The Seminoles and the federal government seemed to have the same goals for sports betting in the Sunshine State.
The feds filed an answering brief to the D.C. Court of Appeals on Monday. In a somewhat surprising move, they argued that the tribe was not an indispensable party to the case.
In August, the government and the tribe filed opening briefs. The Seminoles filed the brief solely to be included in the appeal. Currently, the Department of the Interior is appealing the U.S. District Court’s decision to overturn the 2021 Florida gaming compact.
In the district court lawsuit, the Seminoles were not included as plaintiffs. The ownership group of two Florida pari-mutuels, West Flagler Associates, filed suit against Department of the Interior Secretary Deb Haaland.
In August 2021, Haaland allowed the compact to become law through inaction. As a result, when the pari-mutuels filed a federal lawsuit, she was listed as the defendant.
Why does the Seminole Tribe want to be involved?
If the Seminoles were listed as a defendant in the lawsuit, there’s a high likelihood this case would be dismissed. The tribe can claim that it can’t be sued because it is a sovereign tribal nation. Most legal experts believe this is a plausible defense that would crush West Flagler’s case.
They tried a similar motion in the lower court. The tribe filed a motion to intervene case for the limited purpose of filing its own motion to dismiss. However, Judge Dabney Friedrich denied the motion and ultimately ruled in favor of West Flagler.
In her ruling, Friedrich said the compact violated the Indian Gaming Regulatory Act (IGRA). Consequently, the entire compact was invalidated.
The Seminoles are now trying the same tactic with the appellate court. But aren’t the goals of the DOI and the Seminole Tribe aligned?
In short, yes. A win for the Seminole Tribe is also a win for the federal government.
But one of the arguments put forth by the tribe is that the federal government was unable to properly represent the tribe’s interests in the case.
The tribe criticized the government’s litigation tactics in district court. If for no other reason than to save face, the government needs to push back against that claim.
The DOI’s argument against the Seminoles
The DOI said they are the only indispensable party. Since this is an appeal of an Administrative Procedure Act, they claim the Seminoles aren’t necessary to the procedure.
Per the filing:
“The federal government opposed the dismissal on that particular ground, explaining that the United States is generally the only required and indispensable defendant in an APA lawsuit. The government itself can adequately represent a nonparty’s interest in seeing federal action upheld.”
The DOI then cited Ramah Navajo School Board, Inc. v Babbitt as the precedent for its argument. But maybe more notably, it only addressed the tribe’s appeal to intervene based on Rule 19(a) of the Federal Rules of Civil Procedure.
In their filing, the Seminole Tribe also cited Rule 24 of the same federal code. The DOI ignored those arguments in the latest brief.
On the other hand, the government did criticize the idea of dismissal based on sovereign immunity. They claimed that it would shield the tribe from further scrutiny even though these types of agreements should be reviewable by the federal government.
“While respect for an absent sovereign’s immunity is in some context a significant consideration when deciding whether a case must be dismissed, it is not a dispositive weigh in favor of dismissal – particularly on the facts of this case, where dismissal would render functionally immune from review an entire class of agency actions that this Court has concluded Congress intended to make reviewable.”
The government softened the blow when they said that while they disagreed with the tribe’s analysis, they did not oppose the motion.
Government argues against West Flagler as well
In the 43-page brief, the feds mostly focused on whether the Seminoles should be involved. But the government found some areas to once again argue that Friedrich made the wrong decision by overturning the compact.
The DOI called her ruling “erroneous” in the brief’s introduction. In the same section, the government states its desire for her decision to be overturned.
But in a more pointed argument, they argued against West Flagler’s original premise in the “Statement of the Case” section. They cited Amador County v. Salazar to argue that inaction from the federal government should be subject to judicial review.
This contrasts with West Flagler’s argument that Haaland had a duty to deny the compact. They agreed with Friedrich that the compact violated the IGRA, meaning Haaland should’ve never approved it.
At the end of the week, West Flagler will finally make its case. The pari-mutuel ownership group will file an answering brief on Thursday. A week later, West Flagler will file an amicus brief. Finally, in November, the feds and the Seminole Tribe will submit their reply briefs.
How we got here
- April 2021 – Gov. Ron DeSantis and the Seminole Tribe agree to a new gaming compact that would legalize sports betting and expand gaming options at both Seminole-owned casinos and pari-mutuel facilities.
- May 2021 – In a special session, the Florida legislature passes the compact by a 97-17 margin.
- July 2021 – West Flagler Associates, files a state-level lawsuit over the compact. It argues that the ‘hub-and-spoke’ model violated the Indian Gaming Regulatory Act.
- August 2021 – The Bureau of Indian Affairs, part of the DOI, gives tacit approval to the compact after Haaland chooses to let the 45-day window expire, effectively legalizing the compact.
- August 2021 – West Flagler Associates files a nearly identical lawsuit at the federal level.
- October 2021 – Judge Allen Winsor dismisses the state-level lawsuit filed by West Flagler.
- November 2021 – The Seminole Tribe launches Hard Rock Sportsbook at the start of the month. It’s the first legal online sportsbook in Florida. Brick-and-mortar sportsbooks are legal as well.
- November 2021 – About three weeks after the tribe launches its online sportsbook, U.S. District Court Judge Dabney Friedrich rules in favor of West Flagler. She says that the ‘hub-and-spoke’ model did indeed violate the IGRA. The appeals process begins shortly after the ruling.
- December 2021 – The Seminole Tribe shuts down its online sportsbook. The move comes after a judge denies a motion to stay. The stay would’ve allowed them to continue operating the sportsbook during the appeals process.
- July 2022 – The D.C. Court of Appeals releases the schedule for the case’s briefings. The last briefs will be filed by Nov. 14. Then, the court can schedule oral arguments, if necessary.
- August 2022 – The Seminole Tribe and the Department of the Interior file opening briefs. Other tribal organizations and the Florida Attorney General file amicus curiae briefs in the following weeks.