After a flurry of litigation in August, the legal battle over the Florida gaming compact experienced a lull in September.
However, the court case that will decide the immediate fate of Florida sports betting will heat up again in October.
The case pits the Department of the Interior against West Flagler Associates, which owns two Florida pari-mutuels. Meanwhile, the Seminole Tribe of Florida is seeking the ability to intervene.
Last month, the DOI and the Seminoles filed opening briefs outlining why the D.C. Court of Appeals should overturn a District Court ruling that invalidated the Florida gaming compact. Additionally, various tribal organizations and the State of Florida filed amicus curiae briefs supporting the appeal.
Next week, the federal government files an answering brief to the Seminole Tribe’s motion to intervene. The government will file the paper won on Monday, Oct. 3. West Flagler will file a response brief to both the government and the Seminole Tribe on Oct. 6.
Recapping the case so far
In the spring of 2021, Gov. Ron DeSantis and the Seminoles agreed to a new, 30-year gaming compact. The highlight of that agreement was the legalization of both retail and online sports betting in the Sunshine State.
The deal essentially gave the tribe a monopoly of that market through the ‘hub-and-spoke’ model outlined in the compact. The tribe would have exclusivity over the mobile and online betting market. Anyone betting from their phones or computer would do so on the Hard Rock Sportsbook app.
West Flagler filed suit and last November; Judge Dabney Friedrich ruled the model violated the Indian Gaming Regulatory Act. As a result, Friedrich invalidated the compact, and sports betting was once again illegal in Florida.
Both the DOI, the federal agency that approved the deal, and the tribe, appealed the decision. They filed their opening briefs last month, marking the first official step in the appeals process.
The feds’ argument
The government made two substantive arguments in its 75-page opening brief. First, they argued the compact is actually compliant with the IGRA. They claimed that simply because a compact discusses activity that takes place away from tribal land, it does not put a compact in conflict with the legislation.
Secondly, they argued against West Flagler’s claim that DOI Secretary Deb Haaland could not be compelled to disapprove a tribal deal. Haaland approved the Florida gaming deal through inaction in August 2021.
Instead, the federal government says the IGRA is permissive and allows the Secretary of the Interior to disapprove it. But it does not require her to do so.
The Seminole Tribe’s appeal
Despite not being listed as a relevant party in the case, the tribe is all over the D.C. Court of Appeals.
Not only are they appealing the district court’s ruling that denied their ability to intervene in the case. But they also were one of the various tribal organizations involved in the amicus curiae briefs.
The Seminole Tribe’s appeal is focused on two principal arguments. First, they argued they were an indispensable party to the litigation, and the government didn’t adequately represent the tribe’s interests.
Secondly, the tribe argued that even if they were an indispensable party, they should’ve been granted permissive intervention status.
In either scenario, the tribe likely advocates for dismissal on sovereign immunity grounds.
What can we expect to see next week?
The first brief on display will be the government’s answering brief to the Seminole Tribe’s appeal.
The feds are likely to defend the job it did representing the tribe’s interests. But they won’t have much interest in defeating the tribes’ arguments. A win for the Seminole Tribe essentially translates into a win for the DOI.
On the other hand, West Flagler Associates is likely to come out on the attack. They will go after the federal claims regarding the scope of the IGRA and the Seminole Tribe’s proposed intervention.
The South Florida gaming magnates will probably argue that District Court Judge Friedrich was correct in her assessment. The IGRA does not permit the compact process to encompass activities away from tribal land.
In addition, West Flagler is likely to claim that the fed’s interpretation of the mobile provisions being ancillary to the compact is complete fiction created after the fact. Some of the documents surrounding the passage contradict the idea that the compact itself did not authorize off-tribal land gaming.
In response to the tribe, it’s expected that West Flagler will continue to attack the Seminoles’ ability to intervene. They will argue that the Tribe has no sufficiently proved the argument that the government doesn’t adequately represent the tribe’s interest.
And then what?
After next week, there is an Oct. 13 deadline for any amicus briefs to be filed. Afterward, the Seminole Tribe and the federal government have until Nov. 14 to file reply briefs.
We should know in the coming weeks when this case will be scheduled for oral arguments. Following oral arguments, we could receive a decision at any time. However, a realistic timeline is probably between six and 12 months after the date of the arguments.