West Flagler Associates on Monday filed a petition for a rehearing of its defeat in the Florida sports betting case against the Department of the Interior in the US Court of Appeals, DC Circuit.
On Wednesday, the court ordered the DOI to provide a response within 15 days, and the department complied, blasting West Flagler’s reasoning.
West Flagler asked for an en banc hearing, which entails a procedure before a majority of the active DC Circuit judges, which could be as many as 15. These types of appeals are rarely granted. The court had not made a decision on the appeal before Labor Day Weekend.
According to a clerk’s order on June 30, the final result of an en banc appeal would not be minted “until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc.”
The legal calendar had led observers to conclude that Hard Rock could legally re-launch on Aug. 22 before the en banc request was made. With the Wednesday ruling, that’s now impossible even with a speedy response from the DOI.
Background on Florida Sports Betting Legal Latest
The ruling continues to portend a recalibration of how Native American gaming is conducted in the United States.
On June 30, a three-person panel of appeals judges ruled in favor of the Department of the Interior — overruling a lower court decision — and in essence, reinstating the Seminole Tribe of Florida’s new 30-year gambling compact through its Hard Rock Bets app. West Flagler and the owners of the Bonita Springs Poker Room — both parties are former Florida parimutuel operators — had successfully argued in federal court that the compact went beyond the parameters of the Indian Gaming Regulatory Act by allowing the Seminoles to offer state-wide mobile sports betting off tribal lands.
But in overturning that ruling, the panel said that IGRA required broader interpretation.
West Flagler’s legal team hammered at what it feels are inconsistencies in the judgments.
The Opinion departs from this prior case law by holding that a tribe and state may use the IGRA process to obtain Secretarial approval of a compact purportedly authorizing a tribe to conduct gaming statewide, i.e., predominantly off of Indian lands. It says the Secretary [of the Department of the Interior, in the case Debra Haaland] may provide such approval even where—as here—the law of the state prohibits the type of gambling in question if conducted off of Indian lands.”
The West Flagler assertion continues, “The Opinion makes clear that the Secretary’s approval of the 2021 IGRA compact between the Seminole Tribe (the ‘Tribe’) and Florida (the ‘Compact’) does not, and cannot, authorize the gambling that occurs off of Indian lands. It says that whether that gambling is legal and authorized is purely a question of state law.
According to the Opinion, all the IGRA approval is doing is allowing the Compact to discuss, or refer to, the gaming that occurs off of Indian lands.”
The Seminoles offered sports betting in Florida from Nov. 1 2021 until Dec. 4 when they complied with the orders of Circuit Court Judge Dabney L. Friedrich, who had invalidated the compact. The Seminoles had also negotiated the right to offer retail sports betting, craps, and roulette in that compact, but never did.
Seminole Tribe of Florida spokesperson Gary Bitner told Catena Media in a statement: “It’s important to note the three Judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous decision in favor of the U.S. Department of the Interior, which approved the Gaming Compact between the Seminole Tribe and the State of Florida.”
Supreme Court Could Still Decide Florida Sports Betting Case
West Flagler still has the option of attempting a blocking action in the Florida legal system or applying to the Supreme Court.
While a small amount of SCOTUS petitions are taken up, it could be worth the effort, as Baird Fogel, co-head of the Global Sports Practice at Eversheds Sutherland, considers the current Court "tribal- and sports-betting friendly."
Seven of the current justices were members of the Supreme Court that struck down the Professional and Amateur Sports Protection Act in 2018, minting the legalization of sports betting as states-rights issue. The Court took up two cases involving Native Americans in the most recent sessions and those types of issues are seen as of keen interest to Justice Neil Gorsuch.
"I have a feeling the Supreme Court might take it up," Fogel told Gaming Today before West Flagler requested the en banc hearing. "They're the ones that gave us this entire industry in 2018. It seems to be kind of pro-business court. I have a feeling that the Supreme Court may grant cert on this and take it up if [West Flagler] were to be so bold. But again, it's a major cost, it's a major risk to do so."
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