In the Matter of the Minnesota Racing Commission’s Approval of Running Aces Casino, Hotel & Racetrack’s Amended Plan of Operation to Incorporate Stadium Ultimate Texas Hold ’em

This opinion is nonprecedential except as provided by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
A24-1009

In the Matter of the Minnesota Racing Commission’s Approval of Running Aces Casino,
Hotel & Racetrack’s Amended Plan of Operation to Incorporate
Stadium Ultimate Texas Hold ’em.

Filed August 24, 2026
Affirmed
Cochran, Judge

Minnesota Racing Commission

Joshua T. Peterson, Allison J. Mitchell, Casey Matthiesen, Faegre Drinker Biddle & Reath
LLP, Minneapolis, Minnesota (for relator Shakopee Mdewakanton Sioux Community)

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

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

Considered and decided by Bentley, Presiding Judge; Ross, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this certiorari appeal, relator Shakopee Mdewakanton Sioux Community (the
community) challenges respondent Minnesota Racing Commission ’s approval of a 2024
amendment to respondent Running Aces Casino, Hotel & Racetrack ’s plan of operation.
The 2024 plan of operation amendment authorized Running Aces to replace an electronic
table game called Stadium Three Card Poker with another electronic card game called

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Stadium Ultimate Texas Hold ’em at Running Aces’ card club. The present appeal
involves the second time the community has challenged the commission’s approval of an
amendment to Running Aces’ plan of operation. See In re Minnesota Racing Comm’n,
No. A23-1738, 2024 WL 4259301, at *1 (Minn. App. Sept. 23, 2024) (Minnesota Racing
Comm’n I) (challenging an earlier amendment to the plan of operation), aff’d In re
Minnesota Racing Comm’n’s Approval of Running Aces Casino, Hotel & Racetrack’s
Request to Amend its Plan of Operation, 30 N.W.3d 285 (Minn. 2026). Because we
conclude the legal issues raised by the community in the current appeal are identical to
those decided in Minnesota Racing Commission I, we conclude the community’s challenge
is barred by the doctrine of collateral estoppel. We therefore affirm the commission’s
approval of the 2024 amendment to the plan of operation.
FACTS
Running Aces operates a horse racing venue and an associated card club in
Columbus, Minnesota. Minnesota Racing Comm’n I, 2024 WL 4259301, at *1. The
Minnesota Racing Commission, among other functions, regulates card club operations at
licensed horse racetracks in the state. See Minn. Stat. §§ 240.03, .07, subd. 3, .231; .30
(2024).
Regulation of Card Clubs at Licensed Racetracks
Before discussing the specific facts giving rise to the issues in this case, we provide
an overview of regulation of card club operations under Minnesota law. Card clubs are
facilities at licensed racetracks that may operate card games on up to 80 tables for the
purposes of supporting horse racing and breeding industries . Minn. Stat. §§ 240.01,

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subd. 4 (2024); 240.30, subds. 6-8. Such games include blackjack, poker, and baccarat.
Minnesota Racing Comm’n I, 2024 WL 4259301, at *1. A licensed racetrack may operate
a card club and offer card playing services to patrons only if the commission has authorized
the racetrack to do so under a class B license and has approved a plan of operation for card
playing activities at the card club. Minn. Stat. § 240.30, subd. 1. The plan of operation
“must set forth all necessary details for conducting card playing activities,” including:
(1) specifying and defining all card games to be played,
including all governing aspects of each game;
(2) time and location of card playing activities;
(3) amount and method by which participants will be
charged for card playing services;
(4) arrangements to ensure the security of card playing
activities;
(5) designation of all licensed employees of the licensee
who undertake supervisory positions related to card playing
activities;
(6) internal control systems for card playing activities; and
(7) a plan for the training of card club personnel in
identification of problem gamblers and appropriate action to
prevent or control problem gambling.

Id., subd. 6(a). A licensed racetrack may amend the plan of operation for a card club only
with the commission’s approval. Id., subd. 7. Additionally, a licensed racetrack may not
operate “video games of chance” or “gambling devices” at a card club and may only have
80 “tables used for card playing at the card club at any one time, other than tables used for
instruction, demonstrations, or poker tournament play.” Minn. Stat. §§ 240.071 (providing
that a licensed racetrack shall not operate video games of chance or other gambling
devices), .30, subd. 8(1) (2024) (imposing an 80-table limit).

