Concerned Citizens to Protect the Isles and Point, Inc., et al. v. Mississippi Gaming Commission, et al., 735 So.2d 368 (Miss. 1999).Brad Rath, 3L

In April, the Supreme Court of Mississippi affirmed lower court decisions to allow the construction of a casino complex on the north shore of the Bay of St. Louis in Harrison County. This site, the second attempt by the developer, was challenged by several citizen groups 1 that claimed the agency decisions leading to the permitted casino were arbitrary and capricious and that the permits were granted against state law. The Court deferred to the decisions of the state agencies responsible for siting and permitting in affirming the casino site and permits.

Background

During the early 90's, the Pine Hills Development Partnership (Pine Hills) proposed a casino on an artificial watercourse, which was to be created by diverting waters from the Bay of St. Louis northward through two man-made channels, running a quarter of a mile inland to an artificial cove carved out of dry land in Harrison County. The Mississippi Gaming Commission (MGC) permitted the site but it was successfully challenged by citizen groups. The Mississippi Supreme Court determined that an appropriate site cannot be located on an artificial inlet dredged from dry ground.2

In 1996, Pine Hills tried again and received a permit from both the MGC and the Commission on Marine Resources (CMR) to place a resort and casino vessel a half mile east of the Hancock-Harrison county line on the north shore of the Bay of St. Louis. Citizen groups again objected to the location of the casino and challenged the decisions on the basis that the MGC and the CMR acted arbitrarily. Nonetheless, the site and the permits were approved by Harrison County Courts.3
 

Challenges to the MGC

On appeal, the citizen groups argued that the MGC improperly authorized that up to 50% of the vessel may be located on land above mean high tide. Relying on the court's first Pine Hills decision, the groups argued that the earlier proceeding not only prohibited dredging to create an appropriate site but also prohibited the location of 50% of a gaming vessel on land. The court found that no statutes or case law could be construed as requiring this 50% figure.

Relying on the Mississippi Code's definition of "cruise vessel" as a vessel with a minimum draft of six feet and "navigable waters" as waters in their natural state, the citizen groups then argued that the vessel could not be located in natural waters less than six feet deep. Pine Hills responded that no provision of law required water capable of supporting a casino vessel to exceed a depth of six feet before site improvement could be conducted. The Court agreed and held that because the site was located in coastal waters, as opposed to the navigable waters of the Mississippi River, dredging would be allowed to accommodate a vessel with a six-foot draft.
 

Challenges to the CMR

The citizen groups also challenged the CMR's change of use designation for the proposed site. The proposed site was originally designated as a "General Use" or "G" designation under the Mississippi Coastal Program which allows only minor changes such as piers, bulkheads, and launching ramps. At Pine Hills' request, the CMR changed the use designation to a "Water Dependent Industry Use" or "I" designation which authorizes more development such as dredging and filling to advance the permitted uses.

The citizen groups likened this change to a land use zoning change and claimed that the only way to change the use designation was to prove that (1) there was a mistake in the original zoning plan or (2) that the character of the area had changed so significantly, that it justified a change.4 The court refused to apply the zoning rule to changes in use designations under the Coastal Program because while municipal zones are intended to be permanent, the Coastal Program's wetlands use plan is flexible in order to serve the higher public interest of reasonable expansion of water dependent industries.

The court concluded by finding that the CMR required Pine Hills to satisfy conditions aimed at protecting the environment and deferring to the agency's determination that these conditions afforded adequate protection to the coastal wetlands in that area.
 

Conclusion

With this decision, the Mississippi Supreme Court has placed its stamp of approval on the location of Pine Hills' casino and resort in the Bay of St. Louis in Harrison County. Moreover, the Court clearly articulated its deference to permit determinations by state agencies such as the Gaming Commission and Commission on Marine Resources.
 

Endnotes

1. The citizen groups were the Concerned Citizens to Protect the Isles and Point, Bay St. Louis Community Association, Preserve Diamondhead Quality, and Gulf Islands Conservancy.

2. Mississippi Casino Operators Association v. Mississippi Gaming Commission, 654 So. 2d 892 (Miss. 1995).

3. The Harrison County Chancery Court affirmed the CMR permits and the Circuit Court affirmed the MGC permits. The decisions of the Chancery Court and the Circuit Court were consolidated on appeal.

4. This is known as the "change or mistake" rule. 735 So.2d at 377.

University of Mississippi