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Legal maneuvering could push back the relaunch of Florida sports betting past the start of the NFL season.
West Flagler Associates filed a petition Monday for a rehearing en banc with the DC Circuit US Court of Appeals. En banc means the case would go before all 11 judges in the circuit court. A three-judge panel previously decided the case.
Seminole spokesperson Gary Bitner issued the following statement indicating the unlikelihood of a rehearing:
“It’s important to note the three-Judge panel of the US Court of Appeals for the District of Columbia Circuit issued a unanimous decision in favor of the US Department of the Interior, which approved the Gaming Compact between the Seminole Tribe and the State of Florida.”
The Seminole Tribe and the State of Florida agreed in 2021 to a compact that made the Seminoles the hub in a hub-and-spoke model hosting statewide online sports betting on tribal lands.
West Flagler was one of the Florida commercial gaming operators unhappy with the sports betting monopoly granted to the Seminoles in the compact. The parimutuel property owner filed a lawsuit against US Department of the Interior Secretary Deb Haaland for allowing the compact to proceed under the Indian Gaming Regulatory Act (IGRA) despite the wagering originating outside of Indian lands.
Federal District Court Judge Dabney L. Friedrich ruled in November 2021 that the compact violated IGRA. But the DC Circuit Court overturned that ruling June 30, saying the District Court erred in invalidating the Seminole compact. Monday was the deadline for petitioners to file for a rehearing.
West Flagler makes case for rehearing
In the 63-page filing for rehearing written by attorney Hamish Hume of Boies Schiller Flexner LLP, plaintiffs argued that the opinion raises questions of exceptional importance regarding the scope of IGRA and conflicts with precedent from other circuits.
“The Opinion is erroneous and will create confusion, and thus rehearing is warranted. … The net effect of the Opinion is that a tribe and state may now contract to give the tribe a statewide monopoly on gaming off Indian lands so long as some of the gaming also occurs on at least one square foot of Indian land.”
An interpretation of language in the US Supreme Court’s decision on Michigan v. Bay Mills seems at the heart of the DC Circuit ruling.
The 2014 Supreme Court ruling held that “Everything — literally everything — in IGRA affords tools … to regulate gaming on Indian lands, and nowhere else.”
Petitioners hold that all prior cases, consistent with the plain text of IGRA, held that the secretary may approve only those tribal-state compacts that authorize gaming on Indian lands. But the DC Circuit determined that the Secretary may approve a compact so long as any portion of the gaming occurs on Indian lands.
“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 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.”
Granting of rehearing extremely unlikely
Granting an en banc request requires approval from six of the 11 DC Circuit judges.
Assuming the three judges who participated in the ruling would not grant a rehearing, that means six of the eight remaining judges need to see merit. And the DC Circuit hasn’t granted a rehearing in two years. Historically, it tends to grant one or two per year.
Florida-based gaming attorney Daniel Wallach said he believes there is cause for a rehearing. Wallach was one of several gaming attorneys who spoke with PlayUSA about possibilities for the case and Florida sports betting.
But given the unanimous ruling and the narrow focus of rehearing, Wallach told PlayUSA Monday he expects the DC Circuit to deny rehearing by the middle of September.
“My expectation is that the denial for rehearing will be rather swift and issued within a matter of weeks, maybe even before the end of August. My best guess would the middle of September. I expect the DC Circuit to take action on this petition without needing a response from the Department of the Interior or the Seminoles.”
If the rehearing isn’t granted, the plaintiffs have other options to continue their legal challenge of the Seminole compact. They have 90 days from the denial of the petition for rehearing to petition the US Supreme Court to review the case.
They could also opt to file a challenge in state court. The DC Circuit panel did invite this option by opining: “Whether it is otherwise unlawful for a patron to place bets from non-tribal land within Florida may be a question for the state’s courts.”
West Flagler will continue fight
Although getting a rehearing is unlikely, the filing does show that West Flagler isn’t ready to abandon its quest to prevent the Seminole Tribe from controlling online sports betting in Florida.
Earlier this year, West Flagler sold Magic City Casino to the Alabama-based Poarch Band of Creek Indians. The sale created doubt about whether West Flagler was motivated to continue the lawsuit.
“I think the importance of the filing isn’t that it keeps hope alive for appeals but that it shows West Flagler is in it for the long haul and will continue with the Supreme Court or state court,” Wallach said. “There were some questions on if they had the wherewithal to stay with it.”
West Flagler did retain Florida gaming interests in two other properties in the Miami area. The filing for rehearing seems to indicate that West Flager will exhaust all legal options to challenge the Seminole compact.
Filing might not stop Florida sports betting relaunch
The DC Circuit had said it would not issue the mandate to close the appeal until either one week after the deadline passed to file for rehearing or one week after denial of such a petition.
With a quick ruling like Wallach expects, the Seminoles could still relaunch the Hard Rock Bet app by the Sept. 7 start of the NFL season.
If the DC Circuit waits until the middle of September to act, it could push back Florida sports betting until a couple of weeks into the season.
In the event of a denial, Wallach said West Flagler could also ask the DC Circuit to withhold or stay the mandate while it appeals to the US Supreme Court.
But Wallach clarified that this is not an injunction. If the Seminoles want to be aggressive about executing the compact, they can relaunch Florida sports betting at any time and make someone force them to take it down.
