The Department of the Interior filed its opening brief two weeks ago in the Florida sports betting appeal.
Gov. Ron DeSantis and the Seminole Tribe agreed to the deal in April 2021. Subsequently, it was passed by the state legislature and approved by the DOI. It legalized Florida sports betting and expanded gaming options at casinos and pari-mutuels.
But it didn’t come without scrutiny. West Flagler Associates, the ownership group of two Florida pari-mutuels, filed a lawsuit over the sports betting provisions.
Last November, Judge Dabney Friedrich said the ‘hub-and-spoke’ model violated the Indian Gaming Regulatory Act. As a result, she invalidated the entire compact and shuttered the shortlived Florida sports betting industry.
Feds look to rebound from poor performance in District Court
Anyone who followed the proceedings in District Court likely came away with the same that the DOI failed to present good arguments in favor of the compact.
In fact, on several occasions, Judge Friedrich appeared frustrated with the government. She the government to address specific issues and its legal team failed to deliver those arguments.
The move to the D.C. Court of Appeals gives the government a chance at redemption. If they can convince the court that the 2021 compact comports with federal law, the poor performance in the previous case is moot.
However, the federal government’s opening brief is surprisingly underwhelming. It seems to leave several holes for West Flagler to take shots at in its responding brief.
DOI chooses not to question West Flagler’s standing
The federal appellants, representing Secretary Deb Haaland and the Department of the Interior, raise two substantive arguments in their appeal.
In my opinion, the federal government took an interesting approach in their case. Not only in the arguments they chose to make, but in the arguments, they chose not to make.
In Friedrich’s November opinion, she found West Flagler had the standing to bring their claim to court. A significant basis for this finding was a survey that West Flagler conducted shortly after the Seminole Tribe launched its online sports betting product.
The launch of the Hard Rock Sportsbook may have been a strategic blunder. Especially with a pending ruling on the operation’s legality.
But the lower court’s finding of standing based largely on a survey created a plausible opportunity to further question the concreteness of the plaintiff’s alleged financial harm. The DOI chose not to take that route in the brief.
One less path forward
By conceding that West Flagler has standing by not raising the issue in their appeal, the federal government removed one potential avenue of attack.
Appellate litigation requires counsel to make conscious choices about their best path forward. This is indeed a judgment call, but the DOI filed a motion to dismiss the case at the District Court level based on problematic nature of the plaintiff’s standing.
Interestingly, even at the District Court, the federal government did not attempt to rebut one of West Flagler’s main arguments.
In the suit, the plaintiffs argued that the model would give an effective monopoly to the tribe. Thus, it would hurt their bottom line. The DOI could’ve argued against that by showing sports betting is not actually profitable for most companies.
The decision not to attack the plaintiff’s standing can be deemed a fair judgment call to focus on other arguments. But the federal government’s primary argument left me confused as a reader.
The DOI’s main argument
The federal government’s main argument is centered on their claim that the District Court erred claiming the compact was consistent with the IGRA.
Instead, they argue that compacts are not limited to just gaming on “Indian land.” They can also include other content as well. The Ninth Circuit just detailed the contours of the subjects covered within IGRA of which seven topics can be covered.
Indeed, gaming regulatory standards are within the enumerated provisions.
However, the government’s Section B of its first argument is where there is language for West Flagler to rebut.
The government moves the argument from whether the IGRA permits the scheme that Florida proposes to claiming that statewide mobile betting is compatible with it. They claim it has a substantial connection to the allowance of sports betting on tribal lands. This appears to be a massive expansion on conventional thought surrounding the law’s scope.
The government states that a finding that IGRA does not permit the negotiation of online gaming for users off tribal lands would serve as a functional bar.
However, this is the operating assumption in most of the country. Various states and tribes elect to do commercial deals in place of a compact for mobile gaming. This stems from the widely held belief that the IGRA does not permit mobile operators. At least outside of the Mississippi model where patrons on tribal land can wager on their phones.
Questioning the term “authorized”
The brief then delves into an unusual argument where the Feds argue that the District Court erred in concluding the compact “authorized” gaming that takes place off tribal lands. However, this appears to be contradicted by the very language of the compact itself.
Under Section IV of the compact, “Authorization of Covered Games,” the compact authorized the sports betting model in question. This is the basis for the off-tribal land sports betting model in Florida. If it is not authorized by the compact, where is it authorized?
The government then argues that part of the compact’s text is subject to an alternate interpretation. They claim that where it states wagers from anywhere on the state are deemed on tribal property is being misinterpreted.
The lower court said that it was “deemed” by the IGRA. But the government argues that this provision could be read to say that bets occur on tribal land under either tribal or state law.
The issue here is that it appears clear that the interpretation is under IGRA. Otherwise, there would be an effort by the legislature to accomplish this under state law. In fact, there are questions over if it’s possible to legalize sports betting without a constitutional amendment.
In my opinion, the federal government’s brief really missed the mark.
After several questionable issues at the district court level, most legal minds expected a much more cohesive argument moving forward.
However, this brief is more of the same. The feds continued forward with confusing arguments from their district court case.
In some ways, this brief feels like an attempt to find something that sticks. But instead of really taking a blanket approach, the government advanced arguments that are difficult to follow.
The Seminole Tribe filed a brief arguing the federal government did not adequately represent its interests in the District Court. As a result, the tribe believes they have a right to intervene.
While that argument is problematic, and an article for another day, the federal government focused extensively on its own interests. It seems increasingly possible that this may be divergent from the interests of the Seminole Tribe.