Maximilian sunflower, Illinois Bayou Park, on Lake Dardanelle, near Russellville, Arkansas, September 8, 2022

I’m starting a new series of posts on plants that I find growing in natural surroundings that are not looked after by people.  Some of those may be plants very close to home.  Many will be in other areas.

Helianthus maximiliani

Wikipedia
accessed 9/12/2022

Helianthus maximiliani is a North American species of sunflower known by the common name Maximilian sunflower.

This sunflower is named for Prince Maximilian of Wied-Neuwied, who encountered it on his travels in North America.

Helianthus maximiliani is native to the Great Plains in central North America, and naturalized in the eastern and western parts of the continent. It is now found from British Columbia to Maine, south to the Carolinas, Chihuahua, and California. The plant thrives in a number of ecosystems, particularly across the plains in central Canada and the United States. It is also cultivated as an ornamental.

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The plants in this image project will be from within the bounds of this map, derived from an app called RV Trip Wizard, which represents an “advanced driving radius” around Russellville based on driving 1 hour at an average speed of 55 mph.

I’ve been involved extensively in recent weeks with efforts associated with attempts to bring a casino to our county.  Almost all of what I do is on a Facebook group called Pope County Majority.  In the last 90 days, I have 242 posts there.  While many of those have been shares of related news article, I’ve also created quite a bit of original content.

The casino’s parent organization is Cherokee Nation Businesses (CNB).  They own and operate 10 gaming facilities and a large number of non-gaming interests.  Their only shareholder is the Cherokee Nation which receives 37% of net revenue for funding programs and facilities that benefit the tribe.  The rest of the revenue goes back into CNB for growth and development.  Even though ground has yet to be broken, they have already proven to be a valuable community partner here.

Naturally, there has been – and continues to be – opposition to the casino, primarily from one group who has used a number of different organizational names over the last couple of years: Citizens for Local Choice, Concerned Citizens of Pope County, Citizens for a Better Pope County, Pope County Decides, United Pope County, United for a Better Pope County, United Pope County for Accountability, Fair Play for Arkansas, and, now, Fair Play for Arkansas – 2022.

As Fair Play for Arkansas – 2022, they are running a petition drive trying to get an issue on this year’s general election state-wide that would, if passed,  alter the state constitution to remove the authorization for a casino in our county. They have a Facebook page and a single page website  fairplayforarkansas dot org with a brief description of their allegations opposing the casino and a form for visitors to fill out so for more information.  While they are largely religion based, they are accepting huge financial support from Choctaw Gaming of Oklahoma

One of the things that I’ve done is to co-opt a couple of domain names similar to theirs in the hope that I can steal some of their almost zero traffic and, perhaps, influence some to not sign the petition.

https://fairplayforarkansas.net/ and
https://fairplayforarkansas2022.com/

Dear Honorable Justices,

I had planned to present most of this on Thursday during the public comments at the beginning of the meeting.  However, with the Omicron COVID surge, I’ve decided to not risk a crowded quorum court meeting room.

Perception is everything – your proposed farce of an ordinance.

One of the items on the agenda for the January 6 quorum court meeting was first proposed eleven months ago.  The agenda item says:

Third and final reading of an ordinance requiring a vote of the people in either a general election or special election to either approve or deny the elected official(s)’ support of a casino applicant applying for a casino.

What’s the point?

The application process was declared closed over 18 months ago.

The Pope County casino license has been issued to CNB/Legends.

There will be no new resolutions or letters of support.

Your proposed ordinance serves no legal or practical purpose.

While the proposed ordinance looks legal and sounds legal, it’s not legal.

It’s unconstitutional.  You may think it’s constitutional, but it’s not.

• “The general rule is that an unconstitutional statute, though having the form and name of law, is, in reality, no law, but is wholly void, and ineffective for any purpose;
•   “Such an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.
• “No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 

Sixteenth AMERICAN JURISPRUDENCE. Second Section; § 177

The proposed ordinance requires that Quorum Court refer “the question” to the voters in a local election before the County Judge or the Quorum Court may issue a letter or resolution of support for a casino license as provided under Amendment 100. 

