In the Matter of the Minnesota Racing Commission’s Approval of Running Aces Casino, Hotel & Racetrack’s Request to Amend its Plan of Operation.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1738

In the Matter of the Minnesota Racing Commission’s Approval of Running Aces Casino,
Hotel & Racetrack’s Request to Amend its Plan of Operation.

Filed September 23, 2024
Affirmed
Ross, Judge

Minnesota Racing Commission

Richard A. Duncan, Joshua T. Peterson, Allison J. Mitchell, Faegre Drinker Biddle &
Reath LLP, Minneapolis, Minnesota; and

Greg Paulson, Brodeen & Paulson PLLP, New Brighton, Minnesota (for relator Shakopee
Mdewakanton Sioux Community)

Keith Ellison, Attorney General, Ryan Pesch, Cory J. Marsolek, Assistant Attorneys
General, St. Paul, Minnesota (for respondent Minnesota Racing Commission)

Erica Holzer, Evan A. Nelson, Maslon LLP, Minneapolis, Minnesota (for respondent
Running Aces Casino, Hotel & Racetrack)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Kirk,
Judge.
∗
NONPRECEDENTIAL OPINION
ROSS, Judge
Running Aces Casino, Hotel & Racetrack successfully petitioned the Minnesota
Racing Commission for permission to amend its floor plan to add an electronic dealer table

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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linked to blackjack and baccarat player stations that allow patrons to play against the dealer.
Relator Shakopee Mdewakanton Sioux Community challenges the commission’s approval
in this certiorari appeal, arguing that the decision exceeds the commission’s regulatory
authority, unlawfully allows Running Aces to operate gambling devices and video games
of chance, and unlawfully allows Running Aces to operate a number of tables that exceeds
the statutory limit. The community argues relatedly that the commission’s decision was
arbitrary and capricious and rested on an unpromulgated rule. We reject the commission’s
and Running Aces’s contention that the community lacks standing to challenge the
commission’s decision and decide the appeal on substance. Our review of the
commission’s quasi-judicial decision on the merits leads us to affirm the commission’s
decision.
FACTS
The dispute in this certiorari appeal arises from relator Shakopee Mdewakanton
Sioux Community’s allegations about restricted gambling venues known as “card clubs,”
which are entities that may, within statutory limits, operate tabled “card playing” to
generate revenue to support the facility’s horse-racing and breeding industries. See Minn.
Stat. § 240.01, subds. 4, 5 (2022). The gambling activities are statutorily constrained and
administratively regulated. To allow Minnesota racetracks to mitigate financial challenges,
the legislature authorized them to operate card clubs on their premises, permitting games
like blackjack, poker, and baccarat. Minn. Stat. §§ 240.07, subd. 3(b), 240.30, subd. 1
(2022). To police racetrack gambling activity, the legislature established the respondent
nine-member Minnesota Racing Commission, which issues racetrack and betting licenses
3
and regulates the horse-racing and betting operations. Minn. Stat. §§ 240.02–.03, 349.11–
.61 (2022).
Particularly at issue here, racetracks, including respondent Running Aces Casino,
Hotel & Racetrack, may not operate “video games of chance” or “gambling devices,” and
they may employ only up to 80 “tables used for card playing at the card club at any one
time.” Minn. Stat. §§ 240.30, subd. 8(1), 299L.07, subds. 2a, 2b, 609.75, subds. 4, 8 (2022).
Running Aces operates a racetrack and card club in Columbus, Minnesota. Running Aces
incorporated electronic tables into its plan of operation to supplement its horse-racing
purses and improve attendance. It petitioned the commission in 2017 to approve a new type
of electronic table manufactured by Interblock, a supplier of electronic table gaming
products. Unlike traditional card tables, Interblock’s product includes an electronic video
interface linking a dealer with players. Interblock’s electronic table games (ETGs) involve
dealers stationed at a table equipped with a camera and card-recognition technology. Each
linked player sits at her own electronic table, called a “player station,” apart from the dealer
and other players. The surface of each player station is a video touch screen. To begin each
card game, the dealer deals a set of cards required for the type of game, and the dealer-
table camera and card -recognition technology capture the image of the dealt cards and
display both a camera image and a digital image of those cards on each player’s touch -
screen surface. Players place bets and indicate their game-playing decisions using their
touch screens. A player also indicates when she has ended her session using the screen, and
an attendant will verify the amount won and print a voucher that the player present s to
collect her cash winnings.