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Electronic Table Games at Running Aces
With this legal framework in mind, we turn to the specific facts at issue in this case.
In 2017, Running Aces first received approval from the commission to amend its plan of
operation to include electronic table games (ETGs) at its card club. In re Minnesota Racing
Comm’n’s Approval of Running Aces Casino, Hotel & Racetrack’s Request to Amend its
Plan of Operation, 30 N.W.3d at 289. Unlike traditional card tables, ETGs “include[] an
electronic video interface linking a dealer with players.” Minnesota Racing Comm’n I,
2024 WL 4259301, at *1. More specifically, with ETGs, the dealers are at their own table,
which is equipped with a camera and card-recognition technology. Players sit at individual
player stations, separated from both the dealer and other players. Each individual player
station is fully automated and contains a video touch screen. To begin the game, the dealer
deals a set of cards and card-recognition technology captures the cards, which are then
displayed as a digital picture on each player’s individual video screen. Players are also
shown a live feed of the actual cards being dealt by the dealer. Players place wagers and
indicate their betting decisions using only the touchpad screen at their table. Players may
cash out through the touchscreen pad and receive a printed voucher that can be exchanged
for cash. When the commission approved the use of ETGs at Running Aces in 2017, the
approval was made “with the understanding that the card games will be played ‘live’
without the use of a random number generator.” Id. at *2.
The 2023 Amendment Involved in the Prior Appeal
In May 2023, Running Aces requested to amend its plan of operation to add an
additional ETG. Id. Before the requested 2023 amendment, Running Aces’ approved plan

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of operation for its card club included the following tables : 60 traditional card-playing
tables with seven player seats at each table, 14 traditional tables in the atrium with nine
player seats at each table, and three ETGs with 11 “player stations.” Id. The 2023 request
to amend the plan sought to modify the plan of operations to include one “Stadium Three
Card Poker” ETG, with a dealer table and 11 player stations. Id.
The community sent a letter and legal memorandum to the commission objecting to
the Running Aces’ proposed 2023 amendment.1 The community asserted that ETGs
constitute “gambling devices” and “video games of chance” that Running Aces is legally
prohibited from operating at the racetrack and claimed that the requested plan amendment
would result in Running Aces exceeding the 80-table statutory limit. Id. After considering
the community’s objection, the commission voted to approve the request in October 2023.
The community appealed the approval of the 2023 amendment to this court.
In our opinion, we considered and decided the following four issues. We first
considered whether the community had standing to challenge the commission’s approval
of the 2023 amendment to Running Aces’ plan of operation for the card club and concluded
that it did. Id. at *2-4. We next considered whether the commission exceeded its statutory
authority by in effect authorizing “gambling devices” or “video games of chance” and by
authorizing more than 80 tables at the card club when it approved the 2023 amendment.
Id. at *5. In addressing the issue of whether the commission exceeded its statutory

1 The community was interested in the proposed amendment because “the [c]ommunity
has a legally protected interest in the competition-restricted environment of commercial
gambling.” In re Minnesota Racing Comm’n’s Approval of Running Aces Casino, Hotel
& Racetrack’s Request to Amend its Plan of Operation, 30 N.W.3d at 287.

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authority, we rejected the community’s argument that ETGs are prohibited “gambling
devices” and prohibited “video games of chance” and also rejected the community’s
argument that the inclusion of ETGs in the 2023 amended plan of operation resulted in the
card club exceeding the 80-table limit. Id. at *5-8. Third, we considered whether the
commission acted arbitrarily and capriciously by approving the amended plan of operation
and concluded it did not. Id. at *8-9. Finally, we analyzed and rejected the community’s
argument that the commission’s approval of ETGs was invalid because it “rests on an
unpromulgated and therefore unenforceable rule.” Id. at *9-10.
The Minnesota Supreme Court granted the community’s petition for further review
and agreed with this court that the community had standing to challenge the commission’s
approval of the 2023 amendment to the plan of operation for card playing activities at the
Running Aces racetrack. In re Minnesota Racing Comm’n’s Approval of Running Aces
Casino, Hotel & Racetrack’s Request to Amend its Plan of Operation, 30 N.W.3d at 292.
But, because the supreme court was “evenly divided” on the community’s request to vacate
the commission’s approval of the 2023 amendment, the supreme court affirmed “the court
of appeals’ decision on the remaining issues without expressing any opinion on the merits.”
Id. at 287.
The 2024 Amendment
In March 2024, while the appeal of the 2023 amendment was pending before this
court, Running Aces submitted a new request with the commission to amend its plan of
operations for the card club. The request was limited to “replac[ing] [its] existing Stadium
Three Card Poker [with] Stadium Ultimate Texas Hold ’em [Poker].” The request noted

