The U.S. Department of the Interior didn’t mince words Thursday when it opposed arguments by West Flagler and Associates in a court case involving the future of sports betting in Florida and wrote that a request for a rehearing is “unwarranted.”
The DOI and a pair of Florida parimutuels are battling in federal court over the legality of a compact signed between the the state of Florida and the Seminole Tribe. It centers on whether the DOI rightfully approved the compact, which would give the tribe a monopoly on retail and digital sports betting in the state.
If recent history is any indicator, the request for the new hearing will draw the case out for months, if not a year, meaning that the Seminole Tribe still cannot relaunch its Hard Rock Bet digital platform in Florida. As long as the case is active, since originating in U.S. District Court in August 2021, an order preventing the tribe from offering digital sports betting remains in place.
Simple English? Don’t plan on being able to place a mobile bet in Florida this football season.
En banc rehearings rarely granted
On June 30, a panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 3-0 to overturn a lower court ruling that favored West Flagler, which then had about two months to file for a rehearing before the same three-judge panel or all justices on the court. It filed Aug. 14 for an en banc hearing — meaning to be heard by the whole court. The court then requested a response from the DOI, which was filed Thursday.
The appellate court rarely grants en banc hearing requests — two were granted in separate cases in April and May 2021, and there have been none since. It will likely be months before the appellate court even determines if the case will be reheard by the full court panel.
The most recent request for an en banc hearing that was granted was filed in the court on May 5, 2021, in a case about the Americans with Disabilities Act, In that case, Mary Chambers vs. the District of Columbia, the court approved the rehearing and heard oral arguments in October 2021 before issuing a judgment in June 2022.
Prior to that, a habeas corpus case originally filed in 2019 had a timeline that looked like this: request for en banc hearing filed Dec. 7, 2020; hearing approved April 23, 2021; oral arguments heard Sept. 30, 2021; final mandate issued April 19, 2023.
From here, the court will review the DOI’s response without any formal or required timetable that it must follow. The case has already been what experts would consider extraordinary, as it is unusual for the court to ask for a response to an en banc rehearing request. In the two cases mentioned above, in which the rehearings were granted, the court also asked for a response from the defendant.
Key debate: What exactly does IGRA allow?
At issue in the Florida case is whether DOI Secretary Deb Haaland was within her rights to deem approved the 2021 compact that the state and the Seminoles agreed upon. That compact would give the Seminoles a monopoly on sports betting by allowing for a bet placed anywhere in the state to be considered as having been placed on tribal lands, if it runs through a server in Indian Country. The arrangement would be considered a hub-and-spoke model.
There has been much debate about whether this scenario is covered by the Indian Gaming Regulatory Act, which was written in 1988, well before the internet and cellphones became ubiquitous.
The new DOI brief reads, “West Flagler’s arguments for rehearing are strawmen, premised on its erroneous assertion that, by referencing the state-sanctioned wagers, the Compact — and the Secretary’s approval thereof — purport to unilaterally legalize the placement of those wagers and the State regime for regulating them. But, as West Flagler acknowledges, the panel held in no uncertain terms that the compact does not do that. And the panel did so while making scrupulously clear that neither its opinion nor the Secretary’s approval prevents West Flagler from challenging the relevant State law in Florida’s courts.”
Haaland did not sign the compact, but rather let a time frame elapse that allowed the compact to go into effect without her signature. West Flagler Associates, which owns parimutuel facilities in Florida, sued the DOI in federal court months later, but the Seminoles launched their Hard Rock platform ahead of oral arguments for 34 days before both the district and appellate courts demanded it be taken down.
According to the DOI response filed Thursday, “the Secretary had no duty to disapprove the Compact for the straightforward and fact-specific reason that the Compact can — and therefore must — be read in a way that is consistent with IGRA.”
The DOI has argued all along that the issue is not whether the compact itself is valid — in fact, in the DOI response, the agency suggests that is an issue for a state court — but whether or not Haaland was correct in allowing it to become deemed approved.
