The Arkansas Supreme Court has vacated a Pulaski County circuit judge's finding that the Cherokee Nation Businesses' Legends Resort and Casino LLC is not qualified to be considered for a casino license in Pope County because it has no experience conducting casino gambling, as required by the Arkansas Constitution.
The state's high court also vacated Pulaski County Circuit Judge Tim Fox's finding that Cherokee Nation Businesses is not a casino applicant as defined by the Arkansas Constitution.
With Chief Justice Dan Kemp and Justice Josephine Hart not participating, the court posted its ruling late Tuesday afternoon in response to a request from attorneys of the Cherokee Nation Businesses and its Legends Resort and Casino on July 8 that the high court issue an emergency writ of certiorari vacating the ruling.
Both Gulfside Casino Partnership and Legends are seeking the casino license in Pope County. The license would be issued by the state Racing Commission.
"We appreciate the Supreme Court taking this unusual step and correcting a substantial error in analyzing CNB's corporate structure," said Dustin McDaniel, legal counsel for Cherokee Nation Businesses.
"There are many stages left in this process, but this Writ was important and significant," McDaniel said in a written statement.
But Lucas Rowan, counsel for Gulfside, said, "Judge Fox is correct that neither Cherokee Nation Businesses, LLC nor Legends Resort and Casino, LLC are qualified applicants under Amendment 100.
"The Supreme Court's order does not change that. Gulfside remains the winner of the license, as scored by the Arkansas Racing Commission and as the only qualified applicant," he said.
At issue before the Arkansas Supreme Court was Fox's July 2 ruling that Legends Resort and Casino LLC, which is a limited liability company set up by Cherokee Nation Businesses, does not qualify as an applicant for the Pope County license.
Legends sought to intervene in the lawsuit that Gulfside filed against the Racing Commission, but Fox denied the request.
On July 2, Fox also denied Gulfside's motion for contempt alleging that the Racing Commission failed to follow its own rules and should have issued the company a license for the Pope County casino within 30 days of a previous ruling by Fox.
In that previous ruling earlier this year, Fox validated endorsement letters for Gulfside by former local officials who were no longer in office when the company applied last year for the license.
Applicants are required to have the endorsements under constitutional Amendment 100, approved by voters in November 2018.
The amendment authorized the expansion of gambling operations at racetracks in Hot Springs and West Memphis into full-fledged casinos. It also allowed the Racing Commission to issue one casino license each in Jefferson and Pope counties.
In June 2019, the commission voted to issue the casino license in Jefferson County to the Downstream Development Authority of the Quapaw Nation, then the commission voted in October to transfer that license to Saracen Development LLC, a new company formed by the Quapaws.
On June 18 of this year, the Racing Commission signaled its intent to issue the Pope County casino license to Gulfside based on the seven commissioners' scoring of applications, giving a total score of 637 to Gulfside compared with 572 for Cherokee Nation Businesses.
But the commission on June 22 voted to find that commissioner Butch Rice of Beebe was biased in favor of Gulfside with his score of 100 compared to his score of 29 for the Cherokees. The commission that same day decided to delay action on how to proceed.
In their court filings with the state Supreme Court, attorneys for Gulfside and Legends disagreed about where the commission's decision on the license sits.
"With that commissioner's scores disqualified, CNB has 543 points compared to Gulfside's 537. In short, CNB is now the preferred applicant and stands to receive the Pope County casino license," attorneys for Legends wrote in their petition filed July 8 for a writ of certiorari to vacate Fox's order.
But attorneys for Gulfside wrote Monday in their request for the high court to deny the requested writ that the Racing Commission did not disqualify the commissioner's scores or make any decision regarding the appropriate action to be taken based upon the finding that Rice's scores were biased.
"Though Legends inexplicably refers to itself as the 'presumptive successful applicant,' the actual status is that Legends submitted a notice of appeal of the denial of its application to the Racing Commission on June 25, 2020, and that appeal is currently pending before the commission," the attorneys for Gulfside wrote. "To this day, the Commission has not rescinded its award of the license to Gulfside."
The commission will meet before July 31 to determine the next steps regarding the Pope County casino license, state Department of Finance and Administration spokesman Scott Hardin said Wednesday.
Cherokee Nation Businesses operates 10 casinos in Oklahoma. Gulfside Casino Partnership operates a casino in Gulfport, Miss.
The Cherokees are proposing a $225 million casino and resort with 1,100 slot machines, 32 table games and 200 hotel rooms near Russellville off Hob Nob Road, while Gulfside is proposing a $254 million casino and resort with 1,900 slot machines, 90 table games and 500 hotel rooms near Russellville north of Interstate 40, off Exit 84.
In June 2019, the Cherokees announced that they are partnering with Legends -- a stadium management company founded by Dallas Cowboys owner Jerry Jones and the late George Steinbrenner, who owned the New York Yankees -- to "manage the process for the design and development" of the Pope County casino should the tribe be awarded the license.