4
The commission approved Running Aces’s 2017 plan to implement the ETGs into
its operations, “with the understanding that the card games will be played ‘live’ without
the use of a random number generator.” Running Aces sought the commission’s approval
to make incremental changes to its floor plan, with varying success. For example, in 2018
it successfully asked the commission to authorize an increase in the number of player
stations assigned to each dealer table from 7 to 11. Three years later, it unsuccessfully
sought the commission’s approval to increase that number from 11 to 30.
This case arises from Running Aces’s May 2023 proposal to again amend its floor
plan. The plan existing at the time of the 2023 proposal allowed 60 traditional card-playing
tables with 7 player seats at each table, 14 other traditional tables in the atrium with 9 player
seats at each table, and 3 Interblock dealer ETGs with 11 player stations per dealer table.
The 2023 proposal sought to modify that plan by adding one dealer ETG, which, when
combined with the existing arrangement, would result in a configuration with one “Stadium
Three Card Poker” dealer ETG serving its 11 player stations, one “Aces Live 5 Card Draw
Poker” dealer ETG serving 11 player stations, and one “Multi Hand Blackjack” dealer ETG
and one Baccarat dealer ETG, each se rving 11 player stations (so that each player at any
of these 11 stations could choose whether to play blackjack or baccarat). In total, with the
additional requested dealer ETG and player stations, the newly configured arrangement
would result in a total of four dealer ETGs linked to 33 player stations, 60 traditional card-
playing tables, and 14 poker tables. The Shakopee Mdewakanton Sioux Community sent a
letter to the commission and submitted written arguments objecting to the requested
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amendment, asserting that ETGs constitute gambling devices and video games of chance
and that the request would result in exceeding the statutory 80-table limit.
The commission members voted to approve Running Aces’s requested amendment.
The commission memorialized its decision in an October 2023 letter to Running Aces,
stating that the commission conditioned the approval on the card games being played live
and without the use of a random-number generator. The community has challenged the
commission’s decision in this certiorari appeal.
DECISION
The Shakopee Mdewakanton Sioux Community appeals from the commission’s
approval of Running Aces’s 2023 amended floor plan. It argues that the approved plan
illegally permits Running Aces to operate gambling devices and video games of chance
and allows the racetrack to operate tables exceeding the statutory 80-table limit. The
community also argues that the commission’s decision is arbitrary and capricious and that
the commission based the decision on an unpromulgated rule. The commission and
Running Aces counter, arguing that the community lacks standing to challenge the floor-
plan approval and, alternatively, that the community’s arguments fail on the merits . We
first address the question of standing, and we then address the dispute in substance.
I
We have carefully considered the question of standing, and we conclude that the
community has standing to challenge the commission’s decision. Standing is a
jurisdictional prerequisite requiring our de novo review. Scheffler v. City of Anoka, 890
N.W.2d 437, 451 (Minn. App. 2017), rev. denied (Minn. Apr. 26, 2017). A party has
6
standing when it has “a sufficient stake in the controversy to seek relief from the court.”
Webb Golden Valley, LLC v. State, 865 N.W.2d 689, 693 (Minn. 2015). A party’s mere
participation in agency proceedings does not confer standing to appeal. In re Pappas Senate
Comm., 488 N.W.2d 795, 798 (Minn. 1992). A party instead has standing either when it
has suffered an injury-in-fact or when it is “the beneficiary of some legislative enactment
granting standing.” Lorix v. Crompton Corp. , 736 N.W.2d 619, 624 (Minn. 2007). The
community argues that it has suffered an injury-in-fact based on its status as an economic
competitor to Running Aces and based on its (and other tribes’) exclusive legal right to
operate video games of chance and gambling devices in the state.
The alleged violation of its right to be free of competition (and the presumed
consequential lost revenue) is the economic harm the community identifies as the basis for
its standing to challenge the commission’s decision. Lost revenue from competition is an
injury that can confer standing in a limited circumstance. The Supreme Court has explained
that “economic injury [that] results from lawful competition cannot, in and of itself, confer
standing on the injured business to question the legality of any aspect of its competitor’s
operations.” Hardin v. Kentucky Utils., 390 U.S. 1, 5–6 (1968). Instead, “the injured
competitor has standing to require compliance with that provision” only if the statute giving
rise to the dispute “reflect[s] a legislative purpose to protect a competitive interest. ” Id. at
5. The state supreme court applied this principle and determined that standing existed in
Twin Ports Convalescent, Inc. v. Minnesota State Board of Health, a case in which the
challenger similarly asserted that an injury-in-fact resulted from business competition. 257
7
N.W.2d 343 ( Minn. 1977). The reasoning in Hardin and Twin Ports satisfies us that the
community has standing here.
