Department of the Interior Responds to West Flagler Over Florida Sports Betting Case

• The Department of the Interior responded to West Flagler’s request for an en banc hearing 
• The D.C. Circuit Court ordered the Seminole Tribe provide a response to West Flagler Associates en banc hearing request by today
• Feds believes there is no matter of “exceptional importance” to grant an en banc hearing

The fight for Florida sports betting and online gaming marches on as the Department of the Interior submitted a response to West Flagler’s request for an en banc hearing of the U.S. Court of Appeals for the District of Columbia’s decision to restore a 2021 Florida gaming compact.

The D.C. Circuit Court ordered a response two weeks ago, a rare request when en banc hearings are being considered, and gave them a deadline of today to submit.

The tribe submitted its 25-page response around 4 p.m. and contends there are no matters of “exceptional importance” within the court’s ruling that would necessitate an en banc hearing.

En Banc Hearings Only Granted in Rare Circumstances

The Department’s response contends that en banc hearings are only granted “in the rarest of circumstances” and the reasons purported by West Flagler do not warrant a rehearing.

“The panel correctly held that the Secretary had no duty to disapprove the Compact for the straightforward and fact-specific reason that the Compact can—and therefore must—be read in a way that is consistent with IGRA. That narrow and reasonable reading—which has been endorsed by both parties to the Compact and by the Secretary belies any suggestion that the Compact blesses the off-Indian land wagering that West Flagler believes violates the Florida constitution, and leaves fully intact West Flagler’s ability to challenge the Florida statue authorizing those wagers,” the response reads.

Both questions of “exceptional importance” raised by West Flagler are based on a contrary reading of the gaming compact that the original three-judge panel rejected, the Department  wrote in its response.

“West Flagler’s arguments for rehearing are strawmen, premised on its erroneous assertion that, by referencing the state-sanctioned wagers, the compact—and the secretary’s approval thereof— purport to unilaterally legalize the placement of those wagers and the State regime for regulating them. But, as West Flagler acknowledges, the panel held in no uncertain terms that the Compact does not do that. And the panel did so while making scrupulously clear that neither its opinion nor the Secretary’s approval prevents West Flagler from challenging the relevant State law in Florida’s courts. Rehearing is unwarranted,” the Department noted.

So What Happens Now?

All eyes now turn to the U.S. Court of Appeals for the District of Columbia and if the court will actually grant an en banc hearing of the case. The court has not granted an en banc rehearing since 2021.

There is no particular timetable for the court to respond to the hearing. It’s very unlikely that a response will happen before the start of the NFL season next week, so a Florida sports betting launch likely will not be possible by then. A spokesperson for the court previously told Sports Betting Dime that determinations for en banc hearings can sometimes takes “months” to be made.

However, it’s unlikely that a decision on this en banc hearing is will take that long.

It’s also important to not that there is no official injunction or mandate restricting the Seminole Tribe from currently offering online sports betting in the state, but is unlikely to do so until the en banc hearing matter is concluded. Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, previously told Sports Betting Dime the tribe would not want to  potentially raise the ire of the court by launching sports betting if an en banc hearing is still being considered, he said.

To be granted an en banc hearing, six of the 11 district judges have to approve the request. Considering that three judges have already ruled against West Flagler and would likely not approve the request, six of the remaining eight judges would have to agree to a rehearing.

If accepted, all 11 judges of the D.C. Circuit Court would hear the argument from West Flagler that a 2021 Florida Gaming Compact violated the Indian Gaming Regulatory Act (IGRA). West Flagler has contended throughout the process that the gaming compact violates IGRA and incorrectly allows the Seminole Tribe to host online gaming, such as sports betting, off tribal lands.

In West Flagler’s petition, counsel for the plaintiff’s wrote that the Supreme Court’s ruling of Michigan v. Bay Mills Indian Community found the Indian Gaming Regulatory Act (IGRA) regulates gaming on “Indian lands, and nowhere else.”

“The Opinion is erroneous and will create confusion, and thus rehearing is warranted. The Opinion relies on an interpretation of an IGRA provision itemizing the ancillary subject matters that are permissible in an IGRA compact. As shown by both the plain text of this provision and the overall legislative purpose of IGRA, this provision cannot reasonably be read to allow IGRA compacts to contain provisions that on their face seek to authorize gaming activities off of Indian lands,” counsel wrote in the document.

In late June, a three-judge panel for the U.S. Court of Appeals for the the District of Columbia unanimously agreed to overturn a ruling from U.S. District Court Judge Dabney L. Friedrich that declared a 2021 Florida gaming compact violated the Indian Gaming Regulatory Act (IGRA).

The gaming compact was thrown out by Friedrich in November 2021. Ultimately, Friedrich determined the compact violated the conditions set forth by IGRA that limits tribal gaming to the confines of tribal lands. The Seminole Tribe argued in the gaming compact that because the servers that processed the online sports bets were located on tribal land, then the bets themselves were placed on tribal lands.