In the mid 1990s, the Mississippi Gaming Commission served as the battleground for numerous fights regarding the legality of gaming sites on the Mississippi Gulf Coast. Many of those contests resulted in a series of cases that the Mississippi Supreme Court decided. In a set of disputes that are reminiscent of those days gone by, the Mississippi Gaming Commission recently reconsidered two controversial Gulf Coast sites.

Each of the sites had been previously considered—and rejected—by the Mississippi Gaming Commission, one in 2008 and the other in 2014. At issue in each case was whether the site was legal under the Mississippi Gaming Control Act. The act requires land-based gaming sites on the Mississippi coast to be within 800 feet of the mean high water line adjacent to certain statutorily mandated water bodies.

With three new Mississippi Gaming Commissioners, who were not sitting on the Commission in 2014, much less 2008, the applicants sought to have the two sites reconsidered.

Diamondhead Real Estate, LLC filed an application for approval of a site in Hancock County, Mississippi. The issue in 2014 and again recently was whether the site borders on the Bay of St. Louis, a legal location under the gaming act, or it borders on a man-made waterway not a part of the bay.

RW Development/MAS filed an application for site approval for a location in Biloxi, Mississippi. At issue with this site, in both 2008 and again recently, was whether the site is adjacent to the Mississippi Sound as required under the gaming act. The critical matter in the decision was whether the mean high water line for purposes of measuring the 800 foot line is where the sand beach meets the water or is it where the seawall was erected in the 1950s. The State of Mississippi owns and controls the public sand beach (and is unwilling to lease the sand beach to third parties); if the mean high water line is where the sand beach meets the water, this applicant could never own or control all the land from the water to the area of the proposed casino floor, a requirement under the act and regulations.

The Commission conducted hearings on the issues on February 16, 2017, and the site applications were set for approval or disapproval by the full Commission at a meeting held on March 16, 2017. Opponents of the sites argued that the post-Hurricane Katrina amendments to the gaming control act were never intended to make these sites legal; approving these two sites would open other additional areas of the Gulf Coast to gaming.

On March 16, after considering the issues in a closed-door executive session for more than an hour and twenty minutes, the Commissioners returned to the public session and received the recommendations of the Executive Director to deny both sites. Without comment, the Commission quickly voted 3-0 to approve the recommendations of the Executive Director. No rationale for the decisions was presented at the meeting.

It remains to be seen if the applicants will appeal the Commission rulings denying approval of the sites. If the Commission’s decisions are appealed, then it will likely be up to the Mississippi Supreme Court once again to determine the future of gaming sites on the Mississippi Gulf Coast.