The DC Circuit US Court of Appeals denied a request Thursday to stay its mandate reaffirming the Seminole compact while the plaintiff appeals to the US Supreme Court.
The DC Circuit ruled June 30 in West Flagler v. Haaland that the compact between the Seminole Tribe and State of Florida did not violate the Indian Gaming Regulatory Act (IGRA), reversing a district court decision.
After a request for rehearing failed, West Flager asked the DC Circuit to refrain from making its decision official by sending it to the lower court while the plaintiff prepared its appeal to the US Supreme Court. Or to at least give West Flagler time to seek a stay from the Supreme Court. The DC Circuit denied the motion on both counts.
That means the DC Circuit should soon issue its mandate on a separate docket entry and order, effectively giving the Seminoles a green light to relaunch Florida sports betting under the compact.
But the Seminoles appear to be holding back, seeing yellow lights in other directions.
Earlier this week, West Flager filed a state constitutional challenge of the 2021 Florida Gaming Compact with the Florida Supreme Court. Sports and gaming attorney Daniel Wallach also expects the plaintiff will soon file an emergency application with the US Supreme Court with a request to stay the appellate mandate while the higher court considers whether or not to take the case.
Gary Bitner, spokesperson for the Seminole Tribe, issued the following statement:
“It’s another positive development, but it will have no immediate effect on the Seminole Tribe’s plans.”
Next steps in Florida sports betting case
Wallach told PlayUSA that issuance of the DC Circuit mandate is now merely a procedural act by the Clerk of the Court that should occur by the end of the day Friday.
In its filing asking the DC Circuit to stay the mandate, West Flager stated its intention to petition the Supreme Court to hear the case.
West Flagler has 90 days from denial of the rehearing to file its appeal with the Supreme Court. The DC Circuit denied a request for rehearing on Sept. 11.
The next step for West Flagler likely is to file an emergency request with the US Supreme Court to stop the mandate reaffirming the Seminole compact. West Flagler mentioned that intention in the DC Circuit request.
Wallach commented that, by the end of next week, there could be parallel proceedings before the US Supreme Court and a state supreme court.
In the state filing, West Flagler asked the Florida Supreme Court to use its “all writs” power to temporarily suspend the sports betting provisions of the compact while the court reviews their constitutionality.
Wallach also expects the Florida Supreme Court to issue an order within the next few days directing Gov. Ron DeSantis to file a response to West Flagler’s petition. The state’s response will likely be due in late October.
Wallach thinks the parallel proceedings at the state and federal level could delay the relaunch of Florida online sports betting past Thanksgiving.
The Seminoles likely would at least want to see the US Supreme Court deny staying the mandate and the Florida Supreme Court deny temporarily suspending the sports betting provisions before it would proceed with relaunching the Hard Rock Bet app.
Seminole lawyer comments on case
Attorney Joseph Webster, who represents the Seminole Tribe in the West Flagler case, discussed the background leading to the legal challenge earlier this month on a panel attended by the author at the Indian Gaming Association Mid-Year Conference at Foxwoods Resort Casino in Connecticut.
Webster marveled at how the Seminole Tribe, State of Florida and US Secretary of the Interior are all on the same side of a lawsuit.
“I’ve had the privilege to represent the Seminole tribe for almost 30 years, and during that time there were a number of litigations that were filed — the state against the tribe, the tribe against the state, the feds against the tribe — multiple cases going on at the same time. To get to the point we’re at today where you have all three sovereigns on the same side in a litigation about what can be agreed to in a sovereign-to-sovereign agreement is kind of an amazing situation.”
Webster attested that the Seminole compact with Florida is how IGRA was supposed to work. “IGRA was supposed to encourage tribes and states as sovereigns to come together to reach agreements.”
He said that in preparing the compact for the Seminole tribe, he and other attorneys focused on a list in IGRA of items that tribes and states can agree on in a compact.
“One of those items is allocation of civil and criminal jurisdiction and how that can be used in the context where you do have a tribe and a state say ‘OK, we have this activity where there’s an aspect of it that’s on Indian lands, there’s an aspect that’s not, can we allocate jurisdiction so that it’s entirely regulated pursuant to the compact?’ And the answer at least from the DC Circuit is yes.”