The challenger in Twin Ports provided emergency ambulance service in the same
geographic area to be served by a newly licensed competitor. Id. As in this case, the Twin
Ports challenger’s “only interest” in the underlying decision contested on appeal and its
basis for asserting standing was “in keeping down the number of competitors.” Id. at 346.
The supreme court determined that the company providing the existing ambulance service
had standing to challenge the licensure because the applicable statute was designed
uniquely to resist competition. Specifically, the Twin Ports court agreed with the
challenger’s arguments that the operative statute recognized “the inelastic demand and
fixed costs characteristic of the ambulance service business” and “was intended to preserve
the quality of service offered to the public by protecting existing services from
competition.” Id. at 346, 348. The supreme court’s finding of a legislative purpose in favor
of reducing competition is the premise that allowed the Twin Ports appellants to show
injury-in-fact:
We interpret Minn. [Stat. §] 144.802 to manifest a legislative
intention to protect the public welfare against deleterious
competition in the ambulance services field. The provision
embodies a legislative determination that the ambulance
service business is one in which the public welfare is not
promoted by free enterprise.

Id. at 348. In other words, in keeping with the principle established in Hardin, the Twin
Ports challenger had standing to contest a municipal decision allowing the competitor into
the market and disrupting the challenger’s ambulance-service monopoly because the
8
statute regulating ambulance service reflected a legislative purpose to protect the
challenger’s competitive interest.
We have reviewed the statutory scheme to consider whether the legislature has
exhibited a preference about competition in gambling involving the alleged type of devices
at issue in this case. For the following reasons, we have found such a preference, albeit
indirectly, and it supports the community’s standing.
The community’s authority to engage in gambling operations in the state has its
origin in the federal recognition of tribal sovereignty. In 1988 Congress enacted the Indian
Gaming Regulatory Act, Pub. L. No. 100-497, 102 Stat. 2467 (1988), after it found that
“existing Federal law does not provide clear standards or regulations for the conduct of
gaming on Indian lands” and that “Indian tribes have the exclusive right to regulate gaming
activity on Indian lands if the gaming activity is not specifically prohibited by Federal law
and is conducted within a State which does not, as a matter of criminal law and public
policy, prohibit such gaming activity.” 25 U.S.C. § 2701(3), (5) (2018). The federal
directive that states must honor tribes’ “exclusive right to regulate” gambling on their own
lands is not itself a federal mandate that a state must grant tribes an exclusive right to
operate specific types of gambling facilities within the state. B y directing states to enter
compacts authorizing tribes to regulate only those gambling activities that are not
prohibited by the state’s criminal law and public policy, the federal mandate arguably
presumes that gambling on the various tribes’ land may face competition within the state.
But we see a preference regarding gambling operations in the state legislation that
arose from the Indian Gaming Regulatory Act. The act authorizes states to enter into
9
compacts with tribes to designate allowable gaming activity on their lands. 25 U.S.C.
§ 2710 (d)(3)(A) (2018). Based on that federal authorization, in 1989 the Minnesota
Legislature began authorizing the governor to negotiate tribal-state gaming compacts with
the several Indian tribal governments. 1989 Minn. Laws ch. 44. That same year the state
and the community executed the “Tribal- State Compact for Control of Class III Video
Games of Chance on the Shakopee Mdewakanton Sioux Community Reservation in
Minnesota.” The compact recognized that the community had been operating various forms
of gambling since 1982 and declared the primary purpose of the compact: “to provide the
Community with the opportunity to operate video games of chance in a way that will
benefit the Community economically.” Two years later in 1991, the state and the
community executed a similar compact governing the community’s control of Class III
Blackjack gaming on the community’s reservation, with the identical purpose “to provide
the Community with the opportunity to offer Blackjack in a way that will benefit the
Community economically.” The compacts include detailed regulatory standards for the
operation and oversight of the games, focused substantially on ensuring fair play and the
integrity of the gambling processes.
Although the compacts themselves do not imply a competition-restrictive
environment for the gambling forms that they cover, the corresponding statutory scheme
does. The legislature has made gambling a crime except to the extent it expressly allows
gambling by statute. See Minn. Stat. §§ 609.75–.763 (2022). The allowed forms of
gambling are few, well defined, and highly regulated. For example, the state operates a
lottery. See Minn. Stat. §§ 349A.01–.20 (2022 & Supp. 2023). Nonprofit organizations
10
may organize and sponsor pull-tabs, bingo, and raffles. See Minn. Stat. §§ 349.13, 349.16,
subds. 1, 2. Licensed racetracks may conduct parimutuel wagering on horse races as well
as operate card clubs featuring card games such as blackjack and poker. See Minn. Stat.