The proposed ordinance is in direct conflict with Amendment 100. Amendment 100 specifies that the authority and discretion to issue letters or resolutions of support lie with the County Judge and the Quorum Court. Amendment 100 does not place that authority or discretion in the electorate of Pope County.

The proposed ordinance states, “The County Judge shall propose a resolution to the Quorum Court to refer to the voters in a local election, either a general election or a special election, the question as to the issuance of a Letter of Support…”

How exactly would that work? “A resolution may be used whenever the quorum court wishes merely to express an opinion as to some matter of county affairs.” (AR Code § 14-14-904)

Perception is everything – it’s a dead horse.

You first proposed this ordinance nearly a year ago.  It’s a dead horse.  Quit beating it!

I’ve never gotten an answer to these questions. I’m pretty sure I know the answer, but I’ll ask them again.

1. Have you asked the Secretary of State’s office whether a vote on authorizing county officials to provide support documents is even feasible under state election laws?
2. Have you asked the Arkansas Election Commission?
3. Did you confer with the county attorney on the legalities of this ordinance?
4. Have you conferred with the prosecuting attorney’s office on the legalities and constitutionality of the ordinance?

I’m pretty sure the answer is “no” to all four questions. 

For 2018-O-42 back in 2019, the answers would have been 1) yes, 2) yes, and 3) yes – I don’t know about # 4. 

The then County Attorney, Clay McCall, was involved with trying to figure out a way to implement 2018-O-42.  Efforts by him and others involved contacting the Secretary of State, Arkansas Election Commission, legal experts, and others.  Through those efforts, they learned there was no way that such an election could be legally conducted.

Your dead horse ordinance would meet the same fate should conditions ever occur where the county would try to implement it in the future.

Perception is everything – This dead horse ordinance is obviously based not-so-loosely on old Ordinance 2018-O-42.

Who was the author?  Was it someone with a legal background? Were any attorneys involved?

From what I understand, the author of 2018-O-42 was Fayetteville attorney Travis Story.  (I haven’t seen his name on filings related to Citizen for a Better Pope County lawsuits for quite a while.  I guess he’s had his hands full with allegations related to his former position on the medical marijuana commission and with defending Josh Dugger.  But that’s probably not germane to this ordinance.)

The license is already issued. 

This ordinance is DOA.

Vote it down.

Please don’t table it again.

Mike Goad
(Dover out voting precinct)

Fifty years ago, after living in Houston and the surrounding area for nearly 5 years, I was leaving, never to return other than for a very few visits.  I was 19, almost 20.

I didn’t plan to never return.  That’s just how life worked out.

I had signed up to join the Navy at some previous date.  Though I didn’t realize it at the time, going in between Christmas and the beginning of the New Year was based on the occupational track I was enlisting for.  It worked out well for me.  While others had temporary duty assignments waiting for one school or another to begin, I stepped through all four stages of my Navy occupation training in sequence, with just enough time for leave and travel between each one.

My journey began at Houston MEPS—Military Entrance Processing Station— at the historic Old U.S. Customs House in the heart of downtown where three or four of us were sworn in as navy recruits. From there, we were transported to the new Houston Intercontinental Airport—opened just 2 1/2 years before—where we would be on flying standby.

Flying standby meant showing up at an airport without a pre-purchased ticket and hoping to get on a flight.  It wasn’t our choice—it was MEPS—and we weren’t paying.  Back then, flights were often far less filled than they are today, so flying standby must have a good option for a federal passenger.  It seemed odd at the time.  It seems odd, looking back at it.

We did get on the flight and a couple of us, at least, ended up in first class.  It was my first flight ever and the only time I’ve ever flown first-class.  Everyone on the flight got food and drinks, of course, but the booze cost extra, except in first-class (The food was probably better in first-class, too).  The drinking age in many parts of the US had been dropped to 18—and it may have been 18 for air flights, though I don’t remember being asked how old I was. I drank enough to be a bit buzzed by the time we got to San Diego.

