, but it was unclear by how long.

“You know, there’s going to be four unhappy applicants, but, you know, you can’t win ’em all,” Frost said. “But if you know that you’re being treated fairly and the process is fair then you can live with it.”

The suit remains pending. NMRC meets next on April 18.