Decision on CNB Arkansas gaming license still in limbo

BY D. SEAN ROWLEY
Senior Reporter
01/07/2020 02:30 PM
RUSSELLVILLE, Ark. – After a court decision forced the cancellation of an Arkansas Racing Commission meeting, Cherokee Nation Businesses is still awaiting the results of legal sparring to see whether it gets the go-ahead to build a casino in Arkansas.

The ARC was expected to consider the CNB’s casino application. However, on Jan. 3, Pulaski County Circuit Court Judge Wendell Griffen granted a temporary restraining order against the ARC.

“We are disappointed by the recent turn of events and continued delay,” CNB CEO Chuck Garrett said in a prepared statement issued to media. “As the only qualified applicant pursuant to Amendment 100, our team was prepared to deliver a formal presentation on (Jan. 6) per the invitation of the Arkansas State Racing Commission. We look forward to receiving that opportunity in the very near future and subsequently being awarded the casino gaming license.”

Citizens for a Better Pope County, which opposes opening a casino, successfully lobbied for the order by arguing the ARC had already broken its rules by allowing a second permit application period. CBPC claims a second application period was only legal if no applications were received during the first. The ARC received five applications, including CNB’s, during an initial period, but all were rejected because none received endorsements from county officials, per ARC regulations. CNB submitted an application during the second filing period that included the requisite endorsements.

The restraining order says second filing periods are not addressed by ARC regulations, and the application windows were not the same duration – the first was 30 days and the second 120 days.

Griffen’s ruling says amendment of the filing window is possible if done in compliance with state law, which requires public notice and comment. The order states “the court must find that there is a likelihood that the plaintiffs will succeed on the merits of their lawsuit,” and that ARC rules “do not hint, let alone provide, that the Commission was authorized to open a second casino license application period after it received and rejected applications submitted during an initial time….”

The order prevents the ARC from making any decision on the second round of applications, and the parties “are hereby directed to contact the Trial Court Assistant to schedule a hearing on Plaintiffs’ Motion for Preliminary Injunction.”

“Today’s ruling adds some breathing space to a process which up to this point has completely ignored the voices of the people most affected by (Arkansas Constitutional) Amendment 100 – Pope County citizens,” Russellville attorney Anna Stirlitz said in a statement. “Regrettably, the initiated amendment process allowed out-of-state money to game the system against our county.”

On Jan. 2, Pulaski County Circuit Court Judge Tim Fox refused the request by CNB to intervene in the Gulfside Casino Partnership lawsuit and keep the case in Pulaski County. Fox has suggested the case should be tried in Pope County. He also took issue with the second application window, but did not cite it as a basis for his refusal.

Gulfside received endorsements from local officials during their last days in office. The ARC denied the application because it had adopted a rule – and the Arkansas Legislature passed a law – requiring any endorsing officials be in office when the commission receives the license application. The Gulfside suit claims the endorsements are valid and its application should have been considered by the ARC because the new rule is unconstitutional.

During a Nov. 25 hearing, Fox said Gulfside officials could wait their turn behind hundreds of pending cases, or go back to Pope County and receive a decision more quickly.

Amendment 100, passed in October 2018 by Arkansas voters, allowed the establishment of new casinos in Pope and Jefferson counties, and expansion of the horse track facilities at Hot Springs and West Memphis to include casino gambling.

Pope County voted against Amendment 100, and approved by 70 percent a county ordinance demanding an election to approve official endorsement of any casino applicant. Due to legal interpretations indicating the ordinance violated Amendment 100, the county repealed the measure.
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