Jesse Scheckner
President Joe Biden’s administration is asking the U.S. Supreme Court to reject a legal challenge to Florida’s multibillion-dollar deal with the Seminole Tribe that allows sports betting, citing “flawed” arguments by the plaintiffs and the state’s “capacious” regulatory powers.
Department of Justice attorneys filed a motion on behalf of the U.S. Department of the Interior, which allowed the Gaming Compact to go into effect, to deny a hearing request from a pair of Florida companies suing to kill the agreement.
In the motion, Solicitor General Elizabeth Prelogar and Department of the Interior lawyers contended that lower courts rightly rebuffed challenges from the companies, which were “incorrect” on multiple counts, including an argument that the deal violates the Fifth Amendment’s equal protection clause.
The 31-page motion said the plaintiffs wrongly argued that the Compact violates the Indian Gaming Regulatory Act of 1988 (IGRA) by allowing gaming operations on non-Indian land, since all sports bets are received and processed on servers located on Seminole land.
The brief also said the companies — the owners of Magic City Casino in Miami and Bonita Springs Poker Room in Southwest Florida — “misread the court of appeals decision.” That decision, Prelogar wrote, confirmed the compact’s exclusive coverage of on-reservation gaming operations, leaving the state’s “capacious regulatory power outside Indian territory” as outlined in the 2014 U.S. Supreme Court ruling, Michigan v. Bay Mills Indian Community, fully intact.
Prelogar argued further that the appeals court correctly rejected the companies’ claim that the compact violates the Unlawful Internet Gambling Act of 2006 (UIGEA), which in part concerns payment methods because it neither expressly addresses specific payment methods nor precludes in-person cash funding of a sports-betting account.
She also said the companies’ assertion that the compact “grants a statewide monopoly of off-reservation online sports betting to one particular Indian Tribe,” which would violate Fifth Amendment equal protection rights, is based on two “flawed premises.”
The first is that the compact authorizes gaming on non-Indian land, which an appeals court already held as incorrect. The second is that the sports betting component of the compact does not relate to Indian land, tribal status, self-government or culture — contention the compact itself disproves “because it approves activity only on Indian lands.”
“In any event, the compact in the case is an agreement between two sovereigns — the State of Florida and the Seminole Tribe — concerning the Tribe’s own conduct of commercial gaming operations within the state,” the motion said.
“The government has previously explained in this Court why such an agreement between sovereigns does not implicate race-based equal protection concerns requiring strict scrutiny … but the salient point for present purposes is that (the) petitioners provide no sound basis for this Court to grant review on that equal-protection question in this case.”
The Saturday motion, first flagged by Gary Fineout of POLITICO, may herald the end of a yearslong effort to scuttle the compact. State economists estimate the real will deliver $4.4 billion to Florida’s general fund over the next six years and $20 billion over three decades.
Secretary Deb Haaland of the Interior Department, which oversees tribal gaming, permitted the deal to go into effect on Aug. 11, 2021. Five days later, the two casino owners — West Flagler Associates and Bonita-Fort Myers Corp. — sued to stop it.
In February, as the future of their state case appeared increasingly dire, the companies asked the U.S. Supreme Court to intervene and block the Seminole Gaming Compact, which Gov. Ron DeSantis negotiated and signed in April 2021.
Just one month later, the Florida Supreme Court threw out the case on the grounds that the plaintiffs did not use the “proper vehicle” to file the complaint with the state.
A lower court in November 2021 initially struck down the sports betting portion of the compact, which allowed the Tribe to offer betting on its online app even if customers weren’t on Seminole lands as federal law requires. But an appellate court overturned the ruling, and the Tribe started offering sports betting again in Florida in November.
West Flagler Associates and Bonita-Fort Myers Corp. appealed the decision directly with the Florida Supreme Court thereafter, alleging that DeSantis overstepped his authority in signing the deal, which they said would hurt their revenues.
They argued, among other things, that the Gaming Compact violated a 2018 constitutional amendment requiring voter approval of expanded casino-style gaming. Lawyers for the state countered that sports betting isn’t “casino gaming” as defined in the Florida Constitution.
The U.S. Supreme Court is still considering whether to take up an appeal.
Under the Compact DeSantis signed in April 2021, wagers on sports betting apps made by people located within Florida are considered to have taken place exclusively where the bets are received — through servers located on Seminole Tribe land. Florida lawmakers amended state law in July 2021 to codify that standard.
DeSantis last month signed legislation allocating hundreds of millions of dollars from the compact for land acquisition, waterway protections and wildlife preservation. The measure (SB 1638), which received unanimous approval this past Session, provides that 96% of revenues from the compact will go to environmental programs.
Department of Environmental Protection Secretary Shawn Hamilton called it “a game changer” for preservation and restoration.
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Gray Rohrer contributed to this report.
