A motion to the D.C. Court of Appeals by the Seminole Tribe of Florida following the denial of the Tribe’s motion for a stay of the ruling that the newly signed Compact with Governor Ron DeSantis governing sports betting violated the Indian Gaming Regulatory Act (IGRA) is on an expedited schedule.
The emergency motion filed on November 25 saw responses from the Department of the Interior, and the plaintiffs, West Flagler Associates, on November 30, 2021, and today we received the Seminole Tribe’s reply.
With briefing complete, we could see a decision at any moment. A ruling in favor of the Seminole Tribe would allow FL sports betting to continue while an appeal of Judge Dabney Friedrich‘s ruling plays out. However, a denial of the motion returns Florida to the 2010 Compact, which predates the authorization of mobile sports betting.
Catching up with the Department of Interior
The Department of Interior made its position on the Seminole Tribe’s motion known by declaring:
the federal government advises that, while it does not join in the Tribe’s motion for stay pending appeal and does not agree with all analysis presented in that motion, it also does not oppose the motion.
The milquetoast response to the Seminole Tribe’s emergency motion is followed by a defense of Interior’s representation of the Tribe’s interests in the district court proceedings.
West Flagler Associates’s response
The response to the emergency motion from the West Flagler Associates plaintiffs was far more substantive than the lack of opposition filed by the lawyers representing Interior.
The plaintiffs highlight several key reasons that the Court of Appeals should reject the emergency motion to stay the district court’s decision.
The first, the plaintiffs argue, is that the Compact, which they dub “unambiguously unlawful,” causes irreparable harm to its businesses. Second, the plaintiffs argue that the Tribe has not addressed the legal arguments necessary for reversing the District Court’s judgment. Third, the plaintiffs take aim at the Tribe’s decision to continue accepting bets and argue that:
The Tribe wants to have it both ways: to persuade this Court to grant a stay, it tells the Court that it is about to lose millions in revenue; but if this Court refuses to grant a stay, it is keeping its options to “remain fully open to all players.”
Finally, the plaintiffs argue that any harm the Tribe will suffer is entirely self-inflicted, once again highlighting that the Tribe launched its Florida sports betting product in advance of the district court’s ruling on the legality of the compact.
The plaintiffs argue that if the Court of Appeals accepts the Tribe’s position, it could effectively mean that all Administrative Procedure Act challenges to Interior compact approvals (or approvals by lapse of time) would not be subject to judicial review.
A failure to show irreparable harm in Florida sports betting?
The plaintiffs argue that the Tribe’s two claims of irreparable harm, sovereignty loss and revenue loss, both fail.
The South Florida gaming operators argue that the Tribe has no sovereignty interest in gaming off of tribal land. Therefore there is no abridgment of the Tribe’s rights.
The plaintiffs note that the Tribe has not yet committed to turning off the Florida sports betting tap pending appeal, and therefore any claims of loss of revenue lack foundation in the plaintiffs’ eyes.
Who serves the public interest?
Both sides (well, the plaintiffs and the Seminole Tribe) of the litigation have argued that their position serves the public’s interest.
The plaintiffs argue that the 2021 Compact created a scheme that “violates state and federal laws and makes unwitting bettors into accomplices in the violations of these laws.”
As a result, balancing the parties’ interests, the plaintiffs argue the public is best served by returning to the pre-2021 Compact status quo.
Always read the replies
The Seminole Tribe responded this morning, arguing that their assessments of damages are based “on documented facts.” The Tribe notes:
While the District Court stated the Tribe, as a non-party, is not bound by its decision, the decision has had an immediate chilling effect, with key vendors discontinuing their business with the Tribe even as it seeks a stay.
The Tribe’s reply emphasizes the ongoing payments of tens of millions of dollars to the Sunshine State since October.
As evidence of irreparable harm, the Tribe cites vendors ceasing to do business with the Tribe and suggests that this will be exacerbated if a stay is not granted.
Still not happy with the feds
In supporting its argument that it is likely to succeed on the merits, the Tribe again argues that the federal government did not adequately represent its interests.
The Tribe’s reply relies on Friedrich’s open frustration with counsel at the district court level as partial evidence that its interests were not represented.
The brief then argues that the Tribe would have raised arguments that the federal defendants failed to raise.
Expedited timeline for Florida sports betting ruling
A decision, in this case, is expected at any time.
The emergency nature of the motion and the expedited briefing schedule indicates that we will likely have an answer on the Seminole Tribe of Florida’s requested stay in very short order.