Our flight had a connection in Los Angeles, then continued on to San Diego.  Along with others arriving from elsewhere, we boarded a bus to the Naval Training Center.  I spent New Year’s Eve and New Year’s Day in the transient barracks.  On January 2, 1972, Boot Camp Company 005, and others, was formed.

1943
Oil on Canvas

Rosie the Riveter, Norman Rockwell’s iconic image of an American woman employed in the production of military hardware, is a powerful reminder of women’s critical contribution to World War II. Pictured at rest during her lunch break, Rosie’s powerful physique projects confidence as she spans the canvas in front of the American flag. This image appeared as a cover of the Saturday Evening Post in 1943. It became a beacon of patriotism as marked by the patriotic badges across the bib of Rosie’s overalls and the tattered copy of Mein Kampf that lies crushed under her foot. (Exhibit signage)

I was at Lowes today to get some concrete mix and, as often happens, was blocked from being able to back up to the pallets so I could get loaded. I think these guys were just a “tad” overloaded.

This visualization is dramatic.  It only goes to the end of September when cases were dropping.  Since we are in another wave, methinks the red curve is rising again.

Dustin McDaniel and Racing Commission

On March 9, 2021, Gulfside Casino Partnership filed for judicial review of a decision by the Arkansas Racing Commission that Legends Resort and Casino, LLC, was a qualified casino applicant.

With all the cases I was watching, I missed looking closely at one of them.  Nothing had happened in it since August and the main event in all the litigation was the case that went to the Arkansas Supreme Court,  60-CV-19-5832, Gulfside  Casino Partnership v. Arkansas Department of Finance.

The new case, 60-CV-21-1653, asks for a judicial review of the Racing Commission’s finding that Legends demonstrated experience conducting casino gaming.  Gulfside claims it was injured by the Racing Commission’s decision, as Legends seeks to take away Gulfside’s casino gaming license, even though Legends fails to meet a minimum requirement imposed by Amendment 100.  (Interestingly, the license wasn’t actually awarded to Gulfside until the end of July.)

On October 21, 2021, in Gulfside  Casino Partnership v. Arkansas Department of Finance, 60-CV-19-5832, the Arkansas Supreme Court reversed and dismissed Judge Tim Fox’s order of May 7, 2021.  In that order, Judge Fox determined that a portion of a casino gaming rule and that part of an Arkansas law were unconstitutional.  Both of these stipulate that required local documents expressing support for the application be from current local officeholders. Gulfside’s support documents came from previous officeholders.  If Judge Fox’s order was upheld, then those documents would be valid.  Since the Supreme Court reversed and dismissed the case, Gulfside’s support documents are invalid as is their license.

Gulfside had 18 calendar days to file a petition for a rehearing. The end of that period was end-of-day on 11/8/2021.  They did not file a petition for a rehearing.  That afternoon they did, however, file new motions in 60-CV-21-1653 regarding their allegations of Legends’ lack of experience in casino gaming.

On the morning of 11/9/2021, the Arkansas Supreme Court issued a mandate, making the decision final, with the mandate to be mailed to Judge Fox’s court.

The only remaining litigation for Gulfside is 60-CV-21-1653.

The Racing Commission, per the Casino Gaming Rules, had accepted Legends as a qualified applicant at least twice before this litigation (request for judicial review) was filed.

After the litigation was filed, on July 30, 2020, a hearing  was held “In the Matter of Gulfside Casino Partnership Request for Determination Regarding Legend Resort and Casino LLC Applicant Status Under Amendment 100.”  The following partial transcript is from that hearing:

MR. MCDANIEL: Then in August we resubmitted again, under the name of CNB. And then in September there was a back-and-forth between Mr. Freeland, with whom I have spoken a couple of times this week, and I have been very clear to say, Mr. Freeland, if I cite our conversations, would it be fair to say this, or fair to say that?

He’s here, so if I in any way unfairly cite our conversations, I’m sure he will correct me.

But at the time there was a discussion among the Commission, the Chair, especially, and counsel, Mr. Freeland, about sovereign immunity of Quapaw Nation and Cherokee Nation, as applicants, and also the Choctaw Nation, which was, had an application in the mix somewhere.