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that, if approved, “[t]he existing 11 player terminals linked to [Stadium] Three Card Poker
will be changed to [Stadium] Ultimate Texas Hold ’em Poker.”
The community sent two letters opposing the request. In the first letter, dated
April 8, 2024, the community noted that “Stadium Ultimate Texas Hold ’em is an
electronic table game (‘ETG’) operated much the same way as the other ETGs” in operation
at Running Aces card club. The community then went on to say that it “objects to this
amendment for the reasons that it has objected to the racetracks’ operation of the other
ETGs” and incorporated by reference the arguments it made in objection to the 2023
amendment. (Emphasis added.) It also reiterated its view that “ETGs constitute gambling
devices and video games of chance, which the racetracks cannot legally operate.” And the
community also asserted, like it had with the 2023 amendment, that the commission “lacks
authority to approve illegal games or a [plan of operation] that violates the 80-table limit.”
Finally, the community stated that “in continuing to approve ETGs, the [c]ommission is
unlawfully enforcing an unpromulgated rule.”
In its second letter to the commission, dated June 14, the community again
“object[ed] to [the 2024 plan of operation] amendment [request] for the same reasons it
objected to Running Aces’ . . . 2023 request to amend its plan of operation[.]” (Emphasis
added.) It also reiterated that “the ETGs currently operated at Running Aces constitute
gambling devices and video games of chance, which the racetracks cannot legally operate”
and stated that “[t]he newly proposed Stadium Ultimate Texas Hold ’em game is no
different.” (Emphasis added.) And the community went on to assert that “[i]n continuing

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to approve ETGs for use at card clubs in . . . Minnesota, the com mission is unlawfully
enforcing an unpromulgated rule.”
Following receipt of the community’s letters, the commission met on June 17, 2024,
to consider Running Aces’ 2024 amendment request to replace Stadium Three Card Poker
with Stadium Ultimate Texas Hold ’em . At the meeting, Running Aces explained: “We
have Ultimate Texas Hold ’em on the floor right now, but basically, this is an electronic
version of a felt-based game.” Running Aces made the request to replace Stadium Three
Card Poker, an ETG, with Stadium Ultimate Texas Hold ’em, another ETG, because
“Ultimate Texas Hold ’em is one of the more popular games.” Running Aces further
explained that “[t]here is no equipment change. The software is actually already in there.
Basically, it’s just the flip of a switch.” The commission approved the 2024 amendment
request at the meeting.
The community filed a petition for a writ of certiorari challenging the commission’s
approval of Running Aces’ request to replace Stadium Three Card Poker with Stadium
Ultimate Texas Hold ’em (the 2024 amendment). This court stayed the appeal pending the
Minnesota Supreme Court’s decision in Minnesota Racing Commission I. Following the
supreme court’s decision, we dissolved the stay. The matter is now before this court.
DECISION
This court reviews certiorari appeals from a quasi-judicial agency decision not
subject to the Minnesota Administrative Procedures Act, such as this one, under the
common-law standard. In re Petition for Clarification or Amend. of Appropriate Unit,
___ N.W.3d ___, ___, 2026 WL 2029068, at *4 (Minn. App. July 13, 2026); see also