§ 240.30 (2022). Card clubs are effectively prohibited from operating “gambling devices,”
not just because they are not affirmatively authorized to operate them but because
distributors may sell them only to federally recognized Indian tribes (and other entities not
relevant here). See Minn. Stat. § 299L.07, subds. 2a, 2b. And the community has entered
into the compacts referenced above, allowing them to operate casinos not only with card
games but also with “gambling devices” and “video games of chance.” This legislative
framework that invites competition in card-game gambling but not in gambling-device
gambling or video-game gambling leads us to conclude that the state has afforded the
community a limited, legally cognizable, competition-restricted environment similar to the
interest that established standing in Twin Ports.
We therefore hold that the community has standing to contest the commission’s
decision because the decision potentially harms the community’s market-restricted interest
in operating gambling devices and video games of chance.
We are not persuaded otherwise by our decision in In re Dakota
Telecommunications Group, a case in which we held that the owner of a cable television
franchise lacked standing to challenge a city’s decision to grant a franchise to a potential
competitor. 590 N.W.2d 644, 648 (Minn. App. 1999). The challenger in that certiorari
appeal, like the community in this certiorari appeal, claimed that its injury-in-fact was its
potential loss of market share resulting from business competition. Id. at 648. But no
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language in the underlying federal statute regulating cable -television franchises in local
markets protected existing cable companies from losing profits to competition, a s the
statute instead encouraged competition. Id. at 647–48. For that reason we held that the
challenger company “has not asserted a legally cognizable injury sufficient to establish
standing.” Id. at 648 (referencing Minn. Stat. §§ 238.01–.43 (1998); 47 U.S.C. §§ 521–573
(1994 & Supp. 1996)). The statutory scheme underlying this case therefore differs
substantially from Dakota Telecommunications, in that here, a legislatively created
restrictive market exists. Having concluded that the community has standing to challenge
the commission’s decision, we turn to the substance of its challenge.
II
The community argues that the commission made an error of law and exceeded its
authority by authorizing Running Aces’s use of ETGs, specifically contending that ETGs
are gambling devices, that they are video games of chance, and that their use exceeds
Running Aces’s 80 card-table limit. Our standard of review lies in the common law.
Because the commission investigated Running Aces’s request to amend its plan of
operation, weighed facts, applied the law to those facts, and issued a binding decision, the
commission acted in a quasi-judicial matter. See Minn. Ctr. for Env’t Advoc. v. Metro.
Council, 587 N.W.2d 838, 842 (Minn. 1999). The “[c]onstitutional principles of separate
governmental powers require that [we] refrain from a de novo review of administrative
decisions.” Dokmo v. Indep. Sch. Dist. No. 11, Anoka -Hennepin, 459 N.W.2d 671, 674
(Minn. 1990). We will uphold an agency’s quasi -judicial decision unless it is
“unconstitutional, outside the agency’s jurisdiction, procedurally defective, based on an
12
erroneous legal theory, unsupported by substantial evidence, or arbitrary and capricious.”
Carter v. Olmsted Cnty. Hous. & Redevelopment Auth., 574 N.W.2d 725, 729 (Minn. App.
1998). The commission’s decision survives under this deferential standard for the
following reasons.
ETGs as Alleged Gambling Devices
The community contends that the commission’s approval i mproperly allows
Running Aces to operate gambling devices. We clarify at the outset our limited scope of
review. Although the community wrote the commission to challenge Running Aces’s
proposed 2023 plan amendment by asking the commission to “revoke its prior approval of
the Interblock [ETG] table game for lack of statutory authority,” the commission
considered and decided only Running Aces’s proposed amendment to its then-existing
floor plan. Because the commission did not entertain the community’s 2023 request to
revisit the commission’s un-appealed 2017 approval of ETG use at Running Aces, the
validity of that 2017 decision and subsequent revisions are not before us in this certiorari
appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that reviewing
court must generally consider only issues previously considered and decided); In re
Expulsion of A.D., 883 N.W.2d 251, 261 (Minn. 2016) (applying Thiele rule in appeal from
agency decision). The issue the commission faced when it decided Running Aces’s
proposed amendment concerned the addition of one “dealer assist” ETG unit with
corresponding player stations. We therefore address only the commission’s 2023 plan
approval— specifically the addition of one ETG dealer table and 11 corresponding player
stations.