And so there were sovereign immunity waivers that circulated back and forth between the lawyers at that time, and apparently the decision was made that the comfort level of the Commission and of all of the lawyers involved would be for the Quapaw Nation to transfer their license to a newly formed LLC called Saracen Resort, LLC.

They created that pursuant to your rules. They came in front of you. Saracen Resort, LLC is just like Legends. It’s a brand new formed Arkansas LLC. And the determination was made by your counsel and yourselves that it qualified, met every qualification, and you transferred the license over to Saracen.

Subsequent to conversations with that, the question arose, Well, do you want us to do that on our application as well, and the answer was, Yeah, that would be appropriate.

So we formed a new LLC that would be purely an Arkansas holding LLC, no risk of sovereign immunity issues popping up at anytime in the future, and we resubmitted our application not in January, but rather in November, November the 15th. And then it was resubmitted again in January.

So it was done purely in cooperation with and coordination with this, this Commission and your counsel. I would submit that the law is rather clear, that no LLC in and of itself has experience. Procurement law is guiding in this.

Whether it is federal contracting, construction, or mortgage lenders, or any other licensed entity, it is clear that you can’t just start a CPA LLC and say, I’m now a CPA because I have an accounting LLC. You have to have an accountant that has experience who manages that LLC, and then that’s where you get the experience.

So you have twice considered whether or not we demonstrate, according to the constitution, “demonstrate” means have. No part of the constitution redefines “demonstrate” or “have.” It doesn’t redefine any of our corporate law or modify any of our corporate law.

You have twice said that there is good cause to accept the CNB Legends LLC application, and that wouldn’t have happened if your counsel and you had not determined we qualified as applicants.

So I appreciate Mr. Castleberry making a record on this. I’m sure that we will all hear about it again later in our lives, but for today, I am certainly happy to answer any of your questions, but I would ask that you affirm your previous findings, that Legends LLC is a qualified applicant.

VICE CHAIRMAN LAMBERTH: Thank you, Mr. McDaniel. Questions, comments from the Commissioners for Mr. McDaniel?

Mr. McDaniel, the principals for Legends, Cherokee Entertainment, CNB are they the same?

MR. MCDANIEL: All the exact same, yes, sir. Each one of them were provided to you in our application. There are background checks photographs, thumbprints, curriculum vitae, experience level. Legends Resort, LLC has no executives.

VICE CHAIRMAN LAMBERTH: Mr. Hunter?

COMMISSIONER HUNTER: Yes, sir. You mentioned the sovereign immunity question. Are there any other reasons, or is that one simple, one simple reason for the change?

MR. MCDANIEL: I was not involved, Mr. Hunter, in the discussion between Mr. Lieblong, Mr. Freeland, and the Quapaw, no I don’t really know what initiated that thinking at the time. But once it had been decided and determined, Hey, that’s how we want them to do it, we, we certainly had no objections. There is no corporate reason in the world not to have a holding company in any given state where you have a license, so we were perfectly happy to do it.

COMMISSIONER HUNTER: Thank you.

VICE CHAIRMAN LAMBERTH: Did the LLC created for Saracen — and this may be a question for Mr. Bowen or Mr. Freeland — did the, did the LLC for Saracen come before or after they had been given a license?

MR. MCDANIEL. It was after. I can answer that. They were, they were given a license, I believe, in May, and then it was transferred, but the requirements for licensure and transfer are the same.

VICE CHAIRMAN LAMBERTH: So the Saracen LLC was created after that, after the license was awarded?

MR. BOWEN: I’m looking back at former counsel, who is — this was a little bit before our time, before I think the Attorney General’s office came in, and it’s my understanding that it was created after.

MR. FREELAND: That Is a correct statement.

MR. BOWEN: Okay.

VICE CHAIRMAN LAMBERTH: Any further questions or comments for Mr. McDaniel? Hearing none, what is the pleasure of the Commission? Do I have a motion?

