Big Sandy Rancheria Enterprises v. Becerra

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 BIG SANDY RANCHERIA No. 1:18-cv-00958-DAD-EPG

ENTERPRISES, a federally chartered

12 corporation,

13 Plaintiff, ORDER GRANTING DEFENDANTS’

MOTIONS TO DISMISS

14 v.

(Doc. Nos. 15, 16)

15 XAVIER BECERRA, in his official

capacity as Attorney General of the State of

16 California; and NICOLAS MADUROS, in

his official capacity as Director of the

17 California Department of Tax and Fee

Administration,

18

Defendants.

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20 Plaintiff Big Sandy Rancheria Enterprises (“BSRE”) brings this action challenging the

21 application of California’s cigarette tax and licensing statutes. On April 16, 2019, the matter

22 came before the court for a hearing on the motion to dismiss filed by defendant Xavier Becerra, in

23 his official capacity as Attorney General for the State of California (“Attorney General”), and the

24 motion to dismiss for lack of jurisdiction filed by defendant Nicolas Maduros, in his official

25 capacity as Director of the California Department of Tax and Fee Administration (“CDTFA”).

26 (Doc. Nos. 15, 16.) Attorneys John Peebles and Michael Robinson appeared on behalf of

27 plaintiff. Attorneys James Hart and Peter Nascenzi appeared on behalf of the Attorney General

28 and attorney Michael von Loewenfeldt appeared on behalf of CDTFA. Having considered the

1 parties’ briefs and the arguments of counsel, and for the reasons set forth below, the court will

2 grant defendants’ motions.

3 BACKGROUND

4 A. California’s Cigarette Tax and Licensing Scheme

5 The first amended complaint alleges as follows. Since 1959, California has imposed

6 excise taxes on the distribution of cigarettes. (Doc. No. 13 (“FAC”) at ¶ 69.) The State’s

7 Cigarette and Tobacco Products Tax Law (“Cigarette Tax Law”), California Revenue & Taxation

8 Code §§ 30001–30483, imposes several taxes on cigarettes, currently totaling $2.87 per pack of

9 twenty cigarettes. (Id. at ¶ 68.) Generally, the State cigarette taxes are paid by distributors

10 through stamps or meter impressions that are affixed to each pack of cigarettes at or near the time

11 of sale. (Id. at ¶ 74) (citing Cal. Rev. & Tax. Code § 30163). Only cigarettes listed in the State’s

12 tobacco directory are permitted to bear such tax stamps. (Id.) (citing Cal. Rev. & Tax. Code

13 § 30165.1(e)(1)).

14 When the distributor is not subject to the State’s taxes, the tax is “paid by the user or

15 consumer,” and is collected by a distributor “at the time of making the sale or accepting the

16 order.” (Id. at ¶¶ 75–76) (quoting Cal. Rev. & Tax. Code §§ 30107, 30108(a)). Plaintiff BSRE

17 contends in this action that when both the wholesale distributor and retail distributor are

18 untaxable, California law does not require the wholesale distributor to collect and remit any taxes

19 to the State. (Id. at ¶ 77.)

20 To facilitate the collection of these taxes, the State requires every distributor to hold two

21 licenses. The Cigarette and Tobacco Products Licensing Act (“Licensing Act”), California

22 Business & Professions Code §§ 22970–22991, requires manufacturers, importers, distributors,

23 wholesalers, and retailers to obtain State-issued licenses, requires licensees to comply with

24 various requirements, and generally prohibits the sale of cigarettes and tobacco products to, or the

25 purchase of cigarettes and tobacco products from, such businesses that are unlicensed. (Id. at ¶

26 78.) The Cigarette Tax Law also requires distributors and wholesalers of cigarettes and tobacco

27 products to hold State-issued licenses, in addition to the licenses required under the Licensing

28 Act, and imposes associated obligations and restrictions upon licensees. (Id. at ¶ 81) (citing Cal.

1 Rev. & Tax. Code §§ 30140–30159). Among those obligations is the requirement that

2 distributors file monthly reports with the California Department of Tax and Fee Administration

3 identifying both taxable and exempt distributions. (Doc. No. 15-1 at 14; Doc. No. 20 at 11.)

4 B. Tobacco Master Settlement Agreement

5 In addition to the consumer-paid taxes collected on the distribution of cigarettes, the State

6 also receives compensation from cigarette manufacturers pursuant to the 1998 Tobacco Master

7 Settlement Agreement (“MSA”). (Id. at ¶ 29.) The MSA was the result of lawsuits brought by

8 46 states against major cigarette manufacturers to recover healthcare costs that the states claimed

9 they had incurred as a direct result of smoking, and to challenge industry tactics such as targeting

10 minors and covering up the known health impacts of smoking. (Id. at ¶¶ 22–29.)

11 Under the MSA, settling states receive annual payments from participating manufacturers

12 in perpetuity. (Id. at ¶ 33.) Other cigarette manufacturers that are not signatories to the MSA are

13 known as non-participating manufacturers. Participating manufacturers to the MSA negotiated

14 protections against competition from non-participating manufacturers, including, most notably,

15 the Non-Participating Manufacturer Adjustment. (Id. at ¶¶ 36–37.) The Non-Participating

16 Manufacturer Adjustment provides that if participating manufacturers lose market share within a

17 state as a result of competition from non-participating manufacturers, the administrative body

18 created under the MSA can significantly decrease payments to that state. (Id. at ¶ 37.) The only

19 way a state may avoid losing some or all of its MSA payments is if it has enacted and diligently

20 enforced a “qualifying statute,” which requires non-participating manufacturers to deposit money

21 into an escrow account based on the number of cigarettes the non-participating manufacturers

22 sold in the state the prior year. (Id.)

