In 2003, “The Lord of the Rings: The Return of the King” dominated the Oscars by going an unprecedented 11-0 in categories it had been nominated for. On October 6, the plaintiff in a Florida sports betting lawsuit delivered a similarly dominating performance in a masterful legal brief.
West Flagler Associates needed less than three days to deliver a 110-page response to the defendants’ cry for a new result in an appeal of the case that has suspended legal wagering on sports in Florida for nearly a year. The bottom line is that the brief’s contents make it look like a successful appeal is even more of a long shot than any film replicating the Academy Awards domination of “The Return of the King” anytime soon.
West Flagler lays the hammer down in Florida sports betting lawsuit
Last week, the U.S. Dept. of the Interior (DOI) argued why the D.C. Circuit Court of Appeals should find that the district court erred in its November 2021 ruling that favored West Flagler’s cause. In the same brief, the Seminole Tribe of Florida also made its case for why the same lower court made a mistake when it declined to let the tribe intervene in West Flagler Associates v. Haaland, et al.
The DOI’s arguments largely echoed an earlier set of views from the U.S. Justice Dept. (DOJ), representing Secretary of the Interior Deb Haaland. The arguments mainly depend on convincing the appellate court that the district court’s decision to invalidate the gaming compact Haaland/the DOI had approved was wrong.
To make that case, the DOI and DOJ both rely on a strategy of separating the in-person and online sports betting aspects of Florida sports betting in the eyes of the court. In its response, West Flagler contends that’s complete fiction.
“This contorted position requires the Court to ignore what the Compact actually says, and the obvious attempt of the compacting parties to obtain the imprimatur of IGRA to authorize gaming off Indian lands as if it occurred on Indian lands—federal authorization that was necessary, from the perspective of the Tribe and Florida, because state law did not permit such gaming.”
Imprimatur in this context refers to the court’s acceptance of a premise as true, in this case, that the Indian Gaming Rights Act (IGRA) can itself authorize tribal gaming on lands not held in trust for a federally recognized tribe. Essentially, West Flagler is stating two solid theories.
It doesn’t look good for the defendants
First off, as John Holden of Legal Sports Report has already astutely pointed out, West Flagler states the defendants are trying to dance around the main issue that the lower court determined was the death knell to the compact; its inclusion of online gambling outside tribal lands that IGRA expressly forbids.
In fact, as Holden notes, West Flagler asserts that Haaland has an obligation under the IGRA to deny approval to any compacts containing such provisions. Thus, the district court’s decision was correct.
Furthermore, the defendants have put it to the court that the DOI and DOJ are asking it to defy all precedent regarding IGRA.
“Here, the Compact unambiguously purports to give IGRA authorization to wagers made off Indian land… Also, collapsing the distinction between ‘gaming activity’ and the ancillary administrative acts needed to support such activity is inconsistent with both the plain text of IGRA and the Supreme Court’s decision in Bay Mills.”
The brief goes on to call the DOI’s attempt to reconfigure the situation an “effort to fit an elephant into the mousehole.” Responses to these stances by West Flagler Associates could be even more ill-fitting.
So what happens now?
The DOI and DOJ have until Nov. 14 to file their responses to West Flagler’s arguments. There could be other filings in the case over the next couple of days from other interested parties, supporting either side.
Currently, there is no schedule for oral arguments in the case. That means there’s no timetable for when the appellate court will issue any decisions, but what’s likely to come first is a decision on whether the Seminole Tribe can join the litigation as a party to the complaint.
Those hoping for the appellate court to reverse the lower court’s ruling shouldn’t get their hopes up, though. The defendants’ arguments for how the district court went wrong look quite thin in light of the plaintiff’s reasoning.