The gaming operators that took the federal government to court for approving a gaming compact giving the Seminole Tribe of Florida statewide rights for online Florida sportsbooks chose Monday to continue their case. However, they may face long odds in getting the case heard at that level.
Lawyers for the Magic City Casino and the Bonita Springs Poker Room filed a request with the U.S. Circuit Court of Appeals for the District of Columbia for the case to be heard by the entire circuit. It comes after a three-judge panel from the circuit in late June unanimously overturned a lower court’s November 2021 decision that struck down the gaming compact between the Seminole Tribe and the state of Florida.
Monday was the 45th and final day plaintiffs had to appeal the circuit’s opinion.
The request for a review also likely will keep the tribe from reviving its online Florida Hard Rock sportsbook for the time being. The app had been available for about a month before the tribe shut it down in December 2021 after it was unsuccessful in getting a stay against the initial order.
Daniel Wallach, an expert in gaming law, told FloridaBet.com Monday that the decision to seek a full review will delay the mandate the circuit panel was going to send to the district court.
“Out of an abundance of caution, most litigants would opt to wait for the formal mandate to be issued before proceeding in reliance on the appellate court’s decision,” he said.
Wallach, along with many others, expects the case to ultimately go before the U.S. Supreme Court no matter what the circuit court decides.
While the gaming compact in question would allow the Seminole Tribe to conduct sports betting across Florida, build up to three new casinos, and operate roulette and dice-based table games at its Class III tribal casinos in the state, the final decision in the case could impact tribal gaming in other states as well.
Plaintiffs Say Circuit Ruling ‘Departs’ From Precedent
In the filing Monday, lawyers for the plaintiffs said the three-judge panel erred when it ruled in favor of the U.S. Department of the Interior and Interior Secretary Deb Haaland six weeks ago. Two years ago, the department did not rule within 45 days on the gaming compact Seminole and Florida officials reached. Under the Indian Gaming Regulatory Act, the compact is considered approved to the extent it complies with the 35-year-old law.
“The Opinion departs from this prior case law by holding that a tribe and state may use the IGRA process to obtain Secretarial approval of a compact purportedly authorizing a tribe to conduct gaming statewide, i.e., predominantly off of Indian lands,” the plaintiffs’ attorneys wrote. “It says the Secretary may provide such approval even whereas here—the law of the state prohibits the type of gambling in question if conducted off of Indian lands.”
The plaintiffs filed an “en banc” appeal, meaning they want all 11 active circuit members to hear the case. However, Wallach noted in a piece he wrote for Forbes Monday that for the plaintiffs to win, they would need to have six of the remaining eight judges to side with them, assuming the original judges stick to their opinion. That is “a very daunting task,” he wrote.
A spokesperson for the Seminole Tribe pointed to that fact in a statement to FloridaBet.com Monday afternoon.
“It’s important to note the three Judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous decision in favor of the U.S. Department of the Interior, which approved the Gaming Compact between the Seminole Tribe and the State of Florida,” Gary Bitner said.
In his analysis, Wallach also said that the D.C. Circuit rarely grants such reviews, with the last one happening more than two years ago.
How We Got Here
In a May 2021 special session, Florida lawmakers approved the compact Gov. Ron DeSantis reached with the tribe. The compact, expected to generate $2.5 billion over the first five years of the deal and $6 billion through 2030, required the tribe to partner with at least three state-licensed parimutuel operators in a revenue-sharing arrangement. It also called for the Seminoles to pay the operators 60% of the revenue from bets at their locations.
Magic City and Bonita Springs argued the compact put them at a competitive disadvantage if they were not partners with the Seminole Tribe. In addition, they claimed IGRA cannot be used to authorize gaming off tribal lands. Five years ago, Florida voters overwhelmingly voted for a constitutional amendment requiring casino gaming off tribal lands could only be approved by a ballot measure.
While U.S. District Judge Dabney Friedrich sided with the plaintiffs in November 2021, the appeals court ruled that the Interior Department was within its rights to approve the compact. However, the opinion did not weigh in on whether statewide sports betting or Florida sports betting apps were legal in the Sunshine State.
“That question and any other related questions of state law are outside the scope of the Secretary’s review of the Compact, are outside the scope of our judicial review, and as a prudential matter are best left for Florida’s courts to decide,” U.S. Circuit Judge Robert Wilkins wrote in the June opinion.