23 California’s qualifying statute is the California Reserve Fund Statute (“Escrow Statute”),

24 which requires non-participating manufacturers to either join the MSA or to place funds in

25 escrow at a specified rate for each cigarette sold in California during the previous year. (Id. at

26 ¶ 39) (citing Cal. Health & Safety Code § 104557(a)). The amount of the escrow payment

27 required is roughly equal to the per-cigarette-sold amount that participating manufacturers must

28 pay to the states annually under the MSA. (Id. at ¶ 37.) In this way, non-participating

1 manufacturers have roughly equivalent obligations to pay under the MSA, preventing non-

2 participating manufacturers from receiving a competitive advantage over participating

3 manufacturers. (Id. at ¶ 38.)

4 To ensure that non-participating manufacturers comply with their obligations to make

5 escrow payments, California enacted the California Complementary Statute (“Complementary

6 Statute”), also known as the Directory Statute. (Id. at ¶ 41) (citing Cal. Rev. and Tax. Code

7 § 30165.1). The Complementary Statute requires the California Attorney General to maintain and

8 publish a list (“Tobacco Directory”) of tobacco product manufacturers and tobacco brand families

9 that have been approved for sale in California. (Id.) To be included in the Tobacco Directory, a

10 tobacco manufacturer must certify that it is either a participating manufacturer, or that it is a non-

11 participating manufacturer that is in full compliance with the Escrow Statute and all of

12 California’s tobacco product, licensing, and manufacturing laws. (Id.) (citing Cal. Rev. and Tax.

13 Code § 30165.1(b)). The Complementary Statute prohibits any person from selling, offering for

14 sale, possessing for sale, shipping, or otherwise distributing into California or within California,

15 or importing for personal consumption in California, any cigarettes of a tobacco manufacturer or

16 brand family that is not included in the Tobacco Directory. (Id. at ¶ 42) (citing Cal. Rev. and

17 Tax. Code § 30165.1(e)(2)).

18 C. Big Sandy Rancheria Enterprises

19 The Big Sandy Rancheria Band of Western Mono Indians (the “Tribe”) is a federally-

20 recognized Indian tribe with offices located on the Big Sandy Rancheria in Auberry, California.

21 (Id. at ¶ 17.) BSRE is a tribal corporation incorporated under section 17 of the Indian

22 Reorganization Act, 25 U.S.C. § 5124 (“IRA”), which authorizes the Secretary of the Interior to

23 issue a charter of incorporation to any Indian tribe upon petition by such tribe. (Id. at ¶ 92.)

24 Although only BSRE, and not the Tribe, is a plaintiff to the instant action, BSRE alleges that

25 corporations created pursuant to section 17 of the IRA are “essentially alter egos of the tribal

26 government.” (Id. at ¶ 13) (quotation omitted).

27 In July 2012, in accordance with its charter, BSRE established four subdivisions: (1) Big

28 Sandy Distributing, which is organized to engage in the wholesale distribution of tobacco

1 products to Indian tribes and Indian-owned entities in Indian Country; (2) Big Sandy

2 Distribution,1 which is organized to engage in the distribution of tobacco products to non-Indian

3 owned entities in the United States; (3) Big Sandy Manufacturing, which is organized to engage

4 in the manufacture of tobacco products on the Big Sandy Rancheria; and (4) Big Sandy

5 Importing, which is organized to engage in the importation of tobacco and tobacco products onto

6 the Big Sandy Rancheria. (Id. at ¶¶ 97–115.) Plaintiff alleges that Big Sandy Distribution has not

7 made any sales of tobacco products, and that Big Sandy Manufacturing does not currently

8 manufacture tobacco products, but intends to do so upon issuance and receipt of the Manufacturer

9 of Tobacco Products permit. (Id. at ¶¶ 105, 121.)

10 Through Big Sandy Importing and Big Sandy Distributing, BSRE purchases tobacco

11 products for non-retail sale exclusively from Indian manufacturers in Indian Country. (Id. at

12 ¶¶ 117, 119, 120.) At the time of the filing of the FAC, BSRE purchased tobacco products from

13 two manufacturers: (1) Azuma Corporation, a corporation formed under the laws of and wholly

14 owned by the Alturas Indian Rancheria, a federally-recognized Indian tribe with offices located

15 on the Alturas Indian Rancheria, 901 County Road 56, Alturas, California; and (2) Grand River

16 Enterprises Six Nations, Ltd. (“Grand River Enterprises”), a Canadian corporation wholly-owned

17 by members of the Six Nations of the Grand River, a recognized First Nation of Canada, with

18 offices located on the Six Nations of the Grand River Reserve, 2176 Chiefswood Road,

19 Ohsweken, Ontario, Canada.2 (Id. at ¶ 117.) Big Sandy Importing imports tobacco products

20 exclusively from Grand River Enterprises exclusively for resale to Big Sandy Distributing. (Id. at

21 ¶ 119.) Big Sandy Distributing purchases other tobacco products exclusively from Azuma

22 Corporation. (Id. at ¶ 120.) All tobacco products purchased by Big Sandy Distributing are

23 purchased and received at its warehouse facilities on the Tribe’s reservation in Auberry,

24 California. (Id. at ¶ 122.) Big Sandy Distributing then resells and distributes those tobacco

25 1 Though similar in name, plaintiff alleges that Big Sandy Distributing differs from Big Sandy

Distribution. (Id. at ¶ 103.)

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27 2 In its reply to CDTFA’s motion to dismiss for lack of jurisdiction, plaintiff represents that it no

longer imports Grand River Enterprises cigarettes, and only sells them to the extent that plaintiff

28 has any remaining stock on hand. (Doc. No. 20 at 9.)

1 products exclusively to Indian reservation-based retailers operating within Indian Country within

2 the geographical limits of the State of California. (Id. at ¶ 123.)

