[06/07/02]The plan announced six years ago to build a casino, hotel and auto racing complex on the banks of the Big Black River was dealt its death blow Thursday by the Mississippi Supreme Court in a 5-3 ruling that also averts a potential financial crisis for Vicksburg.

The court reinstated a 1996 decision by the Mississippi Gaming Commission that the proposed casino site, on Warren County’s eastern border near Interstate 20 at Bovina, was not suitable for gaming.

In making that decision, the commission said it considered possible economic effects a casino at the site would have on the four casinos existing then and now inside Vicksburg’s corporate limits. The proposed site is about 14 miles closer to Jackson customers.

County landowner E.L. Pennebaker appealed that decision. Developer Horseshoe Gaming Inc. later joined the appeal, which asked Hinds County Circuit Court to review the three-member commission’s 2-1 ruling that the site was not “suitable.”

A year later, in December 1997, Judge L. Breland Hilburn reversed the gaming commission, finding it had been arbitrary and capricious. The subsequent appeal to the Supreme Court was joined by the commission, the City of Vicksburg and three Vicksburg casinos and has languished there for five years.

Pennebaker’s attorney, Bill Spell, said that while the gaming commission tried to make the question one of the site’s suitability, the decision was really “all about competition.”

“This decision wrote a lot of bad law,” Spell said, “and all of it favors existing casinos with powerful financial and political influences.”

The gaming commission’s executive director, Larry Gregory, said he was pleased with the court’s decision.

“This decision finally settles the question of whether the commission has the authority to grant site approval,” he said. “We looked at all the facts and came to the decision that (the Big Black site) was not a suitable site.”

In its appeal, the commission said its decision was based on evidence that showed allowing a casino to be built at Bovina would have negative economic and historic-preservation effects, and that the commission was within its authority to consider those effects.

“It was not the place of the circuit court to sit in the shoes of the Commission and decide whether or not the proposed site is suitable for gaming, nor is it our place,” Justice Kay B. Cobb wrote, joined by Chief Justice Ed Pittman, and justices William L. Waller Jr., Charles D. Easley Jr. and George C. Carlson Jr.

Justice Oliver E. Diaz wrote a dissent, calling the decision economic protectionism and saying the Legislature told the commission to promote competition, not thwart it.

“The commission has turned its back on its own principles, allowing Vicksburg and Vicksburg casinos, fueled by the potential threat of competition, to influence the commission’s decision in denying the gaming site,” Diaz wrote, joined by justices Charles R. McRae and James W. Smith Jr.

Justice James E. Graves Jr., new to the court, did not participate in the decision.

The 1990 state law that allowed casinos limited them to counties along the Gulf Coast and Mississippi River. Sites within those counties had to be on navigable waters, but not necessarily the Mississippi.

Here, for example, the commission approved sites on the Yazoo River at Redwood and on the Big Black on Warren County’s border with Claiborne.

The development planned by Minnesota developer Jim Belisle for the Big Black site was to include a NASCAR-style racetrack and a hotel and cost some $150 million.

The Warren County government’s share of the 3.2-percent tax on casinos locating in unincorporated areas would be 65 percent. Its current share from casinos in the city is 25 percent. The county would also get all of a 0.8 percent state tax and all property taxes on the development.

In the decade prior to 2001 Vicksburg’s budget roughly tripled, helped by revenue from the casino tax, and many recurring costs were added to it. Vicksburg now gets roughly 25 cents of every dollar in its budget from casino taxes. Had the market shifted out of the city toward Jackson, speculation was that the city would find itself in a dire financial condition.