The New Mexico Supreme Court this week declined to consider an appeal from a developer who planned to build a Raton racino, but lost his state racing license and alleges the state Racing Commission acted improperly in declaring the license expired without acting on a request for revised race dates for what was supposed to be the inaugural season at La Mesa Racetrack and Casino in 2010.
The rejection of the writ of certiorari filed last month with the state’s high court — the writ asks the court to hear the case — is likely the end of the appeal process for Toronto-area developer Michael Moldenhauer, although he has 15 days from when the court’s decision was filed this past Monday to request that the court reconsider.
The Racing Commission at its meeting late next month is expected to discuss, and possibly take action, regarding the process for accepting applications for the license that was the subject of Moldenhauer’s appeals. A number of investment groups representing various locations throughout the state — including a new group eyeing Raton — have expressed interest in the license.
Moldenhauer’s quest to get the license restored to him began shortly after the Racing Commission in early 2011 agreed with a hearing officer that the license had expired at the end of 2010 — the year for which race dates were approved. The commission took no formal action because it decided none was necessary since the license had expired on its own.
Moldenhauer appealed to District Court in Raton and a judge sent the case to the New Mexico Court of Appeals, which was already considering Moldenhauer’s appeal of the revocation of his state gaming license that is also needed for a racino. The Court of Appeals upheld the New Mexico Gaming Control Board’s license-revocation decision and Moldenahuer did not appeal that court ruling, deciding instead to focus on the case involving the racing license, which must be in place before someone can seek a gaming license.
The Court of Appeals in March found that the Racing Commission should have issued a written order regarding the racing license’s expiration, but the court also found that without a written order, the court had nothing on which to hear an appeal. It also ruled that considering Moldenhauer’s claim against the commission for lack of action on his request for amended race dates in 2010 was “moot” and the court could “provide no actual remedy.”
In requesting the Supreme Court hear the case, Moldenhauer’s attorney argued that relief was possible if the court would “turn back the clock on its licenses and order the Commission to follow its own regulations and statues” that call for it to issue written decisions on matters such as the status of a license, as well as to act on requests such as the one for revised race dates. The written arguments submitted with the writ said, “So long as the Commission and Gaming Control Board treated La Mesa fairly and reasonably” from now forward, La Mesa “could move forward with its plans to build and operate a racetrack in Raton.”
The racing license that was awarded to Moldenhauer in late summer of 2008 and formally issued to him in early 2009 is the state’s sixth and final racing license currently available under an agreement the state has with Indian tribes who operate casinos on Indian lands in the state.
Racing Commission Executive Director Vince Mares said this week the commission did not address the issue of the license and the Supreme Court’s decision at the commission’s regular meeting Tuesday because the commission had not yet received documentation regarding the court decision. That was expected to be received soon and Mares said he anticipates the commission will discuss the matter of the final license at its meeting June 27 in Albuquerque.
The commission had been waiting for the court to decide on Moldenhauer’s writ before proceeding with opening an application period for the license. A court injunction had previously been in place prohibiting the commission from accepting and considering applications for the license while Moldenhauer’s appeal was being considered by the Court of Appeals.
A Range request for comment about the Supreme Court’s decision and whether La Mesa would ask the court to reconsider was received by a La Mesa spokesman Wednesday who said he would check with Moldenhauer for a response. The spokesman had not offered any response by the time The Range went to press Thursday afternoon.
The only development at the site of the planned $50 million racino — just south of Hereford Avenue and east of Interstate 25 — was a few years ago in the form of some initial ground and utility work and the erection of a large tent that was to house a temporary casino.
A separate group of investors from Texas and New Mexico has expressed interest in applying for the racing license in order to develop a Raton racino. Other groups have said they would seek the license, as well. Applications are expected from groups who want the license for sites in Tucumcari and Hobbs, although the Hobbs group has said it would use the license simply to expand the number of slot machines it has at its existing racino. Interest in the license has also been expressed by two other parties, one of whom envisions a racino in Lordsburg while the other considers one near Clovis.