3 Between 2011 and 2016, the California Attorney General sent written correspondence to

4 Big Sandy Distributing claiming that it was in violation of various California laws. (Id. at ¶¶

5 134–61.) In its July 12, 2016 letter to Tribal Chairperson Elizabeth Kipp, for example, the State

6 alleged that: (1) Big Sandy Distributing sells cigarettes not listed on the Tobacco Directory; (2)

7 the manufacturers of the cigarettes sold by Big Sandy Distributing are not licensed by the State;

8 (3) Big Sandy Distributing does not have a license to import or distribute cigarettes or other

9 tobacco products in the State; (4) Big Sandy Distributing has not collected and remitted taxes due

10 to the State on its taxable distributions; and (5) Big Sandy Distributing does not have a State-

11 issued permit to transport untaxed cigarettes. (Id. at ¶ 160; Doc. No. 13-11.) BSRE alleges that

12 the State seeks to force tribes to comply with the MSA and California’s implementation thereof in

13 order to “protect Big Tobacco and maintain Big Tobacco’s sales volumes and market share

14 through compelled price parity.” (FAC at ¶ 162.)

15 D. Procedural History

16 On July 13, 2018, BSRE filed a complaint for declaratory and injunctive relief against

17 defendants Xavier Becerra, in his official capacity as Attorney General of the State of California,

18 and Nicolas Maduros, in his official capacity as Director of the CDTFA. (Doc. No. 1.) BSRE

19 filed a first amended complaint on October 8, 2018. (Doc. No. 13.) Therein, BSRE brings the

20 following five causes of action, alleging: (1) federal common law and tribal sovereignty preempt

21 the application to it of the State’s Complementary Statute; (2) the Indian Trader Statutes preempt

22 the application to it of the State’s Complementary Statute; (3) federal common law and tribal

23 sovereignty preempt application to it of the State’s licensing requirements; (4) the Indian Trader

24 Statutes preempt the application to it of the State’s licensing requirements; and (5) federal law

25 and tribal sovereignty preempt application to it of the State’s Cigarette Tax Law. (Id. at ¶¶ 163–

26 97.) BSRE seeks a declaration that the Complementary Statute, Licensing Act, and Cigarette Tax

27 Law are preempted by federal law, as well as an injunction against defendants from enforcing,

28 applying, or implementing such laws against it. (Id. at 36.)

1 On October 22, 2018, the California Attorney General filed a motion to dismiss for failure

2 to state a claim and CDTFA filed a motion to dismiss for lack of jurisdiction. (Doc. Nos. 15, 16.)

3 BSRE filed its oppositions on January 8, 2019. (Doc. Nos. 20, 21.) Defendants filed replies on

4 January 24 and January 25, 2019. (Doc. Nos. 23, 24.)

5 The court held a hearing on the motions on April 16, 2019 and took the matter under

6 submission. (Doc. No. 32.) On May 17, 2019, plaintiff filed a request for leave to file

7 supplemental briefing, which the court granted. (Doc. Nos. 35, 36.) On May 31, 2019, plaintiff

8 filed its supplemental brief. (Doc. No. 41.) On June 7, 2019, defendants filed a joint

9 supplemental response. (Doc. No. 42.)

10 LEGAL STANDARD

11 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

12 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

13 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

14 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

15 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain “a short and plain statement of the

16 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though Rule 8(a)

17 does not require detailed factual allegations, a plaintiff is required to allege “enough facts to state

18 a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

19 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). “A claim has facial plausibility

20 when the plaintiff pleads factual content that allows the court to draw the reasonable inference

21 that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

22 In determining whether a complaint states a claim on which relief may be granted, the

23 court accepts as true the allegations in the complaint and construes the allegations in the light

24 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.

25 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth

26 of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. Ringrose, 788

27 F.2d 638, 643 n.2 (9th Cir. 1986). It is inappropriate to assume that the plaintiff “can prove facts

28 which it has not alleged or that the defendants have violated the . . . laws in ways that have not

1 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459

2 U.S. 519, 526 (1983).

3 ANALYSIS

4 A. Defendants’ Motion to Dismiss the Fifth Cause of Action for Lack of Jurisdiction

5 The Attorney General and CDTFA each move to dismiss plaintiff’s fifth cause of action,

6 which “seeks a judicial declaration that the Tribe has no liability—either directly or pursuant to a

7 collection and remittance requirement—for the taxes imposed under the Cigarette and Tobacco

8 Products Tax Law for the cigarettes and tobacco products it distributes.” (FAC at ¶ 197.)

9 Defendants contend that under the Tax Injunction Act (“TIA”), the court lacks jurisdiction to

10 issue declaratory or injunctive relief enjoining, suspending, or restraining the collection of state

11 taxes. (Doc. No. 15-1 at 18–21; Doc. No. 16-1 at 7–9.)

12 The TIA provides that “[t]he district courts shall not enjoin, suspend or restrain the

13 assessment, levy or collection of any tax under State law where a plain, speedy and efficient

14 remedy may be had in the courts of such State.” 28 U.S.C. § 1341. This provision applies to both

15 declaratory and injunctive relief. California v. Grace Brethren Church, 457 U.S. 393, 408–09

16 (1982). The Supreme Court has recognized that the principal purpose of the TIA is “to limit

17 drastically federal district court jurisdiction to interfere with so important a local concern as the

18 collection of taxes.” Id. (quoting Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 522 (1981)).

19 Defendants argue that plaintiff’s fifth cause of action challenging the application to it of

20 the Cigarette Tax Law is prohibited by the TIA. According to defendants, this court is divested of

21 jurisdiction because the Supreme Court and the Ninth Circuit Court of Appeals have repeatedly

22 held that California’s tax procedures provide “a plain, speedy and efficient remedy.” See

23 Franchise Tax Bd. of Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 338 (1990) (“To the extent they

24 are available, California’s refund procedures constitute a plain, speedy, and efficient remedy.”);

25 Grace Brethren Church, 457 U.S. at 414 n.31, 417 (holding that remedy under California state

26 law was “plain, speedy and efficient” within the meaning of the TIA where appellees could seek a

27 refund of their state unemployment insurance taxes, and noting that “the California administrative

28 and judicial scheme for challenging a tax assessment is remarkably similar to the Illinois scheme

1 that we upheld in Rosewell as ‘plain, speedy and efficient’”); Jerron W., Inc. v. Cal. State Bd. of

2 Equalization, 129 F.3d 1334, 1339 (9th Cir. 1997) (“The Supreme Court and this court have

3 concluded that California’s tax refund remedy is generally a ‘plain, speedy and efficient’ remedy

4 under the Act.”); Mandel v. Hutchinson, 494 F.2d 364, 367 (9th Cir. 1974) (“We have held

5 previously that the California refund procedure is a plain, speedy and efficient remedy.”).

