The opening briefs in the appeal of the decision that ended the brief emergence of regulated sports betting in Florida have been filed.
The Department of the Interior and the Seminole Tribe of Florida filed briefs laying out their arguments for the appeal. The District Court for the District of Columbia ruled in November 2021 that West Flagler Associates was correct in its assertion that the newly minted compact between the Seminole Tribe and Governor Ron DeSantis violated the Indian Gaming Regulatory Act (IGRA).
What was in original Florida sports betting ruling
While the effect of the ruling was to end regulated sports betting in Florida, the ruling also noted that Judge Dabney Friedrich believed:
- that the West Flagler Associates plaintiffs had standing to bring their claim
- that the Seminole Tribe was not an indispensable party to the litigation; and
- that the provisions deemed incompatible with IGRA were not severable from the rest of the compact.
In other words, the compact could not go on by, for instance, only allowing brick-and-mortar sports betting. The Department of the Interior and Seminole Tribe of Florida are now arguing that the District Court ruling erred and the judgment should be reversed.
What to make of the opening briefs?
These opening briefs set the stage for responses from the Department of the Interior to the Seminole Tribe of Florida and of course, the awaited response from West Flagler Associates.
The Department of the Interior’s brief took an interesting approach choosing to frame a unique argument about the nature of compacting and what is a part of a compact for the purposes of IGRA compliance, and what is ancillary and thereby does not implicate IGRA.
The Seminole Tribe’s brief takes aim at its exclusion from the District Court proceedings, and argues that the federal government dropped the ball on defending the Tribe’s interests, a position that seemingly found a lot of support in the District Court’s proceedings.
Next up is the Department of the Interior’s answering brief to the Tribe on October 3 and then West Flagler Associates’ answering brief on October 6.
Department of the Interior’s arguments
The Department of the Interior begins its brief by laying out the nature of the federal framework that governs gaming on tribal lands. The first argument that the federal appellants make is that IGRA permits compacts to contemplate gaming off tribal lands and does not impose an affirmative duty on the department to examine state law to verify if the compact comports.
The federal government further argues that compacts are permitted to discuss gaming outside of tribal land and highlights that various tribes simulcast horse races off tribal land, though the brief does not appear to mention the regulatory structure that horse racing exists under.
The government goes on to argue that the District Court erred in finding that the compact violates IGRA. The government argues that while off-tribal land betting is not governed by IGRA, it can still be addressed in an IGRA-compliant compact.
The feds kept swinging
The federal government concludes its first argument by stating:
the Secretary has no desire—and no power—to bless nonIndian land wagers that are ultimately held to violate state law. But whether any wagers contemplated by the Compact do in fact violate state law is simply not a question that the Secretary has the expertise to answer when deciding whether to approve a submitted compact.
The Department of the Interior’s second argument is that the plaintiff’s claim is non-justiciable, meaning it is not something that a court can resolve. This argument effectively says that of the options that IGRA affords the approval process for a compact, having a court order the Secretary of the Interior to disapprove the compact is not a possible remedy.
The feds then attack the other alleged violations of federal law that were floated by the West Flagler plaintiffs. They argue that neither the Wire Act, the Unlawful Internet Gambling Enforcement Act, nor the Fifth Amendment‘s equal-protection principles are violated.
Seminole Tribe of Florida’s brief
The Seminole Tribe’s brief is focused on the District Court’s conclusion that the tribe was not an indispensable party to the litigation. Most notably, the tribe argues that the District Court erred when the tribe’s sovereign immunity was not weighted properly in the District Court’s analysis. The Tribe’s lawyers note that the failure to join tribes in lawsuits has led to dismissals in other cases.
The tribe then argues that the court’s entire Rule 19(b) analysis was flawed and misinterpreted the law. Rule 19(b) has four factors that must be evaluated to determine if parties must be joined.
(1) “the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;”
(2) “the extent to which any prejudice could be lessened or
avoided;”(3) “whether a judgment rendered in the person’s absence would be adequate;”
(4) “whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.”
More on tribe’s Florida sports betting case
The tribe also argues that its interests were not adequately represented by the federal government. The tribe cites several other cases in the D.C. Circuit where it was found that the Department of the Interior had failed to adequately represent the interests of a tribe, potentially showing a pattern of the federal government not adequately representing tribes.
The Seminole Tribe notes the comments of the District Court that the federal government failed to engage the merits of the case as evidence of the inadequate representation of the tribe’s interest. The tribe highlights that the federal government’s interest was devoted to defending its process as opposed to advocating the rights of the tribe.
The tribe also argues that it should have been allowed to intervene on a limited basis under Federal Rule of Civil Procedure 24(a), noting that the District Court never even addressed the argument.