13
The community argues that ETGs are gambling devices under the d efining statute
and that the commission acted unlawfully and exceeded its authority by allowing Running
Aces to add another ETG to its floor plan. “A gambling device is a contrivance the purpose
of which is that for a consideration a player is afforded an opportunity to obtain something
of value, other than free plays, automatically from the machine or otherwise, the award of
which is determined principally by chance, whether or not the contrivance is actually
played.” Minn. Stat. § 609.75, subd. 4. The definition also includes any “video game of
chance.” Id. The first element of the statute is a redundancy, since “device” and
“contrivance” are essentially synonyms. A device is “a contrivance or invention serving a
particular purpose, especially a machine used to perform one or more relatively simple
tasks,” while contrivance is, “[s]omething contrived, as a mechanical device or a clever
plan.” The American Heritage Dictionary of the English Language 496, 400 (5th ed. 2018)
(emphasis added). The legislature offers some guidance to determine whether the
challenged ETGs are gambling device s by defining “associated equipment ” as
distinguished from gambling devices and providing examples: “ Associated equipment
means any equipment used in connection with gambling that would not be classified as a
gambling device, including but not limited to: cards, dice, computerized systems of betting
at a race book or sports pool, computerized systems for monitoring slot machines or games
of chance, devices for weighing or counting money, and links which connect progressive
slot machines.” Minn. Stat. § 609.75, subd. 4a (emphasis added).
Based on the record and one of our nonprecedential opinions considered by the
commission before it approved Running Aces’s use of ETGs in 2017, the commission did
14
not act unlawfully and did not exceed its authority by concluding that the additional ETG
qualifies as equipment associated with both card playing and gambling, i.e., “associated
equipment,” rather than a “gambling device.” For starters, “card playing,” by statutory
definition, does not require the use of physical cards:
‘Card playing’ means an activity wherein individuals wager
utilizing a 52- unit system comprised of a series of numbers,
numbered two through ten, and the letters J, Q, K, and A,
combined with four symbols commonly known as hearts,
diamonds, spades, and clubs, wherein each individual unit
constitutes the display of one of the 52 possible combinations.
The symbol commonly known as a joker may be incorporated
into the system.

Minn. Stat. § 240.01, subd. 5. And the record before the commission in 2017 indicated that
ETGs are essentially electronic viewing devices that allow the gambler to see the cards
(both in photographic and digitized form) that the dealer has dealt, and that allow the
gambler to communicate her responsive playing or betting choices by touching options on
a screen rather than by physically moving chips or cards or announcing the choices to the
dealer audibly. The commission was informed that the only chance element in a game
played using the ETG system lies in the distribution of the actual cards dealt physically by
the dealer and the player’s corresponding choices, not in any device-based, automated,
algorithmic software. The commission received evidence that the ETG system simply
facilitates the gaming interaction between the dealer and the player. It includes both a
“computerized system of betting” and a “computerized system for monitoring” the dealer’s
activity, mirroring two of the legislature’s examples of “associated equipment.” Minn. Stat.
§ 609.75, subd. 4a.
15
The understanding that a dealer -assisting ETG system constitutes equipment
associated with gambling rather than a gambling device finds support in the reasoning of
our 2013 nonprecedential opinion in In re Request of North Metro Harness Initiative, LLC,
No. A13-0033, 2013 WL 4711204 (Minn. App. Sept. 3, 2013). See Dynamic Air, Inc. v.
Bloch, 502 N.W.2d 796, 800–01 (Minn. App. 1993) (observing that unpublished opinions,
although not precedential, may offer persuasive reasoning). In Metro Harness, we
concluded that substantial evidence supported the commission’s decision to reject a request
to allow Running Aces to use an electronic device called “Table Master,” because Table
Master was “a fully automated machine.” 2013 WL 4711204, at *6. In doing so, we
contrasted the Table Master with a system named “iTable” and concluded that “[t]here is
nothing inconsistent about [the commission] authorizing North Metro’s use of the iTable
but not Table Master.” Id. We reached this conclusion by distinguishing the authorized
iTable from the unauthorized Table Master, describing the iTable as “an accessory to a
blackjack game involving a human dealer.” Id. And when the commission in 2017
authorized the use of the type of ETG at issue here, it did so after it received evidence and
argument from Running Aces that ETG tables operate as “Dealer Assist Gaming, like the
iTable” because an ETG is merely “an accessory to the blackjack game and not an
automated gambling device.” We believe that our reasoning in Metro Harness is both
sound and persuasive, and the record confirms that the commission relied on the Metro
Harness decision in 2017 when it originally authorized ETG use. Under these
circumstances, we do not believe that the commission acted unlawfully or exceeded its
16
authority by declining to treat the proposed additional ETG as a “gambling device” and by
allowing its addition to Running Aces’s operation.
