TRIBAL GAMING IN FLORIDA
2021. 187 The court asked the government to assert a position on whether the mobile wagering took place “on Indian lands” at least ten times. 188 The court finally expressed exasperation that, after nearly four months of litigation, the government could not articulate a yes-or-no position on the Indian lands question. 189 Recognizing that further attempts to ascertain the government’s position were likely futile, the court granted the government four days to address the merits of the case. 190 However, despite the court’s incessant questioning in search of an answer to the “on Indian lands” issue, in the amended motion the government argued the 2021 Compact legalized the mobile wagering placed by patrons on tribal land, while state law authorized the placement of wagers on nontribal land within the state. 191 In doing so, the government conceded the plaintiffs’ main point: the mobile wagers authorized under the 2021 Compact took place off Indian lands. The government completely abandoned the hub-and-spoke model and compact provisions that deemed wagers took place at the servers’ location. The government failed to adequately defend the tribe’s interests by offering no arguments that the mobile wagers did in fact take place “on Indian lands” as required by IGRA. 2. The absence of a Chevron Deference Argument In briefs and during the hearing, the government failed to argue that the Interior Department’s interpretation of “on Indian lands” was entitled to administrative deference. In
Chevron v. Natural Resources Defense Council , the Supreme Court articulated a two- part standard that dictated when a court should defer to an agency’s interpretation of a statute. 192 Under Chevron , an administrative agency’s interpretation of an ambiguous statute is entitled to deference as long as that interpretation is reasonable. 193 Chevron deference first requires a court to determine if Congress spoke on the specific issue. 194 If the statute is unclear or otherwise ambiguous, Chevron deference then requires the court to asses if the agency’s interpretation of that statute was reasonable. 195 While a Chevron deference argument may still have proved unsuccessful, the government made a substantial error by failing to offer the argument at all. 196 The government should have argued that the Interior Secretary’s decision authorizing the 2021 Compact was entitled to deference by the court. As previously discussed, the Interior Department’s briefs did not make any arguments about the merits of the case. Given Chevron deference’s friendliness to administrative agencies, arguing that the “on Indian lands” requirement under IGRA is ambiguous and that the Secretary’s interpretation was reasonable would likely have been the strongest merits argument. However, the government’s filings did not mention the Chevron case once. 197 In the oral hearing, the court directly asked if the agency’s position was entitled to deference under Chevron and did not receive a direct answer. 198 Despite the court’s conspicuous reference to this potential argument, the government’s amended brief still did not mention Chevron deference. 199 In stark contrast, the parimutuel operators made conclusory
187 Id . at 8. 188 Id . 189 Id . at 56. 190 Id . 191 Defendant’s Amended Response to Motion for Summary Judgment, West Flagler . 192 Chevron v. Nat’l Resources Defense Council, 467 US 837 (1984).
193 Id . 194 Id . 195 Id .
196 I do not intend for this section to suggest that a Chevron deference argument would have necessarily resulted in a different outcome in the case. Instead, I merely point to the government’s failure to assert a Chevron argument as a significant error, particularly given the District Court’s indication that it would entertain such an argument. The viability of Chevron deference is often the subject of legal discussion, debate, and criti- cism. See Michael Herz, Chevron is Dead; Long Live Chevron, 115 COLUM. L. REV. 1867 (2015). However, despite claims of Chevron’s “demise,” it has persisted as a key feature of administrative law. Id. A statistical analysis of circuit court decisions shows that agency decisions fare significantly better under Chevron deference than other standards of review. Kent Barnett, et. al, Chevron Patterns in the Circuit Courts, 43-SUM ADMIN. & REG. L. NEWS 4 (2018). However, the analysis also suggests that courts may avoid engaging in Chevron deference review to achieve more favor - able ideological outcomes. Id. A separate analysis of Supreme Court decisions during the Roberts Court shows similar ideological tendencies. Jack M. Beermann, Chevron at the Roberts Court: Still Failing after All These Years, 83 FORDHAM L. REV. 731 (2014). Given these considerations, the
success of Chevron deference argument in the West Flagler case is difficult to predict. 197 Defendant’s Motion to Dismiss and Response in Opposition, West Flagler . 198 Hearing Transcript, supra note 147 at 47. 199 Defendant’s Amended Response to Motion for Summary Judgment, West Flagler .
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IMGL MAGAZINE | APRIL 2023
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