RW Dev., LLC v. Miss. Gaming Comm'n

• Decision Date: 10 December 2020
• Docket Number: NO. 2019-SA-01813-SCT, NO. 2019-SA-01815-SCT,2019-SA-01813-SCT
• Citation: 307 So.3d 404
• Court: Mississippi Supreme Court
• Parties: RW DEVELOPMENT, LLC v. MISSISSIPPI GAMING COMMISSION and Mississippi Gaming & Hospitality Association RW Development, LLC v. Mississippi Gaming Commission

307 So.3d 404

RW DEVELOPMENT, LLC

v.MISSISSIPPI GAMING COMMISSION and Mississippi Gaming & Hospitality Association

RW Development, LLC

v.Mississippi Gaming Commission

NO. 2019-SA-01813-SCT

NO. 2019-SA-01815-SCT

Supreme Court of Mississippi.

December 10, 2020

ATTORNEYS FOR APPELLANT: GERALD BLESSEY, MICHAEL F. CAVANAUGH, Biloxi

ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: DEANNE B. SALTZMAN, Jackson, AMELIA B. GAMBLE

BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. This matter comes before the Court as the consolidation of two cases on appeal. In each case, the Circuit Court of Harrison County affirmed the decision of the Mississippi Gaming Commission (MGC) to deny the gaming site application of RW Development, LLC (RW). The MGC and the circuit court found that RW's proposed gaming site failed to meet the governing statutory and regulatory requirements under Mississippi Code Section 97-33-1 (Rev. 2014) in the first instance and 13 Mississippi Administrative Code Part 2, Rule 1.4(d) (adopted May 1, 2013), Westlaw, in the second. We agree, and we affirm the decision of the circuit court in both cases.

FACTS AND PROCEDURAL HISTORY

A) Pre-No. 2019-SA-01813-SCT

¶2. RW's proposed gaming site consists of seventeen acres of land located at the intersection of Veteran's Avenue and U.S. Highway 90 in Biloxi, Mississippi. RW is the fee simple owner of this land. RW made its first of three applications for gaming site approval in 2008.

¶3. On July 17, 2008, the MGC unanimously voted to deny RW's gaming site application. In voting to deny, the MGC found that the mean high water line (MHWL) is statutorily defined "as the point where mean high water meets the shore," not the toe of the seawall. The MGC also found that RW failed to show it satisfied governing regulations that require RW to "own and/or lease the property to the shore" and to show how that property would be "an integral part of the overall project." In August of that year, RW sought judicial review of the MGC's denial of RW's gaming site application but, for unknown reasons, RW voluntarily dismissed the case the next day.

B) No. 2019-SA-01813-SCT

¶4. In June of 2016, RW submitted its application for gaming site approval for the second time. The MGC received input from the public for and against the proposed site, and in February of 2017, the MGC held a hearing at which RW gave reasons in support of approving its gaming site application. RW included within its application a survey that placed the MHWL at the toe of the seawall. RW's application showed that the location of its proposed gaming floor was located within eight hundred feet of that location. Treasure Bay Casino also submitted its own survey that had originally been prepared in opposition to RW's 2008 gaming site application. Treasure Bay's survey determined that the MHWL was south of the toe of the seawall. Also, during this application process, RW submitted a letter from the secretary of state that gave his opinion regarding the site. In his letter, the secretary of state opined that the Public Trust Tidelands Boundary Line was the seawall.

¶5. On March 16, 2017, after reviewing all the evidence mentioned above, the MGC took up the matter and denied RW's second gaming site application. Following that decision, the MGC issued a statement explaining its reasoning for denying RW's application:

The Commission finds that the mean high water line as defined by statute is the intersection of the tidal datum plane of mean high water with the shore regardless of whether that shore is a result of beach renourishment. In this location, the toe of seawall is not the mean high water line. Therefore, the proposed site is not within eight hundred (800) feet of the mean high water line.

RW then appealed the MGC's decision to the Harrison County Circuit Court.

¶6. On November 12, 2019, the Harrison County Circuit Court issued its order and found that the Public Trust Boundary Line is not interchangeable with the MHWL and that the survey provided by RW failed to establish a valid MHWL. The circuit court also found that the MGC had before it "competing surveys," referencing RW's survey and the survey submitted by Treasure Bay and that because of this fact, "[t]his court may not reweigh the evidence presented to the administrative agency or substitute its own judgment for that of the agency." Lastly, the circuit court found that RW had received due process. For those reasons, the circuit court affirmed the MGC's decision to deny RW's second gaming site application.

