The Department of the Interior’s appeal of a 2021 gaming compact between the state of Florida and the Seminole Tribe continued with a planned paperwork procedure on Monday. The government wants to do it itself.
In an answering brief filed with the US District Court of Appeals, DC Circuit, government lawyers essentially told the Seminole Tribe’s legal team and court, “we got this,” asserting that it alone could handle the slow-moving process.
Government lawyers put forth that the Seminole Tribe, although it has attempted to become an intervening party and filed an amicus brief supporting the DOI appeal, is not an “indispensable party” in the litigation. The Seminoles offered legal sports betting in Florida last November through their Hard Rock Digital app, but a lawsuit brought by a group of pari-mutuels led to the shutdown.
Feds Seek to Go it Alone in District Appeals Court
In its answering brief, the government used two routes to cleave the Seminoles from the appeal process. First, lawyers cited the Administrative Procedure Act, which asserts that the government is generally the only indispensable party in such cases. Secondly, it invoked Rule 19a of the Federal Rules of Civil Procedure, claiming that the appeals process can “accord complete relief” in the mutual interests of the Seminole Tribe and government without tribal legal teams involved.
Said government lawyers’ brief:
“While the federal government and the Tribe both seek reversal, the Tribe’s preferred path is in tension with circuit precedent and, if adopted, could functionally nullify the APA’s waiver of federal sovereign immunity in the wide swath of cases where federal agency action benefits a tribe or state that cannot be joined to litigation without consent. Thus, while this Court should reverse for the reasons stated in the government’s appeal, the district court’s denial of the Tribe’s motion should not be disturbed.”
The filing of further paperwork is scheduled through November, meaning any decision could carry well into 2023. Legal and gambling observers inside and out of one of the top remaining parcels of sports betting real estate in the United States are beginning to agree that sports betting in Florida is unlikely before 2025.
The Department of the Interior allowed the compact to pass into law by letting a 45-day assessment period lapse. DOI eventually issued a set of opinions on the compact, looking unfavorably on the marketing agreements the Seminoles were required to offer the state’s pari-mutuel outlets, but saying that Native American gambling operations shouldn’t be constrained by an Indian Gaming Regulatory Act that pre-dated the opportunities provided by mobile and Internet technology.
The case has become a national curiosity because of its potential to influence the future of tribal gaming.
Government Filing Another Step in Lengthy Process
Unless the Appeals Court reverses course on a compact Judge Dabney L Friedrich invalidated as a “legal fiction,” the state and Gov. Ron DeSantis would be sent back to the proverbial drawing board. The Seminole Tribe would seemingly be inspired by recouping the right to offer craps and roulette — which were also a part of the 2021 compact — and retail sports betting. The state would seemingly be motivated by the $2.5 billion in revenue share payments through the first five years of the deal that the invalidation has cost Florida.
Legalizing sports betting off tribal lands, and most importantly via mobile, would become an issue for state legislators again and certainly cue a massive lobbying and advertising effort from sportsbook operators hoping to launch in a state of nearly 22 million.
The disparate makeup of the Florida electorate and marshaled anti-gambling groups and laws — and DeSantis’ expected run for the Republican nomination for president — would not suggest a fleet or friction-free process.