On Oct. 18, the U.S. Department of the Interior (DOI) submitted a response to the U.S. Supreme Court opposing Plaintiff West Flagler’s request to stay the enforcement of a mandate in the ongoing Florida sports betting case. The mandate would allow the Seminole Tribe to act as the sole operator of all online sports betting activities in Florida.
West Flagler’s Request For a Stay
West Flagler’s request comes in response to a June 30th ruling by the DC Circuit Court of Appeals that determined the Seminole Tribe was eligible to operate online sportsbooks in Florida via their compact with the DOI as outlined in the Indian Gaming Regulatory Act (IGRA).
In essence, this is a request for the Supreme Court to stop the DC Circuit Court’s ruling from being carried out.
On Oct. 12, John Roberts — Chief Justice of the U.S. Supreme Court — issued a temporary stay of the mandate to review West Flagler’s application.
This temporary stay gives West Flagler time to make an appeal to the Supreme Court via a petition for a writ of certiorari.
In West Flagler’s application, their main points argued that the compact violated IGRA, the Unlawful Internet Gambling Enforcement Act (UIGEA), and the Equal Protection Clause.
Requirements for Stay of Mandate to Be Granted
On Wednesday, the Department of Interior filed a response arguing West Flagler “failed to satisfy” the requirements for a stay of the mandate in this case therefore further stay of the mandate was unwarranted.
Per the filing by the DOI, the requirements they’re referring to are:
- “A reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari.”
- “A fair prospect that a majority of the Court will vote to reverse the judgment” made by the DC Circuit Court.
- “A likelihood that irreparable harm will result from the denial of the stay.”
DOI Response: West Flagler’s Claims ‘Lacks Merit’
U.S. Solicitor General Elizabeth Proctor penned the response to the application on behalf of the DOI. She responds to West Flagler’s claims of violating IGRA, UIGEA, and the Equal Protection Clause.
“Each of those contentions lacks merit, and none presents a conflict with any decision of this Court or another court of appeals. The Court therefore is not reasonably likely to grant certiorari, and there is no fair prospect that the Court would reverse the court of appeals’ judgment if it did grant review,” she wrote.
In response to the IGRA claim, she references Michigan vs. Bay Mills where it was established that “states have ‘capacious’ authority to regulate ‘tribal gaming outside Indian territory.’” She argues that if a state can authorize off-reservation gaming, it can also authorize the portion of the tribe’s gaming activities that happen off tribal lands where the balance of the activities occurs on tribal land.
“The gaming activities on Indian lands, of course, must be separately authorized under IGRA. But there is no apparent reason why a tribal-state compact that authorizes gaming activities on 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,” she wrote.
She also claims that the compact is consistent with UIGEA. While UIGEA prohibits knowingly accepting certain payment methods in connection with unlawful internet gambling, “the Compact itself does not violate UIGEA because it does not address payment methods that might violate UIGEA.”
The Equal Protection Clause claim was the last main point addressed in the filing:
“In any event, the Compact in this case is an agreement between two sovereigns — the State of Florida and the Seminole Tribe.” Proctor wrote. “That agreement between sovereigns does not implicate race-based equal-protection concerns. A sovereign government has no race. And so long as an agreement between sovereigns does not contain provisions based on racial classifications of individuals, an equal-protection challenge to the agreement is properly analyzed under rational-basis review.”
Possible Outcomes, Timeline, Expert Analysis
The Supreme Court will now review both West Flagler’s application and the DOI’s response, then decide whether to grant the mandate’s stay. They can make this decision at any time.
“We are probably a few orders and rulings away from finality,” said legal expert Daniel Wallach via Spaces on X.
If the Supreme Court grants the stay, “there is going to be a stay in place for the duration of all U.S. Supreme Court proceedings around the petition for writ of certiorari which could mean that even if the petition ultimately gets denied, we’re looking at second quarter of 2024. If [the petition is] granted and there’s an oral argument and further briefing, we could be looking at 2025.”
If they choose not to grant the writ, the mandate will go back into effect, effectively re-validating the gaming compact. “That could potentially pave the way for the return of online sports betting immediately,” Wallach noted.
Or, the Supreme Court could not grant the stay of the mandate at which point the gaming compact would also be reinstated.
“I’m on record in believing that West Flagler has made a sufficient showing for a stay,” Wallach said.
Interior doesn’t address any of the IGRA case law authority cited by West Flagler in its application for a stay. Only a cursory mention in a footnote. pic.twitter.com/vSF2uwI3mq
— Daniel Wallach (@WALLACHLEGAL) October 18, 2023
Additional Filings in Florida State Court Affect Supreme Court Case
In addition to the federal filings, West Flagler also filed a petition for writ of quo warranto seeking to challenge the state’s mobile sports betting law under Amendment 3. They were backed by fellow anti-gambling organization No Casinos Inc. earlier this week.
On Thursday, Gov. Ron DeSantis filed for a 30-day extension of time to respond to West Flagler’s writ of quo warranto. If granted, this would push the response date from Nov. 1 to Dec. 1. This would make a significant difference, as West Flagler is required to submit its petition for writ of certiorari with the Supreme Court by Nov. 20, which they would have to do without a state court response to potentially strengthen its argument with.
The game within the game:
Delay the filing of the state court response until after West Flagler has filed its petition for writ of certiorari with #SCOTUS, depriving it of the ability to highlight inconsistencies. https://t.co/qMoT7u9JRq
— Daniel Wallach (@WALLACHLEGAL) October 19, 2023
West Flagler immediately filed to oppose the proposed extension.