COMMISSIONER HUNTER: I move that we affirm the finding that Legends Resort and Casino is a qualified casino applicant.

VICE CHAIRMAN LAMBERTH: A motion has been made by Mr. Hunter. Do I have a second?

COMMISSIONER LANDERS: Second.

VICE CHAIRMAN LAMBERTH: Second by Mr. Landers. Any further discussion? All in favor say “Aye.”

COMMISSIONERS: Aye.

VICE CHAIRMAN LAMBERTH: Opposed?

(No audible response.)

VICE CHAIRMAN LAMBERTH: Motion carries. Thank you.

Conclusions Of Law — February 2, 2021

• Amendment 100 requires that an applicant “demonstrate” experience in casino gaming. The sole owner and manager of Legends — CNB — operates ten (10) casinos in Oklahoma through its wholly owned subsidiary CNE.
• The business structure adopted by CNB/Legends is expressly authorized by the Casino Gaming Rules (see Casino Gaming Rule 15) and Amendment 100.
• CNB/Legends is a qualified applicant based on the knowledge, experience and expertise of any corporation or LLC is derived from its owners, members, managers, and executives.
• For these reasons, the ARC finds that Legends has demonstrated casino gaming experience as required by Amendment 100, § 4(m) and therefore is a qualified applicant.

Other things I’ve found

The counsel for the Racing Commission, who is the defendant in the case, is the Attorney General’s office. They have already said in previous filings in the case:

• Gulfside lacks standing under the Administrative Procedures Act
• Gulfside fails to allege, as is required, a “proper” injury.
• The Court (Fox) lacks subject matter jurisdiction
• The Racing Commission is entitled to sovereign immunity (you can’t sue the state except as specifically allowed by law)

CNB has said in previous filings in the case:

• Gulfside lacks standing because it is not a qualified applicant
• The resolution of Gulfside’s claim does nothing to change its current condition.
• Gulfside cannot show an immediate concrete injury that will be redressed by the relief question

At this point, as a former applicant, Gulfside has no current legal interest in the casino gaming license. As Dustin McDaniel has written, “Gulfside has no standing to challenge the qualification of any entity applying for a casino gaming license.”

Dear Pope County Quorum Court JPs,

It appears that some of you may misunderstand the provisions of Amendment 100, the Arkansas Casino Gaming Rules, and the Economic Development Agreement (EDA) between Pope County and Cherokee Nation Businesses.  I hope that you read this and give it your full attention, though I suspect that some will not.  I have published this on my blog and shared it elsewhere as an open letter to the Quorum Court.

Last Thursday, the quorum court passed a resolution that included,

Whereas, by rescinding his letter of support for the sole remaining applicant, Judge Cross has the power to end current litigation and offer conclusion to the embarrassing process that has plagued Pope County and its citizens for the past three years;

Now therefore, be it resolved by the Quorum Court of Pope County that Judge Cross should immediately rescind his letter of support for Legends Resort and Casino, LCC

In 2020, Judge Cross’s letter of support was submitted to the Racing Commission as part of a casino application from Cherokee Nation Businesses (CNB) and Legends Resort & Casino, LLC.  That application was accepted on April 15, 2020, for “good cause shown.” The application process was closed by the Racing Commission on July 21, 2020.

Judge Cross could write a letter to the Racing Commission rescinding his letter of support.  However, it would be a futile effort.  The judge’s letter of support is part of an application that has been accepted.  To rescind that letter, that application would have to be amended.  Judge Cross rescinding the letter would not change the application and would have no impact on current litigation, most of which is moot and will end soon because of the Supreme Court ruling.

Neither CNB nor the Racing Commission will be likely to want to amend the application.  CNB would certainly oppose such a move.

There is nothing in the Casino Gaming Rules that provides for amending, revising, or changing applications that have been submitted by the applicant nor for those that have been accepted by the Racing Commission.  Amending, revising, or changing an already accepted application would require a rule change, a process that I doubt the Racing Commission has any motivation to pursue.

