• As expected, the Department of the Interior has submitted a response to West Flagler’s motion for a stay for a Florida gaming compact
• West Flagler has until Oct. 2 to respond to the DOI’s submission.
• If a stay is granted it will halt the D.C. Circuit Court’s mandate that allows the Seminole Tribe to offer sports betting from going into effect 

The battle for Florida online sports betting rages on, as the U.S. Department of the Interior today officially opposed a requested motion for stay of a mandate to restore a 2021 Florida Gaming Compact.

West Flagler, who requested the motion for stay on Sept. 15, now has until Monday, Oct. 2, to respond to the Department of the Interior’s (DOI) official objection.

So what does this mean exactly? It means that Floridians will likely have to wait another week for West Flagler to submit a response and for the U.S. Court of Appeals for the District of Columbia to review the document. A decision on whether or not to grant the stay will likely come soon thereafter.

U.S. Department of Interior Believes Stay Not Warranted

West Flagler requested a stay of the mandate on Friday, Sept. 15, close to midnight, intending to submit a writ of certiorari to hear the case with SCOTUS. West Flagler has until Monday, Dec. 11, to file with SCOTUS.

In its motion, West Flagler attorneys note that unless a stay is granted the court’s mandate will “upset the status quo” in Florida by permitting the Seminole Tribe to offer online sports betting.

In its objection to the motion for a stay, Rachel Heron, an attorney for the U.S. Department of Justice, representing the DOI, wrote that a “stay is not warranted, because any such petition could present no substantial question for Supreme Court review.”

“This Court reached a narrow, case-specific holding about the meaning of particular in one particular Compact under the Indian Gaming Regulator Act (IGRA). Its decision makes explicitly clear that the Compact does not purport to-and as a matter of law, could not-authorize the gaming activities outside Indian land that West Flagler believes are illegal, and that West Flagler’s dispute is instead with the Florida law that does authorize these activities,” Heron noted.

Heron wrote in the objection that the U.S. Court of Appeals for the District of Columbia agreed with West Flagler that Debra Haaland, U.S. Secretary of the Interior, would not have the authority under IGRA to legalize gaming outside Indian lands.

However, she wrote, the court rejected West Flagler’s belief that the compact “purported to do so,” believing instead that the compact simply discusses how the state and Seminole Tribe will regulate bets placed from non-Indian lands within the state’s borders. These are authorized by Florida statute, she noted, and something that West Flagler could challenge in a Florida court.

“The Court’s reading of the compact is a sound application of basic contract interpretation principles, primarily that ‘a contractual provision should, if possible, be interpreted in such a fashion as to render it lawful rather than unlawful.’”

West Flagler now has a week to submit a response to the DOI.

So What Happens Next?

In its stay filing, West Flagler revealed it would be pursuing a writ of certiorari to hear the case with SCOTUS. The plaintiffs have a 90-day window, which began on Sept. 11, to pursue the writ by the Dec. 11 deadline.

West Flagler requested the D.C. Circuit court “stay the mandate for a sufficient period of time to permit Appellees to apply for a stay of the mandate from the Supreme Court.”

The D.C. Circuit Court will take West Flagler’s response into consideration before making its final ruling on the stay.

Daniel Wallach, a gaming law attorney, Founder of Wallach Legal and UNHLaw Sports Wagering, noted in an informative multi-tweet thread on his “X” feed last week that a stay is unlikely to be granted.

The odds are against West Flagler being able to persuade the D.C. Circuit to stay its mandate. To merit a stay, it would have to show that the SCOTUS petition would present a “substantial question” and there is “good cause” for a stay.

That’s a high burden. Here’s why: pic.twitter.com/On0WSqdcY2

— Daniel Wallach (@WALLACHLEGAL) September 16, 2023

If a stay is granted, the Seminole Tribe will likely not launch online sports betting. If a stay is not granted and the official mandate goes into effect, it would likely lead to the tribe launching sports betting soon thereafter.

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