6 Plaintiff argues that the TIA does not bar its fifth cause of action for two reasons: (1) the

7 relief that plaintiff seeks would not altogether halt the State’s collection of taxes due on cigarettes

8 distributed by BSRE, but would merely declare that the tax falls on the cigarette consumer, and

9 that the responsibility to collect and remit the tax to the State falls on the retailer, not on BSRE;

10 and (2) Indian tribes are exempt from the TIA. (Doc. No. 20 at 13.) The court considers each

11 argument in turn below.

12 1. Whether the Tax Injunction Act Applies to Plaintiff’s Fifth Cause of Action

13 Plaintiff first asserts that the TIA does not bar every suit that “merely inhibits” or has a

14 “negative impact” on the assessment, levy, or collection of a state tax, but that the key inquiry “is

15 whether the relief to some degree stops ‘assessment, levy or collection.’” (Id.) Because the relief

16 sought here would not stop the State’s collection of taxes owed by the taxpayer, plaintiff argues

17 that its fifth cause of action does not fall within the TIA’s scope. (Id.) The sole authority plaintiff

18 relies on in support of its proposition that the TIA applies only where the requested relief would

19 “stop” the State’s collection of taxes is the decision in Direct Marketing Association v. Brohl, ___

20 U.S. ___, 135 S. Ct. 1124 (2015).

21 An examination of the facts in Brohl, however, reveals that it is of limited relevance to

22 this case. The plaintiff in Brohl challenged a Colorado law imposing notice and reporting

23 requirements on retailers who did not collect sales tax. Id. at 1127–28. In that context the

24 Supreme Court held that the TIA did not bar plaintiff’s suit, because “[t]he TIA is keyed to the

25 acts of assessment, levy, and collection themselves, and enforcement of the notice and reporting

26 requirements is none of these.” Id. at 1131. Here, in contrast, plaintiff BSRE seeks a declaration

27 that it has no liability for the taxes imposed under California’s Cigarette Tax Law. The Cigarette

28 Tax Law, unlike the notice and reporting requirements in Brohl, is clearly an act of “assessment,

1 levy or collection,” see supra at 2, and thus falls squarely within the scope of the TIA’s

2 prohibition.

3 2. Whether Plaintiff Is Exempt from the Tax Injunction Act under 28 U.S.C. § 1362

4 Plaintiff next asserts that the TIA’s prohibition does not extend to it because district courts

5 have original jurisdiction “of all civil actions, brought by any Indian tribe or band with a

6 governing body duly recognized by the Secretary of the Interior, wherein the matter in

7 controversy arises under the Constitution, laws, or treaties of the United States.” 28 U.S.C.

8 § 1362; see also Moe v. Confederated Salish & Kootenai Tribes of Flathead Reservation, 425

9 U.S. 463, 470–74 (1976) (recognizing an exemption from the TIA for Indian tribes under 28

10 U.S.C. § 1362). Although the Tribe is not a party to this action, plaintiff argues that the Tribe and

11 BSRE “are nothing but two faces of the same Tribe, each possessing the Tribe’s right to test in

12 federal court a state tax system’s compliance with federal law.” (Doc. No. 20 at 12.) Plaintiff

13 contends that this conclusion necessarily follows from the decision in Mescalero Apache Tribe v.

14 Jones, 411 U.S. 145 (1973). There, the Supreme Court found that, although it was unclear from

15 the record whether the Mescalero Apache Tribe had incorporated itself under section 17 of the

16 IRA, or if it was operating as the constitutional entity organized under section 16 of the IRA, “[i]n

17 any event, the question of tax immunity cannot be made to turn on the particular form in which

18 the Tribe chooses to conduct its business.” Id. at 157 n.13.

19 In a supplemental brief filed with this court, plaintiff corrected its allegations in the FAC

20 that the Big Sandy Rancheria Band of Western Mono Indians was constitutionally organized

21 under section 16 of the IRA, clarifying that on June 8, 1935, the Tribe had in fact voted against

22 the application of the IRA.3 (Doc. No. 41 at 6.) The Tribe adopted its non-IRA constitution

23 under its inherent sovereign power and rejected the need for approval of its constitution by the

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3 The court notes that, in ruling on a motion to dismiss under Rule 12(b)(6), “a court may not

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look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to

a defendant’s motion to dismiss.” Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th

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Cir. 1998); accord Comm. to Protect our Agric. Water v. Occidental Oil & Gas Corp., 235 F.

27 Supp. 3d 1132, 1154 (E.D. Cal. 2017). Here, even considering plaintiff’s corrected allegations in

its supplemental brief, the mechanism by which the Tribe established its governing body has no

28 bearing on the court’s analysis below because it is not a party to this action.

1 Secretary of the Interior. (Id.) Plaintiff argues that, notwithstanding the Tribe’s rejection of the

2 IRA, the Secretary nonetheless issued a section 17 charter to plaintiff BSRE. (Id. at 7) (citing 25

3 U.S.C. § 5126, which provides that the Secretary may issue a charter of incorporation to a tribe

4 despite the tribe’s vote against the IRA’s application). According to plaintiff, the Secretary’s

5 issuance of the section 17 charter to BSRE renders BSRE “duly recognized by the Secretary of

6 the Interior,” and therefore qualifies it for exemption under 28 U.S.C. § 1362. (Id.)

7 Defendants do not dispute that Indian tribes are exempt from the TIA’s prohibition, but do

8 dispute that plaintiff BSRE is equivalent to an Indian tribe. Defendants argue that BSRE, as a

9 corporation organized under section 17 of the IRA, is a distinct entity from the Big Sandy

10 Rancheria Band of Western Mono Indians—regardless of how the latter is constitutionally

11 organized—and that BSRE therefore cannot invoke the Tribe’s jurisdiction under 28 U.S.C.

