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.
Hardin said also, however, that the Commission discussed the belief that it “does have the discretion to accept an application for good cause.” The Cherokees have argued that the Commission could reconsider applications submitted in the first round for good cause. So, conceivably, another path could be created for the first Cherokee application to be considered by the commission without a rule change. But that didn’t happen today.
And there was this significant legal development: 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.