Historical horse-racing machines are terminals where people can bet on real-life races that happened in the past. Gamblers can assess the abilities of the riders and their horses based on stats provided by the terminals, but identifying information about the specific race is omitted.

The Oregon Department of Justice’s advisory opinion last week said these machines don’t require any skill, so they work more like slot machines. As such, they are considered lotteries and would collectively make up a casino.

Oregon has a constitutional ban against casinos that aren’t on tribal lands.

The Oregon Racing Commission, which regulates the state’s horse racing and wagering, on Thursday denied the facility based on the justice department’s opinion.

But it also approved a resolution stating that it disagreed with the state’s attorneys. A couple of commissioners at Thursday’s meeting referred to the DOJ’s opinion as their “marching orders.”

Gov. Kate Brown on Wednesday sent a letter to the commission saying that she expected commissioners to “heed the advice in this published opinion by our state legal counsel.”

The commission’s executive director, Jack McGrail, insinuated that the issue could turn up in a courtroom.

“While at present, I believe that the commission is constrained by the DOJ opinion and the letter from Governor Brown; perhaps, ultimately a court will resolve this issue, as these types of disputes are often finally arbitrated by a court.”

The commission’s resolution says the Flying Lark is not a casino, and therefore wouldn’t go against the state’s constitutional ban of casinos. It points to the Portland Meadows’ use of horse racing machines in 2019.

“What was allowed in Portland should not be prohibited in Grants Pass,” it reads.

The Flying Lark is the brainchild of Dutch Bros co-founder Travis Boersma, who became the state’s newest billionaire after Dutch Bros went public last year. The Flying Lark facility — which would have included retail shops, restaurants and bars — is already built. The company also hired a couple of hundred employees in anticipation of its opening this spring.

Boersma in the past has said that the facility hinged on its use of 225 historical horse-racing machines. On Thursday, he told the racing commission those employees will need to be laid off at the end of the month.

Several tribes have voiced their opposition to the facility, saying it would directly compete with their casinos, which help fund tribal services.

At Thursday’s meeting, the spokesperson for the Cow Creek Band of Umpqua Tribe of Indians, Anna Richter Taylor, said the racing commission should have consulted with tribes during the Flying Lark’s planning process.

“If it’s done properly and early, we actually can get to mutually agreeable resolutions that benefit both governments,” said Richter Taylor.

Richter Taylor said tribes mostly support live horse racing, but are against gambling through the historical horse-racing machines.