The US Department of Interior (DOI) pushed back on the idea that a pair of brick-and-mortar gaming facilities that lost an appeal in their fight over Florida sports betting, and the launch of Hard Rock Bet, deserve to have the case reheard by the entire appellate court.
In filing its objection, DOI is signaling that it intends to fight the assertions that the two parimutuels have been making in US Court of Appeals for the District of Columbia Circuit — namely, that the State of Florida and DOI Secretary Deb Haaland violated the Indian Gaming Regulatory Act (IGRA).
“Rehearing en banc is not warranted,” the DOI said in a response it filed Thursday with the DC appellate court.
What happens next depends on whether the court decides to rehear the case. One prominent gaming law attorney told pokerfuse on Friday that if it does, there will likely be no wagering on the NFL this season from the Sunshine State.
DOI: Plaintiffs Using “Straw Man” Argument
The two plaintiffs in the case, West Flagler Associates and the Bonita-Fort Myers Corporation, sued DOI in August 2021, alleging that the agency and Florida Governor Ron DeSantis had violated IGRA by agreeing to an amended 30-year gaming compact. The parimutuels argued that by allowing wagers off of tribal lands (but not on other tribal lands), the compact equated to an illegal expansion of gaming under IGRA.
A district court judge agreed with the parimutuels in November 2021, but the government appealed. DOI won the next battle — a three-judge panel from the circuit court ruled in the agency’s favor on June 30.
West Flagler and Bonita-Fort Myers filed an en banc petition on August 14, meaning they want all 11 members of the circuit court to rule on their case.
In its filing, the DOI said the arguments being made by the parimutuels for a rehearing “are strawmen, premised on its erroneous assertion that, by referencing the state-sanctioned wagers, the [gaming] 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.”
DOI added that the three-judge panel from the DC appellate court “correctly held that 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.”
Wagering Could Be Delayed For Months
At this juncture, it is unclear how long it will take before sports betting can resume in Florida.
“It depends,” Jeff Ifrah of Ifrah Law PLLC told pokerfuse on Friday, when asked how long a delay could ultimately take. “If the court takes the case, it might not. If it declines to hear it, the Seminoles could be back up in no time.
“But if the court hears the case, it could mean no legal betting in Florida this NFL season.”
That means the appeals process could potentially drag on for months. If the DC appellate court upholds the ruling by the three-judge panel or refuses to rehear the case altogether, the parimutuels could appeal to the US Supreme Court. A refusal by the high court to take the case would likely spell the end of the matter.
The Seminole Tribe was making preparations to launch Hard Rock Bet on August 21 — a little more than two weeks before the start of the NFL season, scheduled for September 7 — but the appeal by the plaintiffs scuttled those plans. The tribe rebranded its Hard Rock Sportsbook as Hard Rock Bet in July.
West Flagler owns the Magic City Casino & Flagler Dog Track, while Bonita-Myers owns the Bonita Springs Poker Room. There is a thriving Florida poker scene, with dozens of card rooms, but no online poker. The gaming properties are located in Miami and Bonita Springs, respectively.
The case is West Flagler Associates Limited et al v. Debra Haaland et al (No. 21-5265).
