After months of waiting with Ninth Circuit Court of Appeals approval, Maverick Gaming last week filed its opening brief in its appeal of a District Court ruling that the gaming operator was incorrect in its assessment of the validity of Washington compacts that permitted tribes throughout the state to offer sports betting.
Maverick Gaming is represented by Ted Olson and Matthew McGill, the legal minds behind New Jersey‘s eventually successful challenge of the Professional and Amateur Sports Protection Act (PASPA), which has allowed the expansion of US sports betting nationwide.
The 98-page brief filed July 3 sets its sights on the District Court’s decision to rule in favor of the Shoalwater Bay Tribe‘s motion to intervene under Rule 19 of the Federal Rules of Civil Procedure. If you feel like you are having deja vu all over again from the D.C. Circuit Court of Appeals, you are not mistaken.
Quick refresher on WA sports betting case
In 2020, Washington and numerous tribes throughout the state agreed to new compacts that permitted on-premises sports betting. Maverick filed suit against the federal government, and various Washington officials, alleging that the compact should not have been approved.
Maverick alleged the Secretary of the Interior had an obligation to reject the compact “under IGRA [the Indian Gaming Regulatory Act] itself, the constitutional equal-protection guarantee, and the Tenth Amendment’s anti-commandeering principle.”
The multi-state gaming operator argued that state officials violated federal law in entering into the compacts and that the equal protection violation should result in the state ceasing to enforce criminal prohibitions against the operation of Class III gaming activities in the state.
The Shoalwater Bay Tribe sought to intervene in the case, a motion which was ultimately granted by the District Court judge. In granting the motion, the tribe was successful in seeking dismissal of the case on the grounds that they have sovereign immunity and cannot be sued unless they consent. Maverick appealed.
Appeal by Maverick Gaming
The case at the District Court raised a number of very significant constitutional questions, as well a meaningful challenge to IGRA’s very existence. The appeal is focused on whether the Shoalwater Bay Tribe is an essential party under Rule 19 of the Federal Rules of Civil Procedure.
Maverick argues that the Tribe is not a required party under Rule 19(a) because the United States federal government is a party to the case that is capable of adequately representing the interests of a tribe. The appeal argues that there is a presumption that:
where parties share the same ultimate objective, where the government defends its own action, and where the government has a duty to represent the interests of an absentee. Neither the Tribe nor the district court offered any persuasive reason to depart from those presumptions in this case.
Maverick’s appeal then goes after “[t]he Tribe’s backup argument,” arguing that the Court is able to provide “meaningful relief” without the addition of the Tribe to the case.
Maverick continues by arguing that under Rule 19(b), there is reason not to dismiss the case. The gaming operator argues:
- There is no prejudice, as the tribe has not argued that they would make arguments other than those raised by the feds;
- Even if there were prejudice, the tribe could overcome that by filing an amicus brief;
- This step would allow Maverick to continue its suit against the state and federal officials; and
- Finally, the lack of alternative ways to resolve the matter weighs against dismissal.
Maverick further argues that the enforcement of “public rights” merits analysis by a court, despite the District Court’s dismissal of the argument.
What to make of opening briefs?
This case has a long way to go before it is ultimately resolved. Maverick faces a significant uphill battle in the Ninth Circuit. Even if successful on its arguments regarding joinder of the Shoalwater Bay Tribe under Rule 19, Maverick would then need to be successful at the District Court on the merits of the case. As the District Court decided the matter of Rule 19 as the path for dismissal, there remain other significant portions of the case that are unresolved.
Ninth Circuit precedent is not favorable to Maverick; however, the company knows this and articulated so much in its briefs at the District Court. Indeed, it appears likely that the Ninth Circuit is only an intermediate stop for this case and Olson has sights likely set on getting the matter before the Supreme Court.
A decision against Maverick could set up something of a circuit split on the indispensability of Tribes under Rule 19, as the D.C. Circuit Court of Appeals recently dismissed the Seminole Tribe of Florida’s appeal over its inclusion under Rule 19.
What next for Washington sports betting case?
The answering briefs in this case are due September 1. Maverick will then have the opportunity to reply, with that being due 21 days later.
At this point, it appears likely that oral arguments would follow, though there is the possibility that one of the parties could seek to dispense with oral arguments and get a ruling on the briefs alone in order to fast-track this case for its seemingly inevitable petition to the Supreme Court.