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Minnesota Racing Comm’n I, 2024 WL 4259301, at *5 (“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.”). When reviewing an agency’s quasi-judicial decision under the common-
law standard , we consider “questions affecting the jurisdiction of the [agency], the
regularity of its proceedings, and, as to the merits of the controversy, whether the order or
determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent,
under an erroneous theory of law, or without any evidence to support it.” In re Petition for
Clarification or Amend. of Appropriate Unit, 2026 WL 2029068, at *4; see also
Wilhite v. Scott Cnty. Hous. & Redev elopment Auth., 759 N.W.2d 252, 255 (Minn.
App. 2009).
The community raises four arguments in this appeal challenging the commission’s
approval of the 2024 amendment to Running Aces’ plan of operation. It argues that the
commission (1) exceeded its authority by permitting Running Aces to operate “gambling
devices”; (2) exceeded its authority by permitting Running Aces to operate “video games
of chance”; (3) exceeded its authority by permitting Running Aces to operate more than 80
tables at the card club; and (4) “continu[ed] to enforce an unpromulgated rule.” In
response, the commission and Running Aces argue collateral estoppel and res judicata
foreclose the community from bringing forth the appeal, because this court’s decision in
Minnesota Racing Commission I is “binding authority on the issues presented by this
appeal.” For the reasons discussed below, w e agree that collateral estoppel bars us from

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reaching the merits of the current appeal because all four issues raised in this appeal are
identical to issues raised in Minnesota Racing Commission I.
Collateral Estoppel
Collateral estoppel precludes parties from relitigating issues that were previously
adjudicated. Tarutis v. Comm’r of Revenue, 393 N.W.2d 667, 669 (Minn. 1986).
Defensive collateral estoppel prevents a plaintiff from asserting a claim that the plaintiff
has previously litigated and lost. Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 652
n.2 (Minn. 1990). The doctrine of collateral estoppel may apply if: (1) the issue is identical
to the one previously adjudicated; (2) there was a final judgment on the merits; (3) the
estopped party was a party or in privity with a party to the prior adjudication; and (4) the
estopped party was given a full and fair opportunity to be heard on the issue. Ill. Farmers
Ins. Co. v. Reed, 662 N.W.2d 529, 532-33 (Minn. 2003). “In addition to these four factors,
a court applying collateral estoppel must be convinced that its application is fair.”
Barth v. Stenwick, 761 N.W.2d 502, 508 (Minn. App. 2009).
Only the first factor is in dispute here for each of the four issues raised on appeal .
2
“For collateral-estoppel purposes, issues are identical when the issues presented by [the
current] litigation are in substance the same as those resolved in the previous litigation.”
All Finish Concrete, Inc. v. Erickson, 899 N.W.2d 557, 567 (Minn. App. 2017). “ But the

2 The remaining three factors are met in this case for each issue: (1) our decision in
Minnesota Racing Commission I constituted a final judgment on the merits; (2) the parties
to this lawsuit are identical to the prior litigation; and (3) the community was given a full
and fair opportunity to be heard on the issue. We further note that the parties do not dispute
that these factors are met.

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facts of the two cases need not be identical, as long as any factual differences have no legal
significance in resolving the issue presented in both cases.” Id. at 567-68 (quotations
omitted).
Because only the first factor is in dispute, we focus our analysis on that factor. We
consider each of the four issues raised by the community in this appeal to determine if each
issue is identical to an issue previously adjudicated in Minnesota Racing Commission I.
See Hauschildt v. Beckingham, 686 N.W.2d 829, 837-38 (Minn. 2004). Applying the
applicable legal standard, we conclude all four issues raised by the community in this
appeal are identical to issues raised by the community and adjudicated in the prior appeal.
Gambling Devices
We begin by considering the community’s argument that the commission exceeded
its authority by authorizing Running Aces to replace Stadium Three Card Poker with
Stadium Ultimate Texas Hold ’em because Stadium Ultimate Texas Hold ’em is a
“gambling device” and card clubs are prohibited by statute from operating gambling
devices. Specifically, the community contends that Stadium Ultimate Texas Hold ’em
meets the definition of “gambling device” because Stadium Ultimate Texas Hold ’em is an
ETG and ETGs are gambling devices. 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 (2024). The community’s argument that Stadium
Ultimate Texas Hold ’em is a “gambling device” does not depend on the specifics of the

