Earlier today was the first oral hearing challenging the newly minted and now-launched compact governing Florida sports betting.
Though scheduled for Federal Court in the District of Columbia, the hearing took place over Zoom and was available on an audio feed for the public meant that anyone in the country could listen in.
The hearing began with Judge Dabney Friedrich narrowing the scope of just what would be discussed. She noted that the docket had become inundated with various motions and that it simply was not feasible to address everything.
Immediately, she singled out the Seminole Tribe‘s motion to intervene and accompanying motion to dismiss as matters that would not be reached today. Judge Friedrich did, however, invite Seminole Tribe lawyer Barry Richard to stay on the line if he so desired.
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This was a rough day for the government lawyers. Friedrich expressed audible frustration with the government’s decision to focus on the standing argument and not address the merits arguments in their briefs.
However, despite her apparent frustration, Friedrich did consent to grant the government until November 9 to file a supplemental brief, which will conceivably result in the government taking a firm position on what is encompassed within the term “Indian lands” within IGRA. Judge Friedrich said that she would have her decision by November 15.
Who was at the party?
The public access line was befallen by the failure of the auto-mute function. That meant at times lawyers were drowned out by marital inquiries about whether “the dishwasher had been run” and at least one announcement of a bowel movement.
Despite the “noise” that accompanied the arguments, the principal parties were the government defendants, the Department of the Interior, and Secretary Deb Haaland. Department of Justice attorneys represented them.
In addition, the West Flagler Associates plaintiffs were represented on the call by their counsel, Hamish Hume, and other members of the firm Boies Schiller Flexner. There was also counsel present for the Monterra plaintiffs from the South Florida offices of Stearns Weaver.
Not an ideal start for the government
For roughly the first 30 minutes of the hearing, Friedrich questioned government lawyers whether they had complied with the briefing schedule that the Judge had set out previously. Notably, Friedrich took exception that the government attorneys noted that if the hearing moved past arguments of whether the plaintiffs have standing, they might require additional time to file a supplemental brief.
Judge Friedrich noticeably raised her voice in what sounded like frustration with the government lawyer’s efforts to avoid answering a yes or no question about whether the defendants were prepared to argue the merits-based arguments today.
The government attorney eventually conceded that she would do her best to address the arguments if the government was not allowed a supplemental brief. After this lengthy introduction, Friedrich addressed the elephant in the room.
… that elephant in the room
Moving on from questioning the government’s preparedness to proceed, Friedrich asked the plaintiffs if, as stipulated in their most recent brief, the Seminole Tribe’s properties had indeed launched mobile Florida sports betting on November 1.
The plaintiffs’ attorneys confirmed the launch and addressed the filing that stated that they had been told a FL sports betting launch would not happen before November 15. Plaintiffs’ counsel said that they made the representation after speaking with a representative of the Seminole Tribe.
A concrete injury?
One potential risk of the launch on November 1 could be that the plaintiffs might have seen what was merely a hypothetical injury (lost revenue) move to a concrete injury.
Indeed, counsel for West Flagler Associates told the court that they were injured, claiming they had experienced a 35% drop in revenue yesterday (presumably, this was a year-over-year drop,) Showing a concrete injury is one of the essential elements of standing.
So the fact that the plaintiffs are now able to put actual numbers to their claims certainly does not hurt their argument that they have been harmed (of course, the defendants and the Seminole Tribe have not had a chance to refute the claims, so there could be other explanations.)
Counsel for the Monterra plaintiffs (the group that includes individuals, business owners, and the No Casinos group) referred to this as “a very unusual case.”
What are Indian lands?
If the case survives the standing arguments, it appears that Friedrich will hone in on the issue of whether the hub-and-spoke model is permitted under the Indian Gaming Regulatory Act (IGRA) language that requires tribal gaming to take place on “Indian lands.”
Plaintiffs’ counsel argued that it is relevant both where the bet is placed and where it is received. At present, there are millions of people placing bets nowhere near “Indian lands,” and this would typically qualify as a felony.
It sounded like government lawyers were attempting to avoid committing firmly to whether they believed that all gaming under the model contemplated by the Compact occurs on “Indian lands.” Instead, the lawyers attempted to differentiate the present Compact from the Coeur d’Alene case and IIpay Nation (sometimes called the Desert Rose case) and asked for the opportunity to respond to it directly in a supplemental brief.
Where do we go from here?
As a brief coda, it is difficult to read too much into Friedrich’s frustration with the Government’s lawyers. At the end of the day, the case will be decided on the legal merits, as opposed to the Judge’s views on the Government’s compliance with her orders.
LSR reporter Matthew Waters contributed to this story.