The US Department of the Interior (DOI) has submitted its response to the US Supreme Court (SCOTUS) regarding West Flagler’s request for a stay in its ongoing Florida sports betting case against the Secretary of the Interior, Debra Haaland.
West Flager is seeking to press pause on the ramifications of the DC Circuit Court of Appeals’ decision in Haaland’s favor, which will allow sports betting to resume in Florida. The tribal gaming compact at issue in the case would make the Seminole Tribe of Florida the state’s sole online sports betting operator. The Seminoles had hoped to relaunch their Hard Rock Bet sportsbook in early October, but West Flagler’s request, if granted, would likely push that back into 2024.
Although the Supreme Court granted West Flagler a temporary stay last week, the brief filed by Solicitor General Elizabeth Prelogar on Oct. 18 argues the court should deny the request.
The Solicitor General, on behalf of the Secretary of the Interior and the Department of the Interior, respectfully submits this response to the application to stay the court of appeals’ mandate pending the filing and disposition of a petition for a writ of certiorari.
The application should be denied.
DOI Response Shares Dual Focus
Upon review, the crux of the DOI’s response centers around two main points.
First, the brief argues that the Supreme Court is unlikely to grant a writ of certiorari.
This court would not likely grant certiorari, or reverse the court of appeals on any of the three questions that applicants present.
The brief notes a trio of reasons West Flagler’s petition would not succeed in the Upper court:
- Compact is consistent with IGRA (Indian Gaming Regulatory Act)
- Compact is consistent with UIGEA (Unlawful Internet Gaming Enforcement Act)
- The Secretary’s Approval Of The Compact Is Consistent With Equal-Protection Principles
The DOI’s second argument detailed how West Flagler failed to demonstrate irreparable harm or “equities warranting relief from this court.”
Additionally, they argue that West Flagler’s two-year delay in bringing action the case to state court “undermines their claim to the equitable relief of a stay.”
The DOI’s response to West Flafler’s request relied heavily on the opinions of the circuit court. Particularly, it says that under IGRA, compacts may include details beyond what happens on Indian land.
IGRA “generally does not restrict or regulate tribal, or any other, activity outside of Indian lands. Instead, “IGRA ‘left fully intact’ states’ ‘capacious’ regulatory power outside Indian territory.
And:
There is no apparent reason why a Tribal-State compact that authorizes gaming activities on 16 Indian lands under IGRA cannot also include provisions that concern the State’s (independent and non-IGRA) authorization to conduct directly related gaming activities in the State on non-Indian lands, even though IGRA and the Tribal-State compact would not independently authorize those related activities.
Question Belongs in State Court
The DOI also aimed at West Flagler’s argument that funding accounts would necessarily violate UIGEA. That expectation, the department argued, ignored the possibility that deposits may happen in person, on tribal territory.
From the submitted arguments:
Applicants fail to address the Compact’s own text which, although it does not specifically address payment methods, requires the Tribe to comply with all “applicable federal laws with respect to the conduct of Sports Betting.
The DOI also argued that West Flagler’s belief that the court would grant certiorari because the compact “constitutes a racial preference” under “equal protection principles” lacks merit.
Specifically, the brief noted: “A sovereign government has no race.”
Finally, the DOI notes that the applicants took a different view of the DC Circuit’s decision in their Florida Supreme Court filing.
In that case, West Flagler is seeking a declaration that sports-betting wagers placed off Indian lands are inconsistent with the State’s constitution.
Applicants argued that the DC Circuit held the “Compact did not and could not authorize off-Indian lands gaming under IGRA.”
Additionally, West Flagler argued that the lawfulness of placing wagers from outside Indian lands is unaffected by its inclusion as a topic in the Compact.
Finally, West Flagler argued that the lawfulness of such gaming activities within Florida on non-Indian lands is simply a “matter of state law.”
This position, argued the DOI, is correct.
If the Florida Supreme Court concludes that the Florida Legislature’s authorization of the placement of wagers outside Indian lands is not permissible under the Florida Constitution, that would afford applicants the relief they seek. That pending case provides the appropriate forum to resolve applicants’ claims based on the meaning of state law.
Applicants’ contentions under the Florida Constitution, if adopted, would have the effect of declaring a Florida statute invalid under the state constitution. Both federal courts in this case have appropriately declined applicants’ invitation to resolve that state-law question, which “as a prudential matter [is] best left for Florida’s courts to decide.
With that, it’s up to the Supreme Court whether or not it will extend the stay of the lower court mandate until West Flagler files its writ.
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