C) No. 2019-SA-01815-SCT

¶7. In June of 2017, the MGC received a third application from RW seeking approval of the proposed gaming site. During June and July of that year, the MGC received public input regarding RW's proposed site for this application. RW's application included a survey that did show the proposed gaming site within the required eight hundred feet of the actual MHWL.

¶8. On July 27, 2017, after reviewing all submitted evidence, the MGC considered RW's third application at the MGC's monthly meeting. RW appeared through counsel, and the MGC entertained public comment. RW offered none. Ultimately, the MGC unanimously voted to deny RW's third gaming site application. The MGC explained the denial of RW's proposed gaming site in the following statement:

The Applicant submitted a survey which established the location of the property and demonstrated a point of reference to determine the location of mean high water line. The gaming floor at the proposed site was within eight hundred (800) feet of this point.

However, 13 Mississippi Administrative Code Part 2 Rule 1.4(d) requires,

Any point of reference used to determine the 800 foot distance from the mean high water line must be located on the applicant or licensee's premises. The applicant or licensee must own and /or lease the land that is contiguous both to the parcel used to conduct gaming and the point of reference used to determine the mean high water line, and this land must be shown to be an integral part of the project.

The mean high water point of reference utilized in the survey is not located on the Applicant's premises nor does the Applicant own or lease the land contiguous to this point of reference. Finally the applicant did not demonstrate how this land could be an integral part of the project.

Pursuant to statutory authority and following its interpretation of the pertinent laws and regulations, the Mississippi Gaming Commission deems that the request for site approval by RW Development, LLC does not meet its burden under the requirements for a legal site at which to conduct gaming.

Following the denial, the chairman of the MGC made his own statement explaining "that he voted to deny because gaming regulations barred the proposed location. However, in his opinion, the site was legal under Mississippi statute and that a regulation should not exist that overrules a statute." RW appealed this third decision to the Harrison County Circuit Court.

¶9. On November 12, 2019, the Harrison County Circuit Court issued an order in which it found that the MGC's "interpretation of § 91-33-1 is reasonable, and the number of casino sites approved since 2006 and RW's denial speak to the validity of their interpretation of the statute." The circuit court further found that RW had failed to comply with the relevant gaming regulations because RW had failed to show it owned or leased the land contiguous to the point of reference. Further, it found that RW had failed to demonstrate the ability to make that land integral to the project. Lastly, the circuit court determined that the MGC did not deny RW due process. For those reasons, the circuit court in this case affirmed the MGC's decision to deny RW's third gaming site application.

¶10. Aggrieved by the circuit court's decision to affirm the MGC's denial of RW's proposed gaming site in both cases, RW now appeals to this Court.¹

ISSUES PRESENTED

A) No. 2019-SA-01813-SCT

¶11. On appeal, the parties submit that the main issue is whether the Public Trust Tidelands Boundary Line is interchangeable with the MHWL. Additionally, the Court must also determine the following issues:

(1) Whether the MGC exceeded its statutory authority;

(2) Whether the MGC based its decision on any evidence and whether its decision was arbitrary and capricious; and

(3) Whether RW received due process.

B) No. 2019-SA-01815-SCT

¶12. On appeal, the parties submit that the main issue is whether the MGC exceeded its statutory authority in promulgating 13 Mississippi Administrative Code Part 2, Rule 1.4(d). Additionally, the Court must also determine the following issues:

(1) Whether RW failed to comply with 13 Mississippi Administrative Code Part 2, Rule 1.4(d) ;

(2) Whether the MGC based its decision on any evidence and whether its decision was arbitrary and capricious; and

(3) Whether RW received due process.

STANDARD OF REVIEW

¶13. On appeal, this Court grants a "circuit-court judge presiding in a bench ‘trial the same deference with regard to his findings as a chancellor.’ " Falkner v. Stubbs , 121 So. 3d 899, 902 (Miss. 2013) (quoting City of Jackson v. Perry , 764 So. 2d 373, 376 (Miss. 2000) ). Therefore, this Court reviews "the circuit court's interpretation and application of the law de novo, and its findings of fact will not be reversed if supported by substantial evidence." Id. (citing Davis v. Smith (In re Estate of Smith) , 69 So. 3d 1, 4 (Miss. 2011) ).

¶14. As for the standard of review for decisions made by the MGC, Mississippi Code Section 75-76-173(2) (Rev. 2016), the Mississippi Gaming Control Act, provides that review by the circuit court and by the Supreme Court is the exclusive vehicle for judicial review of the MGC decisions. Pickle v. IGT , 830 So. 2d 1214, 1220 (Miss. 2002). The standard of review for such appeals is outlined as follows:

The reviewing court may affirm the decision and order of the commission, or it may remand the case for

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