Whether or not Judge Cross rescinds his letter – and we already know he will not – the resolution was futile and moot from the onset because it would not bear the fruit that was desired.  We all knew he would not rescind the letter before the resolution was even brought up in the meeting and, even if he did, it would have no impact on an already accepted license application.

On October 21, 2021, Cherokee Nation Businesses CEO, Chuck Garrett, said, “We also look forward to delivering on the $38.8M Economic Development Agreement executed with Pope County, which will allow communities to invest in police, fire, and other infrastructure projects while the casino resort is under development.”

In an email response to a county resident, one  JP referred to one part of the EDA and wrote, “A license was issued.  It looks like the EDA is null at this point.”

The part of the EDA that was referred to is “6.3 – Termination.” One of the occurrences it cites as grounds of termination is a license being awarded to someone else. That section also says, “…, this Agreement shall terminate upon the occurrence of any of the following, and upon notification of such occurrence by Operator to County.” The operator, of course, is CNB, who has never viewed the Gulfside license as valid and who has always intended to honor their commitments to Pope County in the EDA and otherwise.  CNB, obviously, has not notified the county of the issuance of a license to Gulfside nor have they used that license as grounds  to “get out of the EDA.” They have higher standards than that.

Without a support document from Judge Cross and, earlier, the resolution from the quorum court, CNB would not have been in a position to appeal the first Gulfside judgments in Judge Tim Fox’s court on March 24, 2020.  Since the Racing Commission did not appeal that case and they didn’t care about a local county ordinance (2018-O-42), Gulfside would have been issued a license in late Spring 2020.  The construction of the first phase of their casino would probably be nearing completion.

If Judge Cross were to rescind his letter, it would have zero impact on the status of the pending issuance of a casino license to Legends Resort and Casino Arkansas, LLC and Cherokee Nation Businesses. It would, however, likely constitute a breach of contract, abrogating the county’s contractual obligations under the EDA.  It could expose the county to litigation from CNB, while CNB would have the casino license and could build the casino without having to honor the commitments of the EDA.  That would result in a hostile environment between CNB and local officials that no one should welcome, though I recognize some would.

We keep getting reminded that the people of Pope County are against the casino.  Ironically, I have had few conversations with anyone adamantly against the casino.  I have talked to more people who are in favor of Legends Resort & Casino Arkansas.  I have also talked to a number of people who voted against the amendment in 2018, some because we were not given a choice about being one of the four locations, but who are now for the casino.

Ordinance 2018-O-42 passed by 68.07% to 37.93% but was subsequently repealed by the quorum court and ruled unconstitutional the day after that repeal.  On the same day that the ordinance was passed, Amendment 100 was passed by a statewide vote of 54% to 46%.  Pope County voted against it 61% to 39%.  I believe I voted for both measures, though, like many, I certainly did not understand the measure for poorly written ordinance 2018-O-42.

That was a one-day legal snapshot of public opinion. Even though it is used so, that does NOT mean that the people of Pope County are against the casino today.  There have been several unofficial surveys and polls that indicate the opposite, though I, personally, place little faith in surveys and polls.

A poll on Sass & The Bear currently has 154 votes: 93 say Legends Casino (CNB); 35 voted  Hard pass. No casino;  No preference / Undecided got 21 votes; Gulfside got 5.

The reliance on a snapshot of a 2018 election is worse than most reliance on polls and surveys.  Today, that would be like relying on a poll from 2018 for a primary election in 2022.

I’m not a casino person. I’ve never been to a show in a casino. I drink rarely and haven’t been in a casino in over three years.  At that time we were in Las Vegas and stopped at one casino. We ate in the buffet, did some shopping and I lost $25 in the slots.  My actual interest in the casino is the positive impact it will have for our region.

I believe that the casino will be the catalyst for significant positive change for our area.  We will see new businesses, new opportunities, and new investments in the area.  As I said in a recent TV news interview, “We won’t be like Northwest Arkansas, but we also won’t be like the Pope County of today.”

For those who have read this far and considered what I have to say, thank you.

Mike Goad

(I am not a lawyer and what I have written here is my layman’s understanding of conditions and circumstances.)