12 § 1362 or its exemption from the TIA.

13 The court observes that, in plaintiff’s original complaint, it alleged that BSRE “is a

14 federally-chartered corporation” “wholly owned by the Big Sandy Rancheria Band of Western

15 Mono Indians.” (Doc. No. 1 at ¶¶ 9, 79, 80.) After defendants filed their initial motions to

16 dismiss, arguing, as they do here, that the court lacked jurisdiction over plaintiff’s tax challenge

17 pursuant to the TIA (see Doc. Nos. 10, 11), plaintiff filed a FAC that ostensibly attempts to

18 obfuscate the distinction between itself and the Tribe. (Compare Doc. No. 1 at 1, 3 (defining the

19 Big Sandy Rancheria Band of Western Mono Indians as the “Tribe” and describing BSRE as

20 “wholly owned” by the Tribe), with FAC at 1 & ¶ 10 (defining both BSRE and the Big Sandy

21 Rancheria Band of Western Mono Indians as the “Tribe”)). Notwithstanding the artful pleading

22 of the FAC, the Supreme Court and others have consistently recognized that a tribal corporation

23 organized under section 17 of the IRA is legally distinct from the governing body organized

24 under section 16 of the IRA.4 See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 145–46

25 (1982) (distinguishing between tribe’s “role as a commercial partner” and its “role as sovereign”);

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27 4 Here, the Tribe is not organized under section 16 of the IRA. Nonetheless, there would appear

to be no reason why the distinction between the constitutional body and the section 17

28 corporation would not apply under these circumstances.

1 Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492–93 (9th Cir. 2002) (“Most courts that have

2 considered the issue have recognized the distinctness of these two entities.”) (citing Ramey

3 Constr. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, 320 (10th Cir. 1982)).

4 An opinion by the Department of the Interior reinforces this distinction.5 The

5 Commission of Indian Affairs requested an opinion from the Office of the Solicitor as to whether

6 an Indian tribe organized pursuant to section 16 of the IRA was the same legal entity as the

7 incorporated tribe chartered pursuant to section 17. See Atkinson v. Haldane, 569 P.2d 151, 172

8 (Alaska 1977) (discussing opinion). The Solicitor found:

9 The purpose of Congress in enacting section 16 of the Indian

Reorganization Act was to facilitate and to stabilize the tribal

10 organization of Indians residing on the same reservation, for their

common welfare. It provided their political organization. The

11 purpose of Congress in enacting section 17 of the Indian

Reorganization Act was to empower the Secretary to issue a charter

12 of business incorporation to such tribes to enable them to conduct

business through this modern device, which charter cannot be

13 revoked or surrendered except by act of Congress. This corporation,

although composed of the same members as the political body, is to

14 be a separate entity, and thus more capable of obtaining credit and

otherwise expediting the business of the tribe, while removing the

15 possibility of federal liability for activities of that nature. As a result,

the powers, privileges and responsibilities of these tribal

16 organizations materially differ.

17 Id. (as quoted).

18 Because BSRE, as a section 17 incorporated tribe, is a distinct entity from the Tribe in its

19 constitutional form, the court concludes that BSRE is not exempt from the TIA’s jurisdictional

20 bar. The Ninth Circuit has held that “[s]ection 1362 makes no provision for wholly controlled or

21 owned subordinate economic tribal entities, nor did the Supreme Court in Moe suggest that

22 section 1362 provided for jurisdiction beyond the plain language of the statute, that is, beyond

23 Indian tribes or bands.” Navajo Tribal Util. Auth. v. Ariz. Dep’t of Revenue, 608 F.2d 1228, 1231

24 (9th Cir. 1979). In Navajo, the Ninth Circuit made clear that “[s]uits brought by tribal

25 corporations have . . . been found to fall outside the scope of section 1362. . . . Native

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5 The opinion of the Solicitor is entitled to great weight. See United States v. Jackson, 280 U.S.

27 183, 193 (1930) (“It is a familiar rule of statutory construction that great weight is properly to be

given to the construction consistently given to a statute by the Executive Department charged

28 with its administration.”).

1 corporations are not tribes or bands.” Id. at 1231 (citation and quotation marks omitted). In that

2 same opinion, the Ninth Circuit rejected the argument that plaintiff puts forth here relying on

3 Mescalero, holding that Mescalero “speaks only to the question of tax immunity, not to the

4 question of federal jurisdiction.” Id. at 1233.

5 Plaintiff attempts to distinguish the Ninth Circuit’s holding in Navajo that tribal

6 corporations fall outside the scope of § 1362 by arguing that the court in Navajo did not

7 specifically address section 17 tribal corporations. (Doc. No. 41 at 8–12.) Plaintiff contends that

8 the plaintiff corporation in Navajo was a “subordinate” and “semi-autonomous” entity that was

9 not synonymous with the tribal council, and that there was no indication that the tribal council

10 had authorized the corporation’s litigation. (Id. at 11.) Plaintiff argues that here, in contrast, its

11 Board and the Tribe are synonymous because they are composed of the exact same members, and

12 that there is therefore no concern that plaintiff’s interests diverge from those of the Tribe. (Id. at

13 11–12.) The court acknowledges that the plaintiff corporation and the Tribe in this case have a

14 much closer relationship than the tribe and the corporation in Navajo. Nonetheless, the holding in

15 Navajo did not hinge on the overlap of interests between the political and corporate entities. In

16 fact, the plaintiff corporation in Navajo argued that it sought to protect interests identical to those

17 of the tribe. Navajo, 608 F.2d at 1234. Still, the Ninth Circuit noted that the tribe had chosen not

18 to join the litigation, and that even if the corporation’s interests were identical to the tribe’s, “the

19 Tribe itself will be able to protect those interests, should its leadership decide to do so.” Id. at

20 1233–34.