ETGs as Alleged Video Games of Chance
The community relatedly contends that the commission exceeded its lawful
authority by failing to conclude that ETGs are video games of chance. The legislature
defines a “video game of chance” as “a game or device that simulates one or more games
commonly referred to as poker, blackjack, craps, hi-lo, roulette, or other common gambling
forms, though not offering any type of pecuniary award or gain to players.” Minn. Stat.
§ 609.75, subd. 8 (emphasis added). The same statute includes an alternate definition: “any
video game having one or more of the following characteristics: (1) it is primarily a game
of chance, and has no substantial elements of skill involved; (2) it awards game credits or
replays and contains a meter or device that records unplayed credits or replays.” Id. The
community’s argument that the challenged ETG meet s both of these definitions is
unconvincing.
The community contends that ETGs are video games of chance because, “[f]rom
the player’s perspective, they are no different from typical video blackjack or video poker
games or devices.” But to be a video game of chance the ETGs must be a video game. The
commission received information tending to support the view that ETGs are instead
technological visual aids that allow a player to see and play the hand of cards actually dealt
by the dealer. It does not simulate a card game; it facilitates a human dealer’s interaction
with human players in an actual game of cards. It also is not a video game in the usual
sense of a device comprised of an automated computerized program that either competes
17
against a human challenger or that provides a virtual environment where humans compete
against other humans simulating some physical activity that is not actually occurring. The
community is only partially accurate in maintaining that a patron playing a hand of cards
using an ETG “interacts exclusively with the automated individual video.” Based on the
information presented to the commission, it is more precise to say that the dealer interacts
with the patron through the device and that the patron responds to the cards dealt by the
dealer using the device only as a conduit. We cannot conclude that the commission acted
unlawfully or exceeded its authority by declining to treat the ETGs as “video games of
chance” and declining to exclude them from use by Running Aces.
The ETG System and the 80-Table Limit
The community argues that the commission exceeded its statutory authority by
authorizing Running Aces to exceed the statutory 80-table limit. The commission’s
decision about the limit turned on whether the ETG player stations count toward the limit.
This court “review[s] de novo an agency decision that turns on the meaning of words in a
statute or regulation.” In re NorthMet Project Permit to Mine Application, 959 N.W.2d
731, 757 (Minn. 2021) (quotation omitted). “When the language of a statute or regulation
is unambiguous, we apply the plain language. . . . But when the language is ambiguous, we
may, but are not required to, defer to the agency’s reasonable interpretation of the statute
or regulation.” In re Denial of Contested Case Hearing Requests, 993 N.W.2d 627, 646
(Minn. 2023). For the following reasons, we believe the statute defining the table limit is
ambiguous, and, because the agency did not provide its rationale, we cannot defer to its
interpretation and must rely on our own.
18
The controlling statute includes a somewhat ambiguous provision. Minnesota
Statutes section 240.30, subdivision 8, limits the number of tables used for card playing
the commission may approve. The restriction states, “[T]he maximum number of tables
used for card playing at the card club at any one time, other than tables used for instruction,
demonstrations, or poker tournament play, may not exceed 80.” Minn. Stat. § 240.30, subd.
8. Chapter 240 nowhere defines “table.” The term “tables used for card playi ng” affords
alternative reasonable interpretations. It might refer broadly to any table where a patron
who is playing cards is seated. If so, it would include each ETG player station. We base
this on illustrations in the record, which indicate that each dealer ETG is linked to player
stations that are, at least arguably, themselves table surfaces. But a table under the statutory
scheme might instead refer to the ETG table where the dealer is located and handles the
physical playing cards. We have no reason to believe that the legislature contemplated ETG
technology when it passed this 80-table restriction in 2012. See 2012 Minn. Laws ch. 279,
§ 5. The record indicates that ETGs were not part of the gaming market at that time. Games
like blackjack are traditionally played with all participants engaging with a dealer across
the same table surface , suggesting that the legislature likely envisioned each “table” to
include one dealer and those players interacting with that dealer. One might therefore
reasonably interpret the table limit to restrict the number of tables where a dealer is
positioned and so engaged. We think this is the more reasonable of the alternative
definitions, since the term “tables used for card playing” naturally includes at least one
dealer and any number of participants.
19
The commission did not expressly provide its rationale explaining its interpretation
to aid us in determining whether its interpretation is reasonable under Benedictine Health.
When considering whether to defer to an agency interpretation because it is “reasonable,”
we generally treat “reasonable” to mean “fair, just, equitable, and sensible.” St. Otto’s
Home v. Minn. Dep’t of Hum. Servs., 437 N.W.2d 35, 40 (Minn. 1989) (quotation omitted).
