When it meets Jan. 6, the Arkansas Racing Commission will consider whether to issue a license for a casino in Pope County that day or delay that decision further, commission attorney Byron Freeland said at the commission's meeting on Thursday.
Freeland told the commission that the 90-day period for its second window for accepting applications for the license in Pope County ended Nov. 18. Cherokee Nation Businesses and Choctaw Nation each submitted applications in the second go-round.
Under its rules, the commission "shall issue a casino license gaming license within 30 business days of the close of the application period," Freeland said.
"In this case, the 30 business days would be Jan. 6, and the Racing Commission is announcing today that it will hold a meeting on Jan. 6," Freeland said. That meeting starts at 9 a.m.
The commission will discuss whether to issue the license or waive a commission rule, he said.
"There is some legal controversy about the powers of the commission to waive rules, so there are a couple of decisions that could be made that day," he said.
Commission Chairman Alex Lieblong of Conway said, "I think everybody on the commission here ... wanted to let the courts take action and, so far, the courts have not taken any action for whatever reason, and that's beyond me and my business.
"Hopefully, maybe this will spur support to make a decision between now and Jan. 6," he said. "But we were advised legally the clock was ticking, and it ended on the sixth."
Amendment 100 to the Arkansas Constitution, approved by voters in November 2018, allows a casino each in Pope and Jefferson counties and the expansion of gambling operations at the racetracks in Hot Springs and West Memphis. The amendment requires the new casinos to have endorsements by county officials, as well as city officials, if it will be situated in a city.
In June, the commission granted a license to the Quapaw Nation to build a casino in Pine Bluff.
Freeland told the commission there are two pending court cases over the licensing of a casino in Pope County.
One case is Gulfside Casino Partnership of Mississippi's lawsuit against the commission filed Aug. 15 in Pulaski County Circuit Court, the same day the commission denied its appeal. In June, the commission rejected applications from Gulfside and other four applicants because none contained endorsements from current officials. Gulfside claims that its application met the constitutional requirements because, unlike the others, it included letters of endorsement from local officials issued right before those officials left office in December 2018.
Pulaski County Circuit Judge Tim Fox told Gulfside officials on Nov. 25 that they could either stand in line behind 650 pending cases older than Gulfside's appeal or transfer the case back to Pope County for a faster resolution. Gulfside then asked for a one-hour hearing, saying the company could not ethically follow his ruling to return the case to Pope County.
The other pending case is the anti-casino group Citizens for a Better Pope County's appeal to the state Supreme Court of a circuit judge's ruling to declare unconstitutional an initiated Pope County ordinance that requires voter approval before a casino license can be endorsed by local elected officials.
In an Oct. 29 ruling, Circuit Judge Bill Pearson dismissed the case filed against the county judge of Pope County, Ben Cross, and members of the Quorum Court.
Casey Castleberry, an attorney representing Gulfside Casino Partnership, told the commission Thursday, "It is our position that both the first application process and the second application process are ongoing and, for those reasons, we would ask that the commission hold off" on issuing a casino license.
On Oct. 17, the commission unanimously voted to wait until lower court rulings were issued in the two lawsuits.
"We still think that is the proper course of action, because that is part of the application process contemplated not only by your rules, but by the [state Administrative Procedures Act]," he said.
"I understand there may be interests that want this to be pushed forward and want this to get going, and I understand that," Castleberry said.
"But this commission issuing a license doesn't change the lawsuit," he said, referring to Gulfside's lawsuit.
"We can still have a pending action and, if a judge were to rule that we're correct in the allegations that we've made in that action, it would have the effect of invalidating any license that this commission may issue, so I don't think issuing a license makes anything go any faster, because there is another license that is still going to be in limbo until the litigation has run its course," Castleberry said.
Scott Richardson, an attorney representing Cherokee Nation Businesses, said that enterprise is the sole qualified applicant in Pope County with endorsements from elected officials, after the second round of casino applications.
"We stand ready and prepared to appear before you on [Jan. 6]," he told the commission. "If you allow it to go past that date, then you run the risk of some other actions, where having not met those deadlines, and we end up in a legal limbo, and we don't meet that deadline, then where does the license stand?
"The best course is to have the meeting on the 6th and decide up or down on the license," Richardson said.
"With the posture of the court, it's unusual. We're also for trying to get to a resolution more quickly," he said, referring to Gulfside's lawsuit in Pulaski County Circuit Court. "But the judge is the judge, and it is hard to tell a judge when he can rule and when he can't."
Freeland said there are legitimate arguments made by good and competent legal counsel for Gulfside Casino Partnership and Cherokee Nation Businesses, "so we will have to make a decision on the 6th" about whether to award a casino license in Pope County.
Richardson said, "There are other actions that, should Cherokee Nation Businesses be awarded the license on the 6th, that we would need to engage in, short of turning shovels.
"Having a license in hand would help us move forward, so when the time came to turn shovels we would be ready for that," he said.
Lieblong said, "It is quite the quagmire, but it is what it is, and we'll figure it out.
"Maybe we could get some help from the judicial system and maybe put that on your Santa Claus list," he said.
Last month, Cherokee Nation Businesses submitted an amended application to build and operate a casino at one of two sites in Pope County. In addition to the Hob Nob Road site outside Russellville, the amended application includes a site inside the Dover city limits.
Asked where the casino would sit, Chuck Garrett, chief executive officer for Cherokee Nation Businesses, said Thursday in a written statement that as "the only operator to fully meet the qualification requirements pursuant to Amendment 100, we remain highly optimistic as we wait for the license to be issued.
"We greatly appreciate local officials in Pope County for their continued support, as well as the cities of Russellville and Dover and the community at large," Garrett said. "We continue to move forward with our plans to develop Legends Resort & Casino Arkansas, including working closely with local officials to determine which is the best location for the project."
Afterward, Sen. Breanne Davis, R-Russellville, who attended the commission's meeting Thursday, said in an interview that she doesn't have an opinion about whether the commission should award the license to Cherokee Nation Businesses.
"I want them to do what's right and look at the qualified applications," she said. "But I would just like to see our community come together at some point, along with whatever vendor wins the license."
Davis added, "If I could have my way, I'm not for a casino coming into Pope County."
"But the Arkansas Constitution is the constitution, so at this point in the process, everyone has to follow the law and what is laid out, and that's sort of where I am at, is just watching it play out and hoping for the best outcome for Pope County along the way," she said.
Metro on 12/20/2019