21 Finally, the plain language of § 1362 indicates that jurisdiction is only conferred on the

22 district courts when an action is brought by an “Indian tribe or band with a governing body duly

23 recognized by the Secretary of the Interior.” Plaintiff argues that, by its terms, the statute does

24 not distinguish between an “Indian tribe or band” organized under section 16 or section 17 of the

25 IRA, and that this failure to expressly limit § 1362 to actions brought by tribes in their

26 governmental capacity suggests that Congress intended the provision to apply to incorporated

27 tribes as well. (Doc. No. 41 at 12–13.) Furthermore, plaintiff argues that nothing in the

28 legislative history of § 1362 indicates that it was intended to apply only to tribes acting in a

1 governmental capacity, even though Congress was aware when it passed § 1362 that Indian tribes

2 could act in both sovereign and proprietary capacities. (Id.) These same arguments were

3 articulated long ago by Judge Betty Fletcher in her dissent in White Mountain Apache Tribe v.

4 Williams, 810 F.2d 844, 868 (9th Cir. 1985) (Fletcher, J., dissenting). The fact that the majority

5 opinion in that case neither reached nor adopted the reasoning of that dissent, nor has any other

6 court as far as the undersigned can determine, is telling.

7 Even accepting for the sake of argument that BSRE qualifies as an “Indian tribe or band,”

8 plaintiff provides no authority for the proposition that it has “a governing body duly recognized

9 by the Secretary of the Interior.” The allegations of plaintiff’s own complaint acknowledge that it

10 is “Big Sandy Rancheria of Western Mono Indians of California”, not BSRE, that is recognized

11 by the Bureau of Indian Affairs. (FAC at ¶ 17.) In its supplemental brief in opposition to the

12 pending motion to dismiss, plaintiff argues for the first time that it has a Secretarially-recognized

13 governing body because it is governed by a Board of Directors that is one and the same as the

14 constitutional Tribal Council, and that the Tribal Council is recognized by the Secretary. (Doc.

15 No. 41 at 12–13.) Even if the court were to consider this new argument,6 plaintiff has not

16 provided, and the court has not found, any authority supporting it. As defendants note (Doc. No.

17 42 at 5–6), recognition of a tribe’s governing body has a specific meaning. In passing the law

18 creating the published list of recognized tribes, Congress explained:

19 “Recognized” is more than a simple adjective; it is a legal term of

art. It means that the government acknowledges as a matter of law

20 that a particular Native American group is a tribe by conferring a

specific legal status on that group, thus bringing it within Congress’

21 legislative powers. This federal recognition is no minor step. A

formal political act, it permanently establishes a government-to-

22 government relationship between the United States and the

recognized tribe as a “domestic dependent nation,” and imposes on

23 the government a fiduciary trust relationship to the tribe and its

members.

24

25 H.R. REP. NO. 103-781, at 2 (1994), reprinted in 1994 U.S.C.C.A.N. 3768, 3769 (footnote

26

27 6 As noted above, “[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not

look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition to

28 a defendant’s motion to dismiss.” Schneider, 151 F.3d at 1197 n.1.

1 omitted). The court is unpersuaded that merely because the Tribal Council qualifies for this

2 “specific legal status” that BSRE’s Board of Directors necessarily qualifies as well.

3 Federal courts possess only limited jurisdiction, and “statutory jurisdictional doubts are to

4 be resolved against federal jurisdiction.” Navajo Tribal Util. Auth., 608 F.2d at 1233.

5 Considering the material differences in the powers of the tribe as a political entity versus a

6 corporate entity, the Ninth Circuit’s holding in Navajo, and the language of § 1362, the court

7 concludes that plaintiff’s challenge to the State’s Cigarette Tax Law is barred by the TIA.

8 Plaintiff’s fifth cause of action will therefore be dismissed for lack of subject matter jurisdiction.

9 B. The Motion to Dismiss the Remaining Causes of Action for Failure to State a Claim

10 Plaintiff’s remaining causes of action contend that the State’s Complementary Statute and

11 licensing requirements are preempted by federal common law and the principal of tribal

12 sovereignty, as well as the federal Indian Trader Statutes, 25 U.S.C. §§ 261–264. California’s

13 Attorney General argues that plaintiff’s claims in this regard fail as a matter of law.

14 1. State Regulation and Tribal Sovereignty

15 Before turning to the merits of the pending motion, the court pauses to summarize the

16 preemption principles governing state regulatory authority over tribal affairs. Historically, the

17 notion of Indian communities as semi-independent nations meant that states could not impose

18 their laws on Indians living in Indian country. See Worcester v. Georgia, 31 U.S. 515, 520 (1832)

19 (“[T]he laws of [a state could] have no force . . . but with the assent of the [Indians] themselves,

20 or in conformity with treaties, and with the acts of congress.”). Since that time, however,

21 “Congress has to a substantial degree opened the doors of reservations to state laws.” Organized

22 Vill. of Kake v. Egan, 369 U.S. 60, 74 (1962); see also White Mountain Apache Tribe v. Bracker,

23 448 U.S. 136, 141 (1980) (“Long ago the Court departed from Mr. Chief Justice Marshall’s view

24 that ‘the laws of [a State] can have no force’ within reservation boundaries.”) (quoting Worcester,

25 31 U.S. at 520); McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 171 (1973) (“[N]otions

26 of Indian sovereignty have been adjusted to take account of the State’s legitimate interests in

27 regulating the affairs of non-Indians.”). Thus, the bright line recognized in the early nineteenth

28 century has yielded to the modern view, which recognizes that “[w]hile they are sovereign for

1 some purposes, it is now clear that Indian reservations do not partake of the full territorial

2 sovereignty of States or foreign countries.” Washington v. Confederated Tribes of Colville Indian

3 Reservation, 447 U.S. 134, 165 (1980). Nonetheless, “Indian tribes retain attributes of

4 sovereignty over both their members and their territory,” Bracker, 448 U.S. at 142 (citation and

5 quotation marks omitted), and still have the right “to make their own laws and be governed by

6 them.” Nevada v. Hicks, 533 U.S. 353, 361 (2001).

