November 14 was the day that Florida sports betting watchers had been waiting for, at least until December 14.
The final briefs in the D.C. Court of Appeals before oral arguments have been filed by both the Seminole Tribe of Florida and the federal government. This sets the stage for oral arguments on December 14 in the District of Columbia. As we cross the one-year window from Florida’s brief foray into regulated sports betting, the case opens up hope that sports betting could return to the Sunshine State.
While oral arguments are scheduled for December 14, bettors should not get their hopes up for a quick decision, as judges in the D.C. Court of Appeals are expected to turn over their draft opinions to the other judges on the panel within 180 days. Those judges then have the opportunity to provide feedback, and draft a concurrence or a dissent.
All this adds up to it probably being somewhere between 6-12 months before we know whether FL sports betting will return.
Seminole Tribe of Florida reply brief
The Seminole Tribe of Florida was the first to file their reply brief getting it docketed before noon on November 14.
The Tribe makes a whopping six arguments in its closing brief before the Court of Appeals.
The District Court was mistaken
The first argument raised is that the District Court erred in its application of the Kickapoo case. The Tribe argues that:
“The District Court misstated the rule as requiring only that it limit its analysis to the four Rule 19(b) factors, ignoring the admonition that it must also give great weight to the Tribe’s immunity when doing so.”
The Tribe argues if proper deference had been given to the Tribe’s immunity, the District Court would have found that the Tribe should have been granted the ability to intervene. The Tribe also argues that the federal government failed to raise this misapplication.
A sword or a shield in Florida sports betting?
The question has been raised: if the Seminole Tribe of Florida was allowed to intervene, would that effectively mean that the Indian Gaming Regulatory Act (IGRA) was no longer subject to judicial review?
Here the Tribe argues that this is not the case and that many claims would still be subject to judicial review.
Required to be here?
The Seminole Tribe of Florida’s tertiary argument is that even the District Court concluded that the Tribe was a required party.
Therefore they should have been allowed to participate in the case as a party.
The Tribe then goes on to argue that the Department of the Interior has done an inadequate job of representing tribal interests. The Tribe takes aim at the feds’ “diverging interests,” highlighting that the Department of the Interior failed to bring its own Rule 19 motion, and then the federal agency failed to take a position on the Tribe’s motion despite agreeing to a briefing schedule and hearing date.
The brief goes on to argue that the Tribe and the federal government have different interests in the outcome of the litigation.
Overall, the Tribe hammers home the idea that Rule 19 of the Federal Rules of Civil Procedure should have resulted in the District Court allowing the Tribe to participate, and contrary to the District Court’s holding, the federal government did not provide adequate representation to the Tribe’s interests.
Feds take one more written swing
A little after 5 pm EST, the federal government filed its reply brief. Unlike the six arguments raised in the Seminole Tribe of Florida’s brief, the feds felt that only two were necessary.
Their first argument advances their position that the District Court erred when it vacated the 2021 Compact. The brief doubles down on the argument that IGRA permits compacts to address subjects that take place off tribal land and the Secretary is not required to verify compliance with state law.
Deemed if you do and deemed if you don’t
The brief again reiterates an earlier government argument that:
“That court erred by choosing to read ambiguous Compact text “deem[ing]” wagers placed outside Indian lands to occur “on Indian lands” as an unlawful attempt to declare that IGRA itself authorizes such wagers, instead of accepting an available lawful interpretation—i.e., that wagers placed outside Indian lands are authorized, if at all, by state law, while the “deemed” language clarifies how the State and Tribe will treat such wagers for purposes of establishing their respective regulatory jurisdiction.
The government’s argument here is effectively that the plaintiffs have read too much into the Compact and while the Compact allows Florida sports betting to take place off of tribal lands that is not occurring pursuant to IGRA.
The brief concludes by arguing that West Flagler’s additional theories of why the District Court’s decision should be upheld “lack merit.”
What to make of Florida sports betting briefs?
As expected, both the Seminole Tribe of Florida and the federal government largely played the greatest hits collection, summarizing their arguments from their opening briefs while seeking to weaken arguments advanced by West Flagler.
While the Seminole Tribe of Florida kept numerous potential avenues open with its closing brief, the federal government followed up the first part of its core argument with a second attempt at the somewhat confusing suggestion about the Compact allows mobile wagering, but not pursuant to IGRA.
Ultimately, we are now under a month away from seeing how the judges react to these arguments.