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game itself, rather it turns on the community’s contention that ETGs are “contrivance[s]”
that meet the definition of a “gambling device.” Consequently, the issue raised in this
appeal by the community’s gambling-device argument is whether an ETG is a “gambling
device” under Minnesota Statutes section 609.75, subdivision 4.
In Minnesota Racing Commission I, we addressed and decided this same issue. In
that case, “[t]he community argue[d] that ETGs are gambling devices under [Minnesota
Statutes section 609.75, subdivision 4].” 2024 WL 4259301, at *5. The community further
argued that “the commission acted unlawfully and exceeded its authority by allowing
Running Aces to add another ETG to its [ plan of operation]” because “gambling devices”
are not permitted at card clubs. Id. We resolved this argument by deciding that ETGs are
not “gambling devices” under section 609.75, subdivision 4, but rather are “associated
equipment” under subdivision 4a of the same statute. Id. at *6. Our analysis focused on
ETGs generally, not the particular ETG that was added under the 2023 amendment. Id.
Because the community’s gambling-device argument in this case also turns on the use of
the ETG technology and not the game itself, we conclude the issue presented is identical
to that resolved in the previous litigation between these same parties.
To persuade us otherwise, the community focuses on factual differences between
this case and the prior litigation. The community emphasizes that this case involves the
commission’s approval of Stadium Ultimate Texas Hold ’em whereas the prior litigation
involved the addition of a different ETG approved in the 2023 amendment. The
community also emphasizes that Stadium Ultimate Texas Hold ’em is manufactured by a

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different company than the company that manufactured the ETG approved in 2023. The
community’s argument is not persuasive.
As discussed, for collateral estoppel to apply, “the facts of the two cases need not
be identical, as long as any factual differences have no legal significance in resolving the
issue presented in both cases.” All Finish Concrete, Inc., 899 N.W.2d at 567-68 (quotations
omitted). Here, the legal question of whether the approved games in both the 2023 and
2024 amendments are “gambling devices” turns on the fact that the games are ETGs, not
the specific game or its manufacturer. The community has not identified any meaningful
differences between the game at issue here and the game at issue in the previous case. To
the contrary, in its brief in this case arguing that Stadium Ultimate Texas Hold ’em is a
“gambling device,” the community focuses on our prior decision and argues we erred in
our analysis of whether ETGs are “gambling devices.” In other words, the community has
not provided any reason to conclude that the question of whether Stadium Ultimate Texas
Hold ’em (an ETG) is a “gambling device” presents a different legal issue than that decided
in the last case. For all these reasons, we are satisfied that any factual differences between
the current appeal and the prior appeal “have no legal significance” in terms of the question
of whether the ETGs at issue are “gambling devices.” Id. at 568. Accordingly, the
gambling-device issue raised by the community in this appeal has been previously litigated
and is subject to collateral estoppel.
Video Game of Chance
The next issue that we consider is the community’s argument that the commission
exceeded its authority by authorizing Running Aces to replace Stadium Three Card Poker

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with Stadium Ultimate Texas Hold ’em because Stadium Ultimate Texas Hold ’em meets
the statutory definition of a “video game of chance” even if it is not a “gambling device”
and card clubs are prohibited from operating video games of chance. Section 609.75,
subdivision 8, 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 (2024) (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. In this appeal, the community argues that Stadium
Ultimate Texas Hold ’em is a “video game of chance” because “[f]rom the player’s
perspective, the experience [of playing table poker games] is indistinguishable from video
poker machines.”
In Minnesota Racing Commission I, the community raised and we decided an
identical argument. In that case, the community argued 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.” Minnesota Racing Comm’n I, 2024 WL
4259301, at *7. We rejected the community’s argument and concluded that ETGs are not
video games of chance as defined by section 609.75, subdivision 8. Id. Because our
reasoning applied to ETGs generally, we conclude the issue presented in this appeal
regarding video games of chance is identical to the issue resolved in the previous litigation.

