Justice opinion scuttles gaming plans in Grants Pass

By Dean Rhodes

Smoke Signals editor

SALEM – The Confederated Tribes of Grand Ronde and the other Oregon Tribes that operate casinos received good news on Friday, Feb. 11, when the Oregon Department of Justice said that plans by the Oregon Racing Commission to possibly allow 225 slot machine-like historic racing machines at the Flying Lark in Grants Pass would be unconstitutional.

TMB Racing, a company formed by Dutch Bros Coffee co-founder Travis Boersma, filed a motion to compel in late December in Josephine County Circuit Court seeking to force the state to decide on plans for gambling at an entertainment complex adjoining the race track at the Josephine County Fairgrounds.

TMB Racing claims the Oregon Racing Commission has put the horse-racing venture in financial “limbo” by failing to vote on whether to approve 225 gambling terminals in the Flying Lark’s “hospitality center.”

Boersma’s plans drew opposition from the state’s Native American Tribes, including the Grand Ronde Tribe, which argue that allowing slot machine-like historic horse racing machines at the Flying Lark would be unfair since only Tribes are allowed to operate casinos in Oregon. Their approval, Tribes contend, would hurt not only Tribal casino revenues, but the Oregon Lottery as well.

After receiving a letter from Oregon Tribal representatives, Gov. Kate Brown told Oregon Racing Commission members that they had a “statutory obligation” to consult with the Tribes. She also suggested that the commission seek a formal legal opinion from the Oregon Department of Justice on the legality of Boersma’s plans.

That opinion categorically states that TMB Racing’s plan violates the constitutional prohibition against casinos.

“We determine that the machines are games of chance that do not afford players any meaningful opportunity to exercise skill,” states the opinion written by Chief Counsel Renee Stinemen and addressed to Racing Commission Executive Director Jack McGrail. “We are not the first to conclude that HHRs are impermissible games of chance. The Nebraska Attorney General reached the same conclusion.”

The Oregon Racing Commission met briefly in executive session on Tuesday, Feb. 8, ostensibly to discuss the written legal advice and pending litigation related to the TMB Racing application. Per Oregon’s Public Meetings Law, the press was admonished not to report specific information discussed during the executive session.

Previous to the Department of Justice releasing its opinion, Tribal lobbyist and Tribal member Justin Martin attended a Jan. 27 Tribal consultation with the Oregon Racing Commission that he said was “OK.”

“This really isn’t about winning and losing,” Martin said. “It’s about where we want to go as a state in the future with gambling. What is best for Oregon, Oregon’s Tribes and Oregon’s citizens? This is why we have requested that the Legislature create a joint special committee to look at all gambling in Oregon. Let’s do this the Oregon way and bring everyone to the table. … Mr. Boersma’s fight really isn’t with the Tribes. It’s with the Oregon Constitution.”

Boersma originally hoped to open the Flying Lark by October 2021 and then rescheduled to February. With the Department of Justice ruling part of his business plan unconstitutional, he will have to adjust or, as he has threatened, not open the Flying Lark entertainment center.

A bill submitted in the Oregon House of Representatives at the request of Tribes would call a halt to any expansion of gaming for a year, giving all stakeholders, including Tribes, the Oregon Lottery and private interests, time to determine the future course.

Meanwhile, Oregon Secretary of State Shemia Fagan also announced on Thursday, Feb. 10, that an audit of racing oversight and regulation by the Oregon Racing Commission is included in her office’s 2022-23 audit plan.

Meeting with

governor postponed

On Tuesday, Feb. 1, Tribal Council Vice Chair Chris Mercier was scheduled to attend a virtual meeting with Gov. Kate Brown regarding gaming issues in the state. However, the meeting was canceled.

Brown, or the next governor, would have to approve the Siletz Tribe’s proposed casino project in north Salem if the Department of the Interior gives its blessing. Brown, or her successor, would have to jettison the state’s long-standing policy regarding Native American casinos – one casino per Tribe on Reservation land.

The Bureau of Indian Affairs held a virtual public hearing on Wednesday, Jan. 26, about the Siletz Tribe’s proposal to open a casino at the intersection of Interstate 5 and 99E on 20 acres of trust land and eight acres of fee land. The Siletz Tribe already operates a casino in Lincoln City.

Grand Ronde Tribal members and employees comprised 21 of the 28 people who testified during the hearing.

Should Interior Secretary Deb Haaland eventually approve the Siletz request, the Tribe would still have one more hurdle to jump over – getting approval from Brown or the state’s next governor. Brown’s term lasts through 2022 and she will not be able to run again because of term limits.