7 A substantial body of Supreme Court case law has developed in this area, such that there

8 is no longer a rigid rule “by which to resolve the question whether a particular state law may be

9 applied to an Indian reservation or to tribal members.” Bracker, 448 U.S. at 142. Congressional

10 authority to regulate tribal affairs under the Indian Commerce Clause and the semi-independent

11 position of Indian tribes have given rise to “two independent but related barriers to the assertion

12 of state regulatory authority over tribal reservations and members.” Id. First, the exercise of state

13 authority may be preempted by federal law; and second, the exercise of state authority may

14 unlawfully infringe on the right of tribal self-government. Id. As the Supreme Court explained in

15 Bracker:

16 The two barriers are independent because either, standing alone, can

be a sufficient basis for holding state law inapplicable to activity

17 undertaken on the reservation or by tribal members. They are related,

however in two important ways. The right of tribal self-government

18 is ultimately dependent on and subject to the broad power of

Congress. Even so, traditional notions of Indian self-government are

19 so deeply engrained in our jurisprudence that they have provided an

important backdrop against which vague or ambiguous federal

20 enactments must always be measured.

21 Id. at 143 (internal citation and quotation marks omitted).

22 The key factors in applying these principles to the area of state taxation are (1) who is

23 being regulated and (2) where the activity to be regulated takes place. See Wagnon v. Prairie

24 Band Potawatomi Nation, 546 U.S. 95, 101 (2005) (“[U]nder our tax immunity cases, the ‘who’

25 and the ‘where’ of the challenged tax have significant consequences.”); see also Muscogee

26 (Creek) Nation v. Pruitt, 669 F.3d 1159, 1171 (10th Cir. 2012) (“Application of the preemption

27 and infringement barriers depends on the factors of ‘who’—Indians or non-Indians—and

28 ‘where’—in or outside the tribe’s Indian country.”).

1 When the conduct to be regulated occurs on reservation and involves only Indians, “state

2 law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the

3 federal interest in encouraging tribal self-government is at its strongest.” Bracker, 448 U.S. at

4 144.

5 In contrast, when a state asserts authority over the conduct of non-Indians engaging in

6 activity on tribal lands, courts must undertake a fact-specific balancing test. Bracker, 448 U.S. at

7 144–45. The Supreme Court held in Bracker that “[t]his inquiry is not dependent on mechanical

8 or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry

9 into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine

10 whether, in the specific context, the exercise of state authority would violate federal law.” Id.;

11 see also Wagnon, 546 U.S. at 110–11 (specifying that the Bracker interest-balancing test applies

12 “only where the legal incidence of the tax [falls] on a nontribal entity engaged in a transaction

13 with tribes or tribal members . . . on the reservation”) (citation and quotation marks omitted).

14 Finally, when Indians go “beyond reservation boundaries,” absent express federal law to

15 the contrary, they are “subject to nondiscriminatory state law otherwise applicable to all citizens

16 of the State.” Mescalero, 411 U.S. at 148–49. In such circumstances, the Bracker interest-

17 balancing test is inapplicable. Wagnon, 546 U.S. at 113.

18 2. Plaintiff’s Challenge to the State’s Complementary Statute

19 As explained above, the Complementary Statute, or Directory Statute, requires non-

20 participating manufacturers to the MSA to provide assurances to the California Attorney

21 General’s Office that they will meet their obligations under the Escrow Statute. See Cal. Rev. &

22 Tax. Code § 30165.1(b). Manufacturers that provide such assurances are placed on the Tobacco

23 Directory, and their cigarettes may be sold to consumers in the State. Id. § 30165.1(c). A

24 manufacturer’s failure to meet its obligations or provide such assurances, however, renders its

25 cigarettes contraband, unlawful for sale to consumers and forfeitable to the State. See id. §

26 30436(e).

27 Here, plaintiff asserts that the State has accused it of distributing “off-directory” cigarettes

28 in violation of the Complementary Statute. (FAC at ¶ 156; Doc. No. 13-10 at 3.) Plaintiff alleges

1 in its first and second causes of action that the State’s Complementary Statute may not be applied

2 to its sales activities because BSRE exclusively distributes tobacco products to Indian tribes and

3 Indian tribal members on their respective reservations. According to plaintiff, “because BSRE

4 distributes to Indian purchasers in Indian country, the Indian Trader Statues and the policy of

5 leaving Indians free from State jurisdiction and control preemptively govern such sales, leaving

6 no room for the State’s Directory Statute to dictate which products BSRE may sell or the prices it

7 must charge.” (Doc. No. 21 at 10.)

8 California’s Attorney General argues that the Complementary Statute validly restricts the

9 kinds of cigarettes plaintiff may sell to the public. Even accepting as true that BSRE only

10 distributes to other Indian tribes or tribal members within Indian Country, the Attorney General

11 contends that when BSRE is “going beyond reservation boundaries,” it is subject to, and must

12 comply with, “nondiscriminatory state law otherwise applicable to all citizens of the State.”

13 (Doc. No. 24 at 10–11) (quoting Mescalero, 411 U.S. at 148–49). Unless expressly prohibited by

14 federal law, activities conducted by Indians off the reservation are subject to non-discriminatory

15 state laws. See Mescalero, 411 U.S. at 148–49 (“Absent express federal law to the contrary,

16 Indians going beyond reservation boundaries have generally been held subject to non-

17 discriminatory state law otherwise applicable to all citizens of the State.”); see also Bracker, 448

18 U.S. at 144 n.11 (“In the case of Indians going beyond reservation boundaries, . . . a

19 nondiscriminatory state law is generally applicable in the absence of express federal law to the

20 contrary.”) (citation and quotation marks omitted).