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To persuade us that this issue is not barred by collateral estoppel, the community
argues that the doctrine of collateral estoppel “does not freeze statutory interpretation in
place where new facts materially affect how the statute operates.” But there are no new
facts here which affect our analysis; as the community noted in its June 14, 2024 letter to
the commission objecting to the proposed 2024 amendment, it did so for “the same reasons
it objected to Running Aces’ May 18, 2023 request to amend its plan of operation.” And
although the current appeal involves a new ETG, how the player interacts with ETGs is the
same in both cases; the ETG is merely a conduit for viewing the cards in both cases.
Additionally, the community does not allege a difference in terms of how the games are
played. And, as the commission discussed at the meeting, the physical device is the same
in both cases. Accordingly, we discern no factual difference of “legal significance in
resolving the issue presented in both cases.” All Finish Concrete, Inc., 899 N.W.2d at 568
(quotation omitted). We therefore conclude that for the purposes of collateral estoppel, the
community’s argument that Stadium Ultimate Texas Hold ’em is a video game of chance
is identical to its argument regarding “video games of chance” raised and decided in the
prior appeal. This issue therefore is subject to collateral estoppel.
Table Limit
We next turn to the community’s argument that the commission exceeded its
statutory authority by permitting Running Aces to operate more than 80 tables when it
approved the 2024 amendment. Section 240.30, subdivision 8, of the Minnesota Statutes,
limits the number of tables used for card playing at a card club operated by a racetrack .
The restriction states that “the maximum number of tables used for card playing at the card

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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. The term “table” is
not defined. The community argues that the 2024 amendment permitted Running Aces to
operate more than 80 tables based on its contention that the term “table” “should be given
[its] plain and ordinary meaning” and should include both dealer tables and player stations.
It asserts that ETGs allow dealers “ to deal to a potentially unlimited number of players,”
and therefore each player station should be considered a table under section 240.30,
subdivision 8.
In Minnesota Racing Commission I, the community raised and we decided an
identical argument. In that case, the community argued “that the commission exceeded its
statutory authority by authorizing Running Aces to exceed the statutory 80-table limit.”
Minnesota Racing Comm’n I, 2024 WL 4259301, at *7. We concluded that the term
“table” included “one dealer and those players interacting with that dealer” and therefore
the commission’s approval of the 2023 amendment did not violate the 80-table limit. Id.
The issue raised by the community in this appeal regarding the 80 -table limit is
identical to the issue raised in the prior appeal. The community directly challenges this
court’s previous interpretation of the meaning of “tables” in the context of all ETGs and,
consequently, directly challenges our prior holding under an identical theory. The
community’s argument does not depend on the game being played or the specific plan of
operation at issue. The community simply restates its prior assertion that any definition of
“tables” under section 240.30, subdivision 8, that does not include ETG player tables is
irrational— an assertion we thoroughly considered and rejected. Id.

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We further note that t he community does not contend that any factual differences
between the 2024 amendment and the 2023 amendment impact the substance of its
argument regarding the 80-table limit in this appeal. It only makes passing reference to the
fact that “in Stadium Ultimate Texas Hold ’em at Running Aces one dealer can deal up
to . . . 26 more hands than the felt-based game.” But, as explained by a representative for
Running Aces, the 2024 plan of operation did not add “any additional stations or any
additional tables.” Consequently, the number of hands played is irrelevant to the question
of the legal interpretation of the 80-table limit. In sum, we discern no factual difference in
the two appeals that impacts the substance of the community’s argument that the
commission exceeded its statutory authority by permitting Running Aces to operate more
than 80 tables. The issue is therefore subject to collateral estoppel.
Unpromulgated Rule

Finally, the community argues that by approving the 2024 amendment, the
commission is “continuing to enforce an unpromulgated rule by permitting licensed card
clubs to operate [ETGs].” The Minnesota Administrative Procedure Act governs an
agency’s authority to adopt administrative rules. See Minn. Stat. §§ 14.001-.69 (2024).
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). “Generally, an agency may formulate policy in two
ways: rules or case-by-case determinations.” In re Shakopee Mdewakanton Sioux Cmty.,
988 N.W.2d 135, 143 (Minn. App. 2023). Agencies create rules when they make a
“statement of general applicability and future effect.” Minn. Stat. § 14.02, subd. 4. But an

