Oregon Tribes ‘pleased’ with DOJ opinion on Flying Lark, Oregon Racing Commission to be audited

GRANTS PASS, Ore — Cow Creek Band of Umpqua Tribe of Indians is pleased with the Oregon Department of Justice’s opinion, as the fate of the Flying Lark could be determined as early as this week.

“Many tribes at least have been on the record since 2015 when the HHR machines were first introduced in Oregon,” Anna Richter-Taylor, spokesperson with the Cow Creek Tribe based out of Roseburg, told NBC5 Monday. “We had concerns about their legality.”

Last Friday, the DOJ released a nine-page opinion report, determining that the Flying Lark would constitute as a “private casino” – violating two provisions of the Oregon Constitution.

The business, which is located next to the Josephine County Fairgrounds, has been awaiting approval from the commission on 225 Historic Horse Racing machines (HHR).  Governor Kate Brown paused any action from the commission for the HHR machines, until it received the opinion  from the DOJ.

Ultimately, the DOJ’s conclusion stated, “We determine that the machines [proposed by TMB racing] are games of chance that do not afford players any meaningful opportunity to exercise skill. As a result, we conclude that they are lotteries. Lotteries are constitutionally prohibited in Oregon, unless they are run by the State Lottery. Thus, the HHRs cannot be authorized by the Commission. ”

Additionally, the DOJ reasoned that any business with more than 75 video lottery terminals at any single establishment under one owner, likely constitutes as a casino. Wherein that point, is also banned in the state.

Richter-Taylor said the focal point in their fight against the Flying Lark and other private casinos, is that the business would take away money from the tribes.

The casinos are [the tribes’] revenue source,” Richter-Taylor. “The casinos are to provide public services for their tribal members, instead of being dependent of local and state services.”

The Oregon Racing Commission, which approved the now defunct Portland Meadows for HHR machines, did not agree with the DOJ’s opinion.

Jack McGrail, executive director with the Oregon Racing Commission, stated that the Portland Meadows was granted the right to the same HHR machines and had to be limited at that specific facility.

It was approved because there was legislative approval,” McGrail told NBC5. “There was a statute that was passed, that authorized historic horse racing at the facility.” 

Though, the DOJ noted in the report, “we recognize that the now-closed Portland Meadows race course operated HHRs similar to those proposed by TMB Racing. However, whether the constitution permitted those machines to be authorized was never formally resolved.”

In a meeting held virtually last Thursday, the Oregon Joint Committee on Legislative Audits, shared a report of its 2022-2023 audit plan. The first on the list of new audits include a review of “racing oversight and regulation” in the state.  Six Tribal governments requested the audit from Secretary of State Shemia Fagan’s office.

Kip Memmott, Oregon’s audit director, says it hasn’t conducted a review of the Oregon Racing Commission in decades.

“The nature of gaming is expanding,” Memmott said. “The technology, the access, and the dollars involved have changed rapidly in recent years.” 

Grants Pass Downs President Randy Evers, told members during an ORC meeting last month that there would not be a racing season if the HHR machines were denied. ORC plans to meet again this Thursday in an executive session, to discuss plans moving forward.

Local resident Tony Smith, said last Friday that it would be disappointing if races are canceled at the Josephine County Fairgrounds this year.

It’s a pinpoint thing for Grants Pass,” Smith said. “A lot of people invest their money in horse racing, and I think [Flying Lark] would be a great asset to that.” 

The Josephine County Fairgrounds said it will wait to comment on the situation until it receives word from the Flying Lark.

Owner and Dutch Bros co-founder Travis Boersma, expressed his disapproval of the DOJ’s opinion in a statement released last Friday. More notably, he is remaining confident that the Flying Lark will continue to open.

“I’m disappointed in the DOJ’s opinion regarding The Flying Lark,” Boersma said. “I firmly believe it willfully disregards the state’s laws, which were lobbied for and agreed upon by Oregon’s sovereign nations. I believe the Oregon Racing Commission is acting in good faith and the process will ultimately reveal The Flying Lark to be a legal venture that serves to improve Oregon’s economy. I remain committed to saving horse racing in Oregon, providing family wage jobs in southern Oregon and working closely with tribal leaders to ensure all Oregonians benefit from the opening of The Flying Lark.”

Cow Creek said its very supportive of economic development, and wants an equal opportunity for the tribes and all Oregonians.

“Let’s look at whether or not our regulatory framework is structured in a way to adequately protect the public, and strike the right balance of governmental sponsored or supportive gaming.” said Richter-Taylor. 

This remains a developing story and more details will be released as it emerges.


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