21 The court must therefore determine whether BSRE’s sales activities can properly be

22 deemed as “going beyond reservation boundaries.” As alleged in the FAC, BSRE currently

23 purchases tobacco products from two manufacturers, Azuma Corporation, located in Alturas,

24 California, and Grand River Enterprises, located in Ontario, Canada. (FAC at ¶ 117.) All

25 tobacco products purchased by Big Sandy Distributing are purchased and received at its

26 warehouse facilities on the Tribe’s reservation in Auberry, California. (Id. at ¶ 122.) Big Sandy

27 Distributing then resells and distributes those tobacco products exclusively to Indian reservation-

28 based retailers operating in Indian Country within the State. (Id. at ¶ 123.) These transactions

1 clearly extend beyond the boundaries of a single reservation. Moreover, defendant contends that

2 these transactions necessarily involve “off-reservation” activity because plaintiff distributes goods

3 to buyers located on other reservations, and the Big Sandy Rancheria does not border any other

4 reservation. (Doc. No. 15-1 at 23.) Plaintiff argues, however, that its transactions are

5 distinguishable from the “off-reservation” activities in Mescalero. (Doc. No. 21 at 13.) Plaintiff

6 points out that in Mescalero, the Mescalero Apache Tribe had opened a ski resort adjacent to, but

7 completely outside the boundaries of the tribe’s reservation. See Mescalero, 411 U.S. at 146.

8 Here, in contrast, BSRE emphasizes that it “exclusively distributes tobacco products to Indian

9 tribes and Indian tribal members on their land” and does not make any sales to non-members or

10 the general public. (Doc. No. 21 at 11.)

11 Notably, tribe-to-tribe transactions involving the movement of goods through a State,

12 including outside of Indian country, are not immune from state regulation. Indeed, many courts

13 have affirmed states’ off-reservation authority to enforce state laws. See, e.g., Colville, 447 U.S.

14 at 161–62 (authorizing off-reservation seizures, noting “[i]t is significant that these seizures take

15 place outside the reservation, in locations where state power over Indian affairs is considerably

16 more expansive than it is within reservation boundaries”); Narrangansett Indian Tribe v. Rhode

17 Island, 449 F.3d 16, 21 (1st Cir. 2006) (“It is beyond peradventure that a state may seize

18 contraband located outside Indian lands but in transit to a tribal smoke shop.”). According to

19 defendant, these cases demonstrate that, even if plaintiff distributes tobacco products only to other

20 Indian tribes and tribal members on their own reservations, this activity nonetheless takes place

21 “off-reservation,” such that the State is empowered to enforce its laws with respect to such

22 activity. See State ex rel. Edmondson v. Native Wholesale Supply, 237 P.3d 199, 216 (Okla.

23 2010) (“The entire process comprising these sales thus takes place in multiple locations both on

24 and off different tribal lands. This is not on-reservation conduct . . . , but rather off-reservation

25 conduct by members of different tribes.”).

26 The Tenth Circuit decision in Muscogee (Creek) Nation v. Pruitt is instructive in this

27 regard. There, just as here, Oklahoma had enacted statutes requiring tobacco product

28 manufacturers to either enter into and make payments to the state under the MSA, or to pay a

1 certain percentage of each sale into an escrow fund. Muscogee, 669 F.3d at 1164–65. Any brand

2 of cigarette produced by a manufacturer that did not comply with those requirements was deemed

3 contraband. Id. Muscogee (Creek) Nation (“MCN”) objected to those requirements as violative

4 of tribal sovereignty and the federal Indian Trader Statutes.

5 The Tenth Circuit held that MCN “fails to state a plausible claim that [Oklahoma’s]

6 Escrow Statue and Complementary Act are preempted by federal law or infringe on its tribal

7 sovereignty.” Id. at 1183. Relying on the Supreme Court decisions in Mescalero and Colville,

8 the Tenth Circuit found that “when Indians (‘who’) act outside of their own Indian country

9 (‘where’), including within the Indian country of another tribe, they are subject to non-

10 discriminatory state laws otherwise applicable to all citizens of the state.” Id. at 1172 (emphasis

11 added) (citing Mescalero, 411 U.S. at 148–49; Colville, 447 U.S. at 161). The Tenth Circuit went

12 on to hold that “[n]othing in the Indian Trader Statutes specifically preempts the Escrow Statute

13 or the Complementary Act,” and noted that the Supreme Court had previously held that the Indian

14 Trader Statutes “do not bar the States from imposing reasonable regulatory burdens upon Indian

15 traders for enforcement of valid state taxes.” Id. at 1181–82 (quoting Milhelm, 512 U.S. at 74

16 (brackets omitted)). Moreover, the Tenth Circuit in Muscogee found that the “ancillary effect” of

17 the enforcement of these statutes was simply that MCN’s members could not buy contraband

18 cigarettes, and that “such an indirect effect does not establish a preemption or an infringement of

19 tribal sovereignty claim.” Id. at 1183.

20 Plaintiff in this case attempts to distinguish the holding in Muscogee on the ground that

21 the tax and regulatory scheme at issue in that case is “substantially different” from that of

22 California, because “California, unlike Oklahoma, recognizes that the applicability of the

23 Directory Statute is directly tied to whether the cigarettes are sold in a manner that is exempt from

24 California’s excise taxes,” and further, “unlike Oklahoma, California’s cigarette excise taxes do

25 not arise until the cigarettes are distributed to an individual or entity that is obligated to pay the

26 excise tax.” (Doc. No. 21 at 16.) To this court, these appear to merely be distinctions without a

27 difference. Plaintiff fails to articulate how these distinctions were dispositive or even relevant to

28 the Tenth Circuit’s thorough analysis in Muscogee.

1 Moreover, contrary to plaintiff’s assertion, the Indian Trader Statutes do not expressly

2 prohibit the application of the Complementary Statute to plaintiff’s off-reservation activities.

3 Congress enacted the Indian Trader Statutes “to prevent fraud and other abuses by persons trading

4 with Indians.” Milhelm, 512 U.S. at 70. Among other provisions, the Indian Trader Statutes

5 provide that “the Commissioner of