The lawsuit, filed in U.S. District Court, seeks to have the action of the Secretary of the Interior and other federal officials that approved the incorporation of the site into the territory of the Seneca Nation of Indians declared null and void and enjoin them from proceeding with any activities on the site until they have complied with the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Indian Regulatory Gaming Act (IGRA). The plaintiffs are challenging the action of the defendants which effectively allows the construction of a gambling casino on lands of historic significance without appropriate environmental review or historic consultation and in violation of NEPA, NHPA and IGRA.

The National Historic Preservation Act and the National Environmental Policy Act are the bedrock laws that protect historic resources across the nation. As such, The Campaign is seeking an order directing the Secretary of the Interior and other federal officials to perform immediately their non-discretionary duties under NEPA and NHPA, as well as IGRA.

The Campaign efforts in the lawsuit are focused on violations to the National Environmental Policy Act and the National Historic Preservation Act which are having a negative effect on the historic and cultural resources. The decision of the Secretary of the Interior approving the application of the Seneca Nation to include the Elk Market site in its territory and to permit the development of a gambling casino was a major federal action significantly affecting the quality of the human environment, and therefore required the preparation of an Environmental Impact Statement.

The National Environmental Policy Act requires that all agencies of the Federal government include in every recommendation or report on major Federal actions a detailed statement by the responsible official, including a statement as to the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, and alternatives to the proposed action. In particular, NEPA requires that the Environmental Impact Statement discuss the impact of the alternatives on cultural or historic resources.

The Secretary of the Interior and other defendants have failed to comply with the National Environmental Policy Act. The defendants issued no assessment of the potential environmental effects of the demolition of the H-O Oats grain elevator and mill, nor of the construction and operation of a gambling complex on the Elk Market site. No comprehensive historic, archeological, or architectural survey of the area, the site of Buffalo’s first wholesale food market and its associated streets and buildings, has been undertaken. No draft environmental impact statement was prepared for the project, and the public and governmental agencies were not afforded the opportunity to comment on the project’s environmental effects, nor were alternative sites considered as required by NEPA.

In addition to the violation of NEPA, The Campaign also is concerned with violations to the National Historic Preservation Act. Section 106 of the Act requires the head of any federal agency having direct or indirect jurisdiction or licensing authority over a proposed Federal or federally assisted undertaking, prior to the approval of the expenditure of any Federal funds thereon, or the issuance of any federal license therefore, to take into account the effect of the undertaking on any district, site, building, structure or object that is included or eligible for inclusion on the National Register. The Secretary of the Interior and other federal officials have failed and refused to comply with the requirements.
The NHPA specifically includes Indian tribes within the jurisdiction of the Act.

16 U.S. C. 470-1 “It shall be the policy of the Federal Government, in cooperation with other nations and in partnership with the States, local governments, Indian tribes, and private organizations and individuals to—
use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;
provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments; ……..
(6) assist State and local governments, Indian tribes and Native Hawaiian organizations and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities.”
Pursuant to 16 U.S.C. §470(a)(d) the Secretary is authorized to “establish a program and promulgate regulations to assist Indian tribes in preserving their particular historic properties.”

The Secretary of the Interior and other federal officials violated the NHPA by failing to consult with the Advisory Council for Historic Preservation as required prior to permitting the Buffalo site to be incorporated into the Territory of the Seneca Nation:
“The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under part B of this subchapter a reasonable opportunity to comment with regard to such undertaking.”

The nine-acre site proposed for the Seneca gambling complex is in the Old First Ward of Buffalo, where the City of Buffalo was founded at the confluence of Lake Erie, the Niagara River, and the Buffalo River. The site is located in a part of a significant cultural landscape which includes Buffalo's historic harbor and waterfront. It is located in proximity to the historic western terminus of the Erie Canal. The U.S. Department of Transportation and others have, in the past seven years, committed over $40,000.000.00 to the reconstruction and development of a Buffalo’s fabled Canal District here.. Reconstruction of the Commercial Slip and historic streets and wharves is underway.

The Erie Canal, completed in 1825, was a technological innovation which facilitated commercial development of Buffalo, the Great Lakes and the Great Northwest and vaulted the city of New York to preeminence on the continent. The Canal transformed the economy of the nation and set development patterns which railroads and highways merely intensified. It was the key engine to the development of America in the mid nineteenth century.

Beginning in the 1850’s, rail transportation began to supplement and eventually overtake waterborne transportation. The Buffalo Harbor reflected these changes as Buffalo became a major railroad center, as well as the most important inland shipping port. The Buffalo waterfront became the nexus of rail and water transportation, greatly speeding the delivery of fresh foods and meats, among other things. Buffalo’s population was skyrocketing, as was that of its market area. It became necessary to create a wholesale food market in the area. The site chosen straddled Elk Street (now South Park Avenue), where the tracks of the New York Central and Delaware, Lackawanna & Western (DL&W) met waterborne transportation. The DL&W, one of a host of keenly competitive railroads operating in Buffalo in the 19th and 20th centuries, gained control of the north shore of the Buffalo River from the Elk Market to Erie Basin in 1873. In 1917, it opened its second Buffalo terminal, stretching from the foot of Main Street to the Elk market area. The magnificent and technologically innovative trainsheds still exist.

The DL&W Terminal, the Canal District, the Cobblestone District, and the old Elk market area are precious local resources that are destined to be destinations for tourists from around the nation and world as well as local residents. This cultural landscape extends to encompass the grain elevator complexes which are the defining and unifying landmarks of the entire area. The insertion of a large gambling complex in the midst of this historic area will spoil the character and integrity of one of America's most distinctive cultural landscapes.

The proposed gambling site includes the historic H-O OATS grain elevator and mill buildings. The H-O mill opened in 1893; the buildings on the site as of 12/1/05 date from 1912, 1928, and 1931. The grain elevators and mills of Buffalo are considered to be the most distinctive type of architecture in the city. Buffalo's collection of grain elevators is the largest in the United States. In 2002, the New York State Department of Parks, Recreation and Historic Preservation declared the H-O OATS complex, and other Buffalo area grain complexes, to be eligible for the National Register of Historic Places.

The proposed gambling site is adjacent to the historic Cobblestone Historic District. The Cobblestone District consists of streets and buildings dating from the Civil War era and has been designated a historic district by the City of Buffalo. Part of the District is currently being renovated for residential use. The development of a gambling complex will have an adverse impact upon the redevelopment of the Cobblestone District.

A gambling complex at the Buffalo site will have grave adverse effects upon the human environment in the area. It will attract increased automobile traffic and attendant noise to a neighborhood that has recently been redeveloped for residential living. In addition, the casino will operate to the early hours of the morning, making the neighborhood unsuitable for family residential living. Gambling casinos have also been associated with rises in prostitution, violent crime, and gambling addiction.