Arguing that the 2021 compact between the Seminole Tribe and the state of Florida is “consistent” with the Indian Gaming Regulatory Act (IGRA) and the Unlawful Internet Gaming Enforcement Act (UIGEA), the U.S. Department of the Interior (DOI) Wednesday filed its response to the U.S. Supreme Court in its case involving a pair of Florida parimutuels.

The 30-page response is to West Flagler and Associates’ (WFA) request for the Supreme Court to stay the mandate in place that would keep the Seminoles from launching their Hard Rock Bet platform in Florida. The DOI filed about two hours ahead of the 5 p.m. ET deadline.

From here, both sides will wait for a ruling on whether the mandate will stay in place. West Flagler has also filed a case against Gov. Ron DeSantis in the Florida Supreme Court, and all indicators are that the Seminoles will wait for both cases to play out before attempting to launch and risk having to take the platform down. In the case in Florida, DeSantis must reply to the initial filing by Nov. 1.

DOI: West Flagler failed to make its case

In its Supreme Court response, DOI lawyers wrote that West Flagler must show “a reasonable probability that four Justices will consider the issue(s) sufficiently meritorious to grant certiorari,” that a majority of justices would vote to reverse a lower-court ruling, and that by not granting the request West Flagler would “suffer irreparable harm.” The DOI argues that West Flagler does not “satisfy any of those requirements.”

WFA filed for a stay with the Supreme Court Oct. 6, shortly after the U.S. District Court of Appeals for the District of Columbia Circuit denied a request to stay its mandate, which at the time made it legal for the Seminoles to launch. The tribe did not do so, and eight days later, WFA asked the Supreme Court to step in. On Oct. 12, Justice John Roberts issued an order that prevents the Seminoles from launching and required the DOI to respond by Oct. 18. From here, the court will determine whether to stay the mandate as WFA prepares to file its case by Nov. 20.

Not so fast, Florida!
A motion added to the court docket after 10 pm Friday may prevent Hard Rock Bet from relaunching next week. Jill R. Dorson has the details on where the case goes from here and what the Seminole Tribe's options are:https://t.co/FGx9IZ5ix1

— Sports Handle (@sports_handle) September 16, 2023

In Wednesday’s filing, DOI lawyers say that the 2021 compact, which would give the Seminoles a monopoly on sports wagering and would count any bet placed anywhere in the state as being placed on Indian lands after it flows through a tribal server, is “consistent” with IGRA.

The DOI wrote, “The court of appeals repeatedly emphasized that the Compact that was deemed approved … ‘authorizes only the tribe’s activity on its own lands’ and that the lawfulness of any other related activity such as the placing of wagers from outside Indian lands … is unaffected by its inclusion as a topic in the Compact.'”

In essence, the DOI is arguing that Haaland was within her rights to approve the compact, but that she and the lower court did not approve the contents of the compact.

DOI: WFA’s issues belong in state court

The DOI goes on to argue that WFA cannot prove that the compact is unlawful under UIGEA because it does not consider the option for the Seminoles to require that wagering accounts be funded with cash or whether “other payment options would be lawful under UIGEA.”

Finally, the DOI takes issue with WFA’s argument that allowing a Seminole monopoly will cause “irreparable harm” to the parimutuel. The DOI wrote that WFA has not proved such harm would come to its business or the “citizenry of Florida” and further that WFA’s argument is not only “insufficient,” but that the current case is not the correct venue in which to seek such relief.

On balance, the DOI is making the same arguments it made at both the district and appeals court levels, with the hope that the Supreme Court will uphold the appellate court decision and find in its favor. At every juncture, the DOI has argued that West Flagler’s key issues — that the contents of the compact violate state law — are state, not federal issues.

‘No Casinos’ files amicus brief

No Casinos, the group that got Amendment 3 passed in Florida in 2018, filed an amicus curaie brief with the Florida Supreme Court Monday in the West Flagler case against Gov. DeSantis. In the brief, the group, to which Disney is a big contributor, says DeSantis and the legislature violated the “spirit and public policy” behind Amendment 3, which requires that any expansion of gaming be sent to the voters.

Florida non-profit wades into sports betting case as row deepenshttps://t.co/1QDD4Nw3nm

— EGR North America (@eGRNorthAmerica) October 17, 2023

Under the 2021 compact, the Seminoles would have a monopoly on retail and digital sports betting and any bet placed anywhere in Florida would flow through a server on Indian land, and therefore be considered to have been placed on Indian lands. The compact and the federal law governing gaming both lay out guidelines only for gaming on tribal land, and No Casinos said the setup in the compact was “disrespectful” to the citizens of Florida and the state constitution.

West Flagler filed its case with the Florida Supreme Court on Sept. 26, and the court has ordered DeSantis et al to respond by Nov. 1. At that point, the court will consider whether it will take the case, reject the case, or send it to a lower court for consideration.