Following Hurricane Katrina, the Mississippi Legislature amended the Mississippi Gaming Control Act to allow Mississippi Gulf Coast casinos to locate within 800 feet inland of a previous legal gaming site. Then, in December 2020 the Mississippi Supreme Court rendered an important opinion interpreting the legal site provisions of both the Mississippi Gaming Control Act and the Mississippi Gaming Commission regulations.
RW Development (RW) owns property at the intersection of Veterans Avenue and US Highway 90 in Biloxi, Mississippi. RW filed its first application for gaming site approval for the Veterans Avenue property in June 2008. The Mississippi Gaming Commission (Gaming Commission) denied approval, stating that the statute required an 800-foot measurement to commence from the “mean high water line,” which is where the water meets the shore, and not the toe of the seawall; that RW did not own and/or lease property to the shore; and that RW had not shown how the land extending to the south from its property to the mean high water line would be an integral part of the project as required by the Gaming Commission regulations. The Gaming Commission reaffirmed its previously stated position to not allow proposed gaming establishments to be located adjacent to public beaches. RW did not pursue an appeal of the denial.
Eight years later, in June 2016, and again in June 2017, RW filed its second and third applications for gaming site approval for the Veterans Avenue property, and the Gaming Commission denied both applications. RW appealed the two decisions to the Harrison County Circuit Court, which affirmed the Gaming Commission decisions. RW then appealed both cases to the Mississippi Supreme Court, and the Supreme Court combined the two appeals.
On December 10, 2020, the Supreme Court handed down its unanimous decision in RW Development, LLC v. Mississippi Gaming Commission, affirming the Gaming Commission’s decision to deny site approval to RW’s site in Biloxi, Mississippi.
Beyond the practical result of the decision — that the RW site was determined to not be a legal site, three times no less — there are several important points that come from the decision.
1. The Gaming Commission’s Regulations on Gaming Sites Are Valid Exercises of Commission Authority and Lawful Under the Gaming Control Act
Pursuant to authority under the Mississippi Gaming Control Act, the Gaming Commission has promulgated regulations to clarify areas that are legal gaming sites on the Mississippi Gulf Coast. Specifically, the regulations require that a legal site for a gaming licensee must be within 800 feet of the mean high water line, that the point from which the 800-foot measurement is made must be on land owned or leased by the applicant, and that the measurement point must be on land that will be an integral part of the proposed project. The Supreme Court strongly affirmed that these regulations are reasonable under the Gaming Control Act and well within the authority of the Gaming Commission to promulgate.
2. The Mean High Water Line Is Not the Seawall
The Mississippi Supreme Court ruled that the mean high water line and the Gulf Coast seawall are not one and the same at a sand beach location. The Supreme Court determined that the Gaming Commission was correct in interpreting the meaning of the mean high water line to be where the water meets the sand beach and not where the sand beach meets the seawall. The net effect of this is that it would be very difficult for an uplands casino site applicant to own or lease to the mean high water line at a location where there is a sand beach because the beach is owned by the State of Mississippi in trust for the use of its citizens.
3. Littoral Rights of Adjoining Landowners to Use the Sand Beach Are Not Equal to Ownership
The Supreme Court ruled that the requirement of ownership (or lease) of lands to the water’s edge for a legal gaming site is not met by the mere littoral rights of an adjoining landowner to “use” the beach. The Supreme Court ruled that littoral rights are not equal to ownership and that any grant of such ownership rights to an uplands owner would violate the Constitution of the State of Mississippi as an illegal donation.
4. Gaming Commission Decisions Stand if Supported by “Any Evidence” Standard Contained in the Gaming Control Act
The Gaming Control Act is clear: decisions of the Gaming Commission shall stand if such decisions are supported by “any evidence.” While the Supreme Court has upheld previous decisions of the Gaming Commission applying this standard, the Supreme Court in RW Development followed the same path and further held that the RW hearings conducted by the Gaming Commission met due process requirements.
All in all, the RW Development decision was another strong endorsement of the authority of the Gaming Commission to regulate gaming, promulgate reasonable regulations, and apply the statute and regulations in a fair and consistent manner in its licensing processes.