18
agency does not rule-make when it “enforces a law . . . by applying the law . . . to specific
facts on a case-by-case basis.” Minn. Stat. § 14.381, subd. 1(b) (2024).
In this appeal, t he community asserts that the commission enforced an
unpromulgated rule permitting the use of ETGs at card clubs when it approved the change
from Stadium Three Card Poker to Stadium Ultimate Texas Hold ’em, both ETGs, in the
2024 amendment. To support its argument, the community alleges that the approval was
“a pro forma rubber-stamping of [this] ETG application” that relied on the commission’s
prior approval of ETGs at Running Aces in 2017. The community further argues that the
commission’s 2017 approval of ETGs constitutes an unlawful, unpromulgated rule.
In Minnesota Racing Commission I, we considered and decide d an identical
issue: whether “the commission’s approval of ETGs is invalid because the approval rests
on an unpromulgated and . . . unenforceable rule” from 2017. Minnesota Racing
Comm’n I, 2024 WL 4259301, at *9. We concluded that the commission’s approval of the
2023 amendment did not implement an unpromulgated rule from 2017 because the
approval of the 2023 amendment as well as the 2017 amendment reflected “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.” Id. at *10. We further noted that the
commission’s deliberations lacked “pronouncements of future direction.” Id. On this
basis, we rejected the community’s theory that, when the commission approved the 2023
amendment, the commission was enforcing an unpromulgated rule from 2017.
In the present appeal, the community again argues that the commission “is
continuing to enforce an unpromulgated rule by permitting card clubs to operate [ETGs].”

19
Based on our review and the community’s briefing and admissions at oral argument, we
are convinced that the substance of the community’s arguments are identical between the
two appeals. All Finish Concrete, Inc., 899 N.W.2d at 567. We discern no material factual
differences between the community’s prior appeal and the present appeal on the issue of
whether the commission is enforcing an unpromulgated rule.
To persuade us otherwise, the community argues that “[t]he 2023 appeal did not—
and could not—resolve the legality of the Commission’s continued reliance on its 2017
approval of the first group of ETGs” to support approval of the 2024 amendment. We
disagree. While the community is correct that the 2023 appeal involved a different
underlying amendment to the plan of operation, collateral estoppel requires only that the
underlying issues are identical, not that the causes of action are identical. Kaiser v. N.
States Power Co., 353 N.W.2d 899, 902 (Minn. 1984) (stating that under collateral
estoppel, “once an issue is determined by a court of competent jurisdiction, that
determination is conclusive in subsequent suits based on a different cause of action
involving a party to the prior litigation”). In essence, the community asserts that, because
the 2023 and 2024 plan of operation amendments are distinct, collateral estoppel cannot
apply. But under Minnesota law, as long as the legal issues are identical, the first factor of
collateral estoppel is met. Here, the unpromulgated-rule argument made by the community
in this case is identical to that made in the prior appeal and therefore collateral estoppel
applies. Accordingly, we discern no difference between the prior litigation and the present
dispute that alters the “substance” of the community’s argument on unpromulgated
rulemaking. All Finish Concrete, Inc., 899 N.W.2d at 567. The issue raised by the

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community regarding unpromulgated rulemaking in this appeal is identical to that raised
in the community’s prior appeal. Minnesota Racing Comm’n I, 2024 WL 4259301, at *8-
9. We therefore conclude that this issue is also subject to collateral estoppel.
Fairness
Having concluded that all four issues are identical to those raised by the community
in the prior appeal, we next consider whether application of collateral estoppel is fair to the
community. Collateral estoppel is an equitable remedy and should not be applied where it
“would work an injustice on the party against whom the [doctrine is] urged.” Hauschildt,
686 N.W.2d at 837. But defensive collateral estoppel, which is the type of collateral
estoppel at issue here, is favored in the law. Aufderhar, 452 N.W.2d at 652 n.2; see also
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329-330 (1979).
We have no trouble concluding that application of collateral estoppel to the issues
here would not work an injustice. Rather, applying collateral estoppel is fair to the
community because the community initiated both this appeal and the prior appeal against
the commission and argued the same issues in Minnesota Racing Commission I.
Additionally, application of collateral estoppel based on our resolution of identical issues
in Minnesota Racing Commission I promotes judicial economy and respect for our prior
decision. See Minn. R. Civ. App. P. 136.01(c) (stating that nonprecedential opinions are
binding authority for collateral estoppel purposes); Parklane Hosiery Co., 439 U.S. at 329-
30 (noting that defensive use of collateral estoppel “promote[s] judicial economy”).

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Conclusion
In sum, we conclude collateral estoppel bars each of the community’s arguments
raised in this appeal. Therefore, we affirm the commission’s approval of the 2024 plan of
operation amendment.
Affirmed.