The US Supreme Court denied West Flagler’s request to stay its Florida sports betting case against US Secretary of the Interior Debra Haaland. However, a statement penned by Justice Brett Kavanaugh respecting Wednesday’s denial suggested SCOTUS might rule differently based on equal protection laws.
West Flagler has until Dec. 11 to file a petition for a writ of certiorari, but Kavanaugh’s words also hint that the Supreme Court is unlikely to accept the federal case for review.
In his statement, Kavanaugh confirmed his support for the DC Circuit Court ruling:
I agree that the stay application should be denied in light of the D. C. Circuit’s pronouncement that the compact between Florida and the Seminole Tribe authorizes the Tribe to conduct only on-reservation gaming operations, and not off-reservation gaming operations.
Kavanaugh Affirms Denial But Invites New Fight
West Flagler’s fight with Haaland began in 2021. The casino operators argued that the Secretary erred in permitting the State of Florida to enter into a compact with the Seminole Tribe that included online sports betting.
Specifically, the lawsuit argued that the Indian Gaming Regulatory Act (IGRA) only authorizes gaming on Indian lands. Consequently, it positioned the compact’s “hub and spoke” model, which bases the location of an online bet on the site of the host server, as a legal “fiction” at odds with precedent.
A US District Court judge initially sided with West Flagler, rendering the compact invalid. However, the DC Circuit Court later overturned that decision, ruling Florida state law, not the tribal compact, authorized online sports betting outside Indian territory.
In his statement, Kavanaugh agreed. However, he went on to suggest that it would be a different story if the compact directly authorized outside gaming.
If the compact authorized the Tribe to conduct off-reservation gaming operations, either directly or by deeming off-reservation gaming operations to somehow be on-reservation, then the compact would likely violate the Indian Gaming Regulatory Act, as the District Court explained.
To the extent that a separate Florida statute (as distinct from the compact) authorizes the Seminole Tribe—and only the Seminole Tribe—to conduct certain off-reservation gaming operations in Florida, the state law raises serious equal protection issues.
But the state law’s constitutionality is not squarely presented in this application, and the Florida Supreme Court is in any event currently considering state-law issues related to the Tribe’s potential off-reservation gaming operations.
West Flagler’s state-level lawsuit is primarily about the compact and whether Governor DeSantis had the authority to create it. However, unlike the federal case, it also touches on the “implementing law” that Kavanaugh is referencing.
In effect, Kavanaugh seemed to be suggesting that West Flagler might have more success if it started over. That has led some, including sports betting attorney Daniel Wallach, to speculate that West Flagler might treat this as advice and file a new federal suit.
Lawsuit number 3?
Justice Kavanaugh’s statement could prompt West Flagler to file another lawsuit in federal court challenging the Florida statute granting the Seminole Tribe a sports betting monopoly as a violation of the equal protection clause.
— Daniel Wallach (@WALLACHLEGAL) October 26, 2023
Seminoles Cleared to Relaunch Hard Rock Bet
While it’s true West Flagler has also taken its Florida sports betting challenge to state court, equal protection, at this point, doesn’t play a role.
Currently, West Flagler’s existing case against Governor Ron DeSantis argues that to expand gambling, the state requires 60% approval via referendum. Circumventing the vote, the plaintiffs assert, violates the state constitution.
In its initial federal suit, West Flagler notably argued that Haaland’s compact approval violated the Fifth Amendment’s equal protection guarantee. However, the Circuit Court ruled the equal protection challenge “failed as a matter of law” in its decision overturning the District Court ruling.
Still, West Flagler could mount another challenge based on Kavanaugh’s prompt.
In the meantime, the Seminoles can legally relaunch Florida sports betting at any time. But, as yet, if and when they’ll welcome players back to Hard Rock Bet is unclear.