Attorney General Tim Griffin's office on Wednesday recommended rule changes for the Arkansas Racing Commission to consider as the next step for the commission to act on before the commission may set an application period for the Pope County casino license.
The commission agreed to meet at 11 a.m. Tuesday to consider formally proposing changes to the rules.
"I would say you are looking at anywhere between 60 and 120 days for the rule promulgation," said Doralee Chandler, the deputy attorney general overseeing state agencies for Griffin, a Republican.
"After the rules are promulgated, if they are accepted by [the Arkansas Legislative Council] and approved, there is 10 days after we file them with the secretary of state for them to become effective," Chandler said.
At that point, the commission will need to approve a new application for the Pope County casino license and a new scoring matrix for the applications, and set the dates for the 30-day application period, Chandler said. After the application period ends, the commission will review and score applications for the casino license.
"Our goal is to move this as expediently as we can and eliminating as much potential litigation as possible," Chandler said.
Commission Chairman Alex Lieblong of Conway said, "We have been in enough litigation I think to last us a lifetime.
"I can't keep track of the courts," he said.
Arkansas Racing Commissioner Mark Lamberth of Batesville said "so we are basically wiping the slate clean and starting all over again."
Lieblong said, "At least we know what we did wrong the first time."
The Pope County casino license has been a source of turmoil for the county and the state, resulting in numerous court cases. Billions of dollars are collectively wagered at the state's casinos each year.
Amendment 100 to the Arkansas Constitution, approved by voters in November 2018, authorized the Arkansas Racing Commission to license four full-fledged casinos. Three casinos currently operate in Hot Springs, Pine Bluff and West Memphis.
Besides Lieblong and Lamberth, the Arkansas Racing Commission also includes Steve Anthony of Fordyce, Denny East of Marion, Michael Post of Altus, Bo Hunter of Fort Smith and Steve Landers of Little Rock.
On Jan. 11, the Arkansas Supreme Court denied a petition from Legends Resort and Casino and Oklahoma-based Cherokee Nation Businesses seeking a rehearing in the case in which the court ruled that the Arkansas Racing Commission's award of the Pope County casino license to the consortium violated Amendment 100.
In a 5-2 ruling Oct. 26, the state's Supreme Court affirmed a ruling by Pulaski County Circuit Judge Tim Fox issued in January 2023. Fox ruled the Arkansas Racing Commission erred by awarding the license to two entities when the Arkansas Constitution states that only a single entity can hold a casino license, and that Legends does not meet licensing requirements written into the Arkansas Constitution because the company has no prior casino experience. The Cherokee/Legends consortium challenged Fox's ruling to the state Supreme Court.
In November 2021, a divided Arkansas Racing Commission issued the Pope County casino license to the Legends/Cherokee consortium after it nullified the license that it awarded in 2020 to the Mississippi-based Gulfside Casino Partnership. Gulfside challenged the commission's decision, asking Fox to void the license to the consortium.
The commission's award of the casino license to the consortium came after the state Supreme Court in October 2021 reversed Fox's ruling that declared unconstitutional a commission rule and state law that required that letters of endorsement for casino licenses come from local officials in office at the time the license application is submitted. Gulfside's letter of support was signed by former Pope County Judge Jim Ed Gibson, just days before his term expired Dec. 31, 2018.
Chandler told the Arkansas Racing Commission on Wednesday that attorneys for Cherokee Nation Businesses and the Gulfside Partnership "have a different opinion on how to move forward, but it appears that there is one consensus of agreement and that [is] there needs to be a new open application period."
She said the attorney general office's recommendation "is to amend the rules to allow for a path forward for the commission to open a new application period and eliminate as many legal challenges as possible to the issuance of this license that is forthcoming" for a Pope County casino.
The commission's current rules state that applications for a casino license will be accepted by the commission for 30 days, starting on the date established by the commission, and no applications will be accepted after the 30-day period "except for good cause shown."
Among other things, Chandler said the attorney general's office recommends eliminating the phrase "except for good cause shown" from the rules.
"This is a clause that is inviting of litigation," she said. "It is not necessary. You are setting a time period to accept those applications. Applicants that are truly interested in being considered should be able to make that application within the 30 days that you all are allowing them."
Anthony said it is probably a good idea for the commission to take some time to read through the recommended changes to the rules -- even though, he said, they seem pretty simple and straightforward.
Lieblong agreed with Anthony.
Afterward, Casey Castleberry, counsel for Gulfside Casino Partnership, said in a written statement that "We appreciate the Attorney General's careful examination of this matter and generally believe its recommendations are the appropriate way for the Arkansas Racing Commission to move forward."
Attorney and lobbyist Dustin McDaniel, who represents Cherokee Nation Businesses, said in a letter dated Jan. 12 to Lieblong that Cherokee Nation Entertainment LLC has, and continues to maintain, the exclusive letter of support from Pope County Judge Ben Cross and the only resolution of support from the Pope County Quorum Court.
LOBBYISTS
During the commission's meeting Wednesday, Chandler told racing commissioners they may receive phone calls and requests to meet from various individuals regarding the Pope County casino license, and she urged commissioners to refer the calls and requests to Arkansas Racing Commission Director John C. "Smokey" Campbell.
"We really need each and every one of you all to not have to recuse from hearing this matter," she said. "You all have a very important role to play."
The commission has historically been composed largely of horse racing aficionados.
Lieblong said he doesn't think it is a good idea for the Arkansas Racing Commission to be talking about another casino's business at the Oaklawn Racing Casino Resort in Hot Springs because "it might just not look right," so the commission will try to continue to meet at the commission's office in Little Rock as it considers matters related to the Pope County casino license.
He said he wanted to thank the audience at Wednesday's commission meeting for remaining quiet.
"I know it is very, very tough. We got so many attorneys out there and lobbyists not getting to say anything -- that has got to be torture," Lieblong said.
Then, he quipped, "You can apply for medical assistance on the way out."
After the commission's meeting, Allison Burum, a spokeswoman for the Cherokee Nation Businesses, said the Cherokees' lobbyists in Arkansas are WSG Consulting; Bi-Partisan Strategies Inc.; Impact Management Group; Christian Gonzales; McDaniel, Wolff & Benca, PLLC; and JCD Consulting Services.
Castleberry said Gulfside Casino Partnership's lobbyists in Arkansas are Broadview Strategies LLC; Caldwell Consulting; and Eddins & Associates.
On Jan. 11, the Arkansans for Local Voices ballot committee filed a statement of organization with the Arkansas Ethics Commission that states the committee will advocate for a proposed constitutional amendment for the 2024 general election ballot to repeal the authorization for a casino in Pope County and "to require a local option vote for any future potential casino locations."
In August 2022, the Fair Play for Arkansas committee narrowly failed to submit enough signatures to get a similar proposal on the 2022 general election ballot, Republican Secretary of State John Thurston said at that time. The Choctaw Nation helped finance the committee.
John Burris, who is a partner at Capitol Advisors Group, said the Oklahoma-based Choctaw Nation's lobbyists in Arkansas are Capital Advisors Group; Natural State Consulting & Strategies; and Rock Advisory Group.