ORC denies proposed gaming plans in Grants Pass

02.18.2022 Danielle Harrison State government, Gaming

By Danielle Harrison

Smoke Signals staff writer

SALEM – The Oregon Racing Commission voted unanimously on Thursday, Feb. 17, to deny TMB Racing 225 slot machine-like historic horse racing machines at the planned Flying Lark entertainment complex adjoining the racetrack at the Josephine County Fairgrounds in Grants Pass.

The decision was largely based on an opinion by the Oregon Department of Justice which categorically states that TMB Racing’s plan violates the Oregon 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.”

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 the entertainment complex.

TMB Racing claimed the Oregon Racing Commission 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 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.

At the Thursday meeting, Racing Commission members resolutely agreed that while they thought the Justice Department opinion conflicted with existing state law as well as years of precedent set by the now-defunct Portland Meadows racetrack, they needed to abide by it regardless.

“We have our marching orders,” Chair Diego Conde said. “I don’t understand the DOJ opinion and cannot provide any legal advice although I am a lawyer, but we will do what we are told. There’s a high likelihood this matter doesn’t conclude here.”

After receiving a letter from Oregon Tribal representatives objecting to the racing machines, 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.

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 said he will not open the Flying Lark entertainment center. He added this decision means more than 200 people will lose their jobs at the end of March.

“I know the DOJ opinion has had a significant impact,” Boersma said. “My team and I believe the opinion is wrong and deeply flawed. I am confident we have a path to continue this process.”

Anna Richter-Taylor, spokesperson with the Cow Creek Tribe, said that the Tribe agreed with the legal opinion, but also feels there is an opportunity to come to a “mutually agreeable resolution.”

“Economic development is very important to Tribes,” she said. “I hope we can come together and support horse racing without the HHR machines.”

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 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.