News on the Pope County casino front today: A Pulaski County judge has set a surprise hearing on one lawsuit and the Racing Commission has acceded to another judge’s ruling in a separate case that delayed consideration of permit applications.
The Arkansas Racing Commission today accepted Circuit Judge Wendell Griffen’s ruling that commission rules didn’t allow a second round of applications for a casino permit in Pope County.
Griffen had temporarily enjoined the Commission from awarding a permit based on applications in the second round. He said the rules allowed the second round of applications only if there were no applications in the first round. There were five, but all were rejected.
In the second round, both the Cherokee Nation and the Choctaw Nation applied. Only the Cherokee application was accompanied by an endorsement from the Pope County Quorum Court, necessary under Racing Commission rules.
Today’s commission meeting was brief, I’m told in a recap by spokesman Scott Hardin. He said the Commission voted to formally abandon the second application period, which opened in August and closed in November.
The state will refund the $250,000 application fees. It will notify the judge of the abandonment of the application period. Otherwise, the lawsuit from casino opponents that led to his order would have to be set for a hearing on a permanent injunction.
The Commission took no action on a new application period or to adopt rules to allow for a second application period. The judge had said a rule change would have to follow the administrative procedures act, with public notice.
However, and this is key, the Commission discussed the belief that it “does have the discretion to accept an application for good cause.” This would apply to any application submitted, including a new one.
The Cherokees had argued that the Commission rules provided that it could consider applications submitted after the first round closed in “or good cause.” That creates a new path for the first Cherokee application to be considered again, or resubmitted,without a time-consuming rule change.
The Cherokees seem happy with events. Said Chuck Garrett, CEO of Cherokee Nation Businesses:
We thank Chairman Lieblong for his leadership and for calling today’s meeting of the Arkansas State Racing Commission to hear from the Attorney General’s office. We agree with the legal analysis provided by the AG’s office and support the Commission’s decision to abandon the 90-day application period. As the only qualified applicant for Pope County having received the required support of County officials in August pursuant to Amendment 100, we are eager to submit a new application and demonstrate that good cause exists for the Commission to accept our application and grant us the license.”
Of course, there is another potential casino operator that has a counter argument on who’s qualified to apply And there was this significant legal development on that front:
The Commission was told a hearing has been scheduled in late March on a separate lawsuit by the Gulfside Casino Corporation. This is a Mississippi concern that contends it had a valid application for a permit in the first round because it had the endorsement of the Pope County judge in 2018. A new judge took office in 2019 and he worked on the Cherokee proposal that provides $38 million to local governments and nonprofits.
The Racing Commission previously had been reluctant to move ahead with a permit decision as long as the Gulfside challenge was pending. Gulfside said a rule adopted by the Commission and enacted by the legislature was unconstitutional. It says a casino application must be accompanied by the approval of current local officials. This added a restriction not present in the constitutional amendment approved by voters in 2018 that authorized casino permits in Jefferson and Pope counties, Gulfside contends.
The March hearing on the Gulfside case is something of a surprise. On Thursday, Circuit Judge Tim Fox set the hearing at 9 a.m. March 30. Previously, Fox had tried unsuccessfully to send the case to Pope County. When it was sent back, he indicated it might be a year before he could clear his docket to hear the case. Gulfside failed recently in a motion to the Arkansas Supreme Court to force him to act sooner.
As it stands, the hearing will involve Gulfside and the state. The Cherokee Nation has appealed Fox’s denial of its motion to intervene in the case.
The Commission meets again Jan. 25. I expect more legal paperwork to come. I’d also expect the Cherokee Nation to file a new application soon “for good cause.” Gulfside might as well. And perhaps others. If Gulfside prevails in its view that past and present endorsements from local officials qualify an application for consideration, all who can produce such will want a seat at the table. For another day that could bring the city of Russellville, and some disagreements there with the county and the choice of the Cherokees, back into the mix. They’ve been seen as having some alignments with the Choctaws.