One commissioner commented at the hearing approving the floor plan while noting
uncertainty about the meaning of “table”:
I think when the statute was written, it wasn’t a consideration
of playing tables, there (indiscernible), you know, 10 other
positions or 20 positions in stadium style betting. So, I think in
that sense, that’s something that ultimately, I think is going to
be up to the courts to decide and not really us.

The commission’s interpretation instead appeared to hinge on its mission to protect the
financial viability of racetracks. And its approval letter to Running Aces articulated no
basis for its interpretation of the 80-table limit. Because the commission failed to provide
an interpretation, we have no articulated rationale to which we can defer. But we have
already concluded that one of the interpretations of “tables used for card playing” is more
reasonable than the other. And that interpretation is the one that is consistent with the
commission’s result.
The community argues that adopting any definition that counts only dealer stations
as tables would lead to an absurd result, reasoning that authorizing 80 dealer tables each
linked to 11 ETG player stations would result in 880 potential players. But this concern is
hypothetical and not compelling, because traditional arrangements of seven players per
dealer table would also result in a very high total number of potential players, since 80
20
dealer tables could accommodate 560 players. The community does not explain why the
commission was bound to reject a n interpretation that results in 880 players and adopt an
interpretation that would allow 560 players.
We add that t he legislature has demonstrated that it knows how to limit gambling
based on the number of participants who can engage at once, and it did not do so here. For
example, it limits the number of hand-held, electronic bingo devices in an establishment
based on occupation limits in the fire code. Minn. Stat. § 349.17, subd. 9(b). And it limits
the number of mechanical pull-tab dispensing devices per establishment to three, while
allowing up to 6, 12, or 50 electronic pull-tab devices depending on the seating capacity of
the premises or whether its primary business is bingo. Minn. Stat. § 349.1721, subds. 3(b),
4. Because t he legislature has not defined “tables used for card playing” and the
commission’s decision implicitly adopts the interpretation that seems most reasonable, we
cannot conclude that the commission acted beyond its statutory authority when it approved
the amended floor plan that is consistent with the number of dealer tables.
III
We next address the community’s contention that the commission acted arbitrarily
and capriciously and without substantial evidence when it decided to approve Running
Aces’s proposed plan. An agency’s decision is arbitrary and capricious when it “(a) relied
on factors not intended by the legislature; (b) entirely failed to consider an important aspect
of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the
decision is so implausible that it could not be explained as a difference in view or the result
of the agency’s expertise.” Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd.
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of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006). It may also be arbitrary and capricious if
it rests on an irregularity in procedure that constitutes a “danger signal.” Denial of
Contested Case Hearing Requests, 993 N.W.2d at 648. An agency’s decision is not
arbitrary and capricious, however, if a rational connection exists between the facts found
and the conclusion reached. In re Rev. of 2005 Ann. Automatic Adjustment of Charges for
All Elec. & Gas Utils., 768 N.W.2d 112, 120 (Minn. 2009). We address the community’s
argument under this standard, and we incorporate our prior discussion.
The community contends that the commission’s decision rested only on how long it
would take to make a reasoned decision and how it could protect horse racing. But the
commission bears the responsibility to protect Minnesota racetracks. See, e.g., Minn. Stat.
§ 240.135 (2022) (“It is the intent of the legislature that the proceeds of the card playing
activities authorized by this chapter be used to improve the horse racing industry by
improving purses.”). The commission’s concerns over how the proposed floor plan could
affect horse racing was a factor that the commission could properly consider.
The community argues that the effect-on-horse-racing discussion overtook other
important considerations. But the transcript of the meeting informs us that the
commissioners grappled with central issues, like the 80-table limit, gambling devices (at
least briefly), and the effect of delay on Running Aces. The transcript also reveals that the
commission implicitly rejected the community’s interpretation of the 80- table limit,
concluding that the legislature plainly did not intend to regulate player stations. The
commission considered the disputes raised, weighed the relevant interests, and voted to
approve the amended floor plan.
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The community argues also that the commission’s decision was arbitrary and
capricious because its letter approving the amended floor plan articulated no reasons for
the approval. It is true that the letter provided only a conclusory approval to adding one
ETG dealer table and 11 corresponding player stations. And the supreme court has
previously held that “at a minimum,” an agency must “have the reasons for its decisions
recorded or reduced to writing and in more than just a conclusory fashion.” White Bear
Rod & Gun Club v. City of Hugo, 388 N.W.2d 739, 742 (Minn. 1986) (quotation omitted).
Although the better practice is to reduce agency decisions to writing, a recording of its
reasons can suffice. Given the content of the meeting transcript, remanding the case with
instructions to prepare a detailed statement of findings is unnecessary for our judicial
review.
We turn to the community’s contention that the commission’s decision was
unsupported by substantial evidence. Whether an agency relied on substantial evidence to
support its decision depends on the reasonableness of what the agency did with the
evidence before it. Substantial evidence is: “ (1) such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion; (2) more than a scintilla of
evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence
considered in its entirety.” Cannon v. Minneapolis Police Dep’t, 783 N.W.2d 182, 189
(Minn. App. 2010) (quotation omitted). The community implies that the commission was
required to explain why it disagreed with “the only factual declaration from a person with
substantial experience in gaming,” who had opined in the community’s favor as to whether
the plan complied with the law. But the fact-finder, not this court, determines the weight
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afforded to an expert’s opinion. See A.D., 883 N.W.2d at 260. And on the questions of law,
the commission had previously determined that ETGs are not gambling devices or video
games of chance when the issue arose in 2017. The comm unity does not develop its
position further except to again point out the commission’s lack of a detailed explanation
on the 2023 proposal.
We hold that the commission’s approval was neither arbitrary and capricious nor
unsupported by substantial evidence.
IV
The community argues that the commission’s approval of ETGs is invalid because
the approval rests on an unpromulgated and therefore unenforceable rule. We have clarified
that an agency may develop policy either by rulemaking or by enforcing the law on a case-
by-case basis. In re Shakopee Mdewakanton Sioux Cmty., 988 N.W.2d 135, 143 (Minn.
App. 2023); In re Crown CoCo, Inc., 458 N.W.2d 132, 136 (Minn. App. 1990). The
Minnesota Administrative Procedure Act governs an agency’s authority to engage in
administrative rulemaking. See Minn. Stat. §§ 14.001–.69 (2022). Agency rules “must be
adopted in accordance with specific notice and comment procedures established by
statute.” White Bear Lake Care Ctr., Inc. v. Minn. Dep’t of Pub. Welfare, 319 N.W.2d 7, 9
(Minn. 1982). The community contends that the commission created an unpromulgated
rule by including the following statement when it approved of Running Aces’s plan of
operations in 2017: “The commission’s approval was with the understanding that the card
games will be played ‘live’ without the use of a random number generator .” The
community maintains that the commission then applied the rule in 2018 when it approved
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four additional ETG player stations while stating, “[T]he request is approved subject to the
same conditions as were set out in the commission’s prior approval letter dated October 3,
2017, that is, that the game will be played ‘live’ without the use of a random number
generator.” This contention fails.
The commission’s challenged statements lack the hallmarks of a rule. An agency
creates a rule when it makes a “statement of general applicability and future effect,
including amendments, suspensions, and repeals of rules, adopted to implement or make
specific the law enforced or administered by that agency or to govern its organization or
procedure.” Minn. Stat. § 14.02, subd. 4. By contrast, an agency does not make a rule when
it instead “enforces a law or rule by applying [it] to specific facts on a case-by-case basis.”
Minn. Stat. § 14.381, subd. 1(b). The questioned 2017 statement does not declare a
standard by which it will measure any future-requested plan amendment. The 2017
statement merely establishes a condition placed on the ETGs, specifically that their use
would entail live gaming between a dealer and players and that they would not employ any
automated, randomly generated numbers. The 2018 and similar 2023 statements reiterate
the same restriction. They reflect a case -by-case assessment of the gaming tables as they
were proposed for use at the time the commission considered Running Aces’s amendment
proposals.
The community unconvincingly urges a different result based on our holding in In
re Shakopee Mdewakanton Sioux Community, that the Minnesota Gambling Control Board
had issued an unpromulgated rule. 988 N.W.2d at 145. We see no similarity between the
thrust of the challenged statements here and the broad proclamations in that case, first that,
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“Going forward, the Board will not authorize proposed games with tickets that have no
more than 1 line, row, or column of symbols without the player opening each line,”
followed by an about-face email saying that the board would “cautiously proceed and allow
game submissions [with open- all functionality] for positive consideration . . . [and]
continue to research this subject to provide [regulated parties] with a clearer interpretation
of [section 349.12, subdivision 12b(3)] going forward.” Id. at 140. These broad
pronouncements of future direction bear no resemblance to the substance in the
commission’s approval notices here. Rulemaking does not occur when an agency makes
“a determination based on facts as applied to a specific party.” Bunge Corp. v. Comm’r of
Revenue, 305 N.W.2d 779, 784 (Minn. 1981). We read the statements in the approval
notices to indicate conditions on the ETGs applied specifically to Running Aces. They are
not unpromulgated rules.
Affirmed.