The Oregon Department of Justice has ruled that historical horse racing (HHR) machines planned for the Flying Lark entertainment center at Grants Pass Downs are illegal and violate the state constitution.
The Oregon Racing Commission will make the final decision on whether to allow applicant TMB Racing to operate the machines at the Josephine County Fairgrounds.
The 225 machines would make the facility into a casino, said the DOJ on February 11. The machines purport to give a player a chance to wager on past horses races. Names are filtered out and only the statistics remain. Nevertheless, says the opinion, it is gambling. The HHR machines, “do not afford players any meaningful opportunity to exercise skills” it says.
It continues, “The planned concentration of 225 electronic gaming machines offering games of chance constitutes a casino,” adding, “Therefore, TMB Racing’s plan violates the constitutional prohibition against casinos.”
The DOJ concludes, “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.”
The nine-page opinion was requested by Jack McGrail, executive director for the commission.
The proponent of the project, Dutch Bros Coffee billionaire Travis Boersma, has spent $50 million renovating the racetrack. He told the Oregonian, “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.” He added, “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.”
The commission had appeared to be moving toward approving the project, which would have reinvigorated the only operating racetrack in Oregon. The last one closed in 2018. However, last October, Oregon’s gaming tribes filed a complaint about the proposal and Governor Kate Brown gave a gentle but unsubtle nudge that the commission should strongly consider the tribes’ objections.
Anthony Broadman, an attorney for the Cow Creek Band of Umpqua Tribe of Indians, was pleased with the opinion. He told the Bend Bulletin:
“What we saw today was the DOJ finally agreeing with what the tribes have been saying for 10 years.” He added, “We’ve seen the rapid proliferation of state-sanctioned gambling without a corresponding increase in the state’s capacity to oversee it.”
Cow Creek Band spokeswoman Anna Richter-Taylor told FOX26, “Many tribes at least have been on the record since 2015 when the HHR machines were first introduced in Oregon.” She continued, “We had concerns about their legality.”
She added, The casinos are the tribes’ revenue source. The casinos are to provide public services for their tribal members, instead of being dependent of local and state services.”
The gaming tribes see the Flying Lark as a threat to their bottom line, which has been attacked in recent years by the lottery and digital gaming.
Boersma’s proposal relies on a 2013 law that allows horse racing tracks to offer HHR machines. He says the project won’t pencil out without the machines. Supporters says hundreds of jobs are on the line.
The DOJ opinion addressed the issue of the HHR machines being allowed previously: “[W]e 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.”
Tribes claim the machines can’t be distinguished from slot machines and that the element of skill has been stripped away from them. But a technical question about how the machines would determine winners still has yet to be answered, and if the winners are determined by “live” races rather than “historical” races could make a big difference.
