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After filings, rivals in Pope County casino fray wait

All eyes now on state Supreme Court by Jeannie Roberts | August 11, 2021 at 6:54 a.m.
A roulette wheel spins in 2018 at Cherokee Casino & Hotel in West Siloam Springs, Okla. (File Photo/NWA Democrat-Gazette/Ben Goff)

After filing their final appeal-related briefs earlier this week to the Arkansas Supreme Court, those vying to break ground on a Pope County casino said they're grateful the case over the contested operating license is moving forward.

"We are optimistic the Arkansas Supreme Court will affirm the Circuit Court's decision, so we can immediately begin construction of our $254 million River Valley Casino Resort," said Casey Castleberry, counsel for Gulfside Casino Partnership, to which the state Racing Commission awarded the license.

"We appreciate the Supreme Court expediting this matter which is of great importance to the state and Pope County," said Bart Calhoun, attorney for Cherokee Nation Businesses, which is contesting the commission's decision. "We are confident the state statute and Racing Commission rule will be upheld, and Amendment 100's local support requirement enforced, confirming Legends Resort & Casino as the only applicant qualified to receive the Pope County license for casino gaming."

Gulfside and Cherokee Nation are the only two applicants left standing in the fight for the Pope County license since Amendment 100 was passed by voters in 2018 and the Arkansas Racing Commission opened its first window to accept applications May 1, 2019.

The question of which company should be awarded the license has been contentious for years.

Amendment 100 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.

Gulfside filed suit after its license application was initially denied by the Racing Commission because its letter of support was signed by County Judge Jim Ed Gibson just days before his term expired on Dec. 31, 2018.

While Amendment 100 requires local endorsements, it does not stipulate when the endorsements have to be dated or submitted.

A Racing Commission rule and a state law that required the endorsements come from local officials in office at the time of application for a license, were deemed unconstitutional and struck down twice by Pulaski County Circuit Judge Tim Fox -- who said the rule and the law added an extra requirement to constitutional Amendment 100.

The Racing Commission last year awarded the license to Gulfside, but the lawsuit continued with Cherokee Nation appealing Fox's decision to the state Supreme Court.

The court rejected oral arguments and the final briefs in the case were filed Monday.

The Supreme Court comes returns to session Sept. 9.

Gulfside's 47-page brief reiterated the story of the conflict and pointed out a "bizarre procedural twist" in the Racing Commission joining the suit against Gulfside -- saying that the Mississippi casino operator was not a qualified applicant -- after it declared in 2020 that Gulfside was indeed a qualified applicant and awarded the company the Pope County license.

"The lawsuit before the Supreme Court goes to our qualifications as an applicant. While we have had a casino gaming license since July of 2020, we knew this issue would have to be decided by the high court," Castleberry said. "We are happy that the issue has made it to the court so quickly, and we look forward to the Court's ruling. The case before the Arkansas Supreme Court is the only reason we have not begun construction already."

Gulfside argued in its filings that "the county judge" in Amendment 100 refers to the person holding that office "the day the letter was issued" as long as it was issued after Amendment 100 went into effect on Nov. 14.

"Nowhere in Amendment 100 does it require the letter of support to come from the county judge in office at the time the application is submitted," the brief said. "It is just not there."

Cherokee's 22-page brief -- written by Calhoun with attorneys Scott Richardson and Dustin McDaniel -- argues that Gulfside is not a qualified applicant.

"When an entity applies for a casino license, there can be only one 'the county judge:' the county judge in office when the entity submits its application," the Cherokee Nation Businesses brief said. "The language is plain, and its effect is clear."

Senior Assistant Attorney General KaTina Hodge-Guest said in the attorney general's 14-page brief that Gulfside failed to overcome the "strong presumption of constitutionality" of state statutes and rules and has failed to show how those same rules and statutes are "so clearly incompatible with Amendment 100."

Hodge-Guest accuses Gulfside of throwing out several "red hearings" that "bear no relevancy to the constitutionality of the rule or statute."

"Gulfside also gripes that the Attorney General's office has chosen to appeal the circuit court's May 7, 2021 order," Hodge-Guest wrote in the brief. "Arkansas Code Annotated § 16-111-111(a) authorizes the Attorney General's office to defend actions wherein the constitutionality of statutes, ordinances, and rules are challenged."

Also on Monday, Ben Cross, county judge of Pope County, filed an amicus curiae brief in support of Cherokee Nation Businesses.

The brief also was supported by the county judges of Miller, Lincoln, Crittenden, Logan and Johnson counties.

After stating from the beginning that he would not support a casino in Pope County unless it was the will of his voters, Cross wrote a letter of support for Cherokee Nation Businesses after he negotiated a $38.8 million economic development agreement with the business.

After six new Quorum Court members were voted out of office last year, the now majority anti-casino justices of the peace adopted resolutions stating the county was not supporting Cherokee Nation Businesses or any casino in Pope County.

In the brief, Clay McCall of the McCall law firm said the ruling by Fox "improperly takes away the local power granted to Pope County" by Amendment 100.

The circuit court's interpretation of "the county judge" would open the door for applicants using letters from former county judges that served years ago, the brief said.

The circuit court opinion threatens to deprive Pope County of the $38.8 million plan, McCall said in the brief.

"This appeal directly implicates both the finances of Pope County and the regulation of its chief executive officer, the county judge," McCall said in the brief.

Page 11 notes that Cherokee Nation Businesses "made a monetary contribution" to pay for the attorney's preparation of the brief.

"My intention when filing this Amicus Brief is to advocate for Pope County to have a voice in which operator will be a trusted member of our community for years to come," Cross said in an email. "Furthermore, to set a precedent for counties across Arkansas to ensure the will of former county judges is not forced upon voters years after they are out of office."

Both Cherokee Nation Business and Gulfside have opened offices in Russellville. Cherokee Nation set up shop more than a year ago.

Gulfside cut the ribbon on its Russellville office Aug. 3.

The casino operator has moved ahead with the necessary steps to begin building the gambling venue, gaining a 7-1 approval of its development plans from the Russellville Planning Commission on Aug. 5.

Not only was the main casino complex -- to be at 51 Bradley Cove Road -- approved, but also a temporary annex that could house a small casino during construction of the main project.

Print Headline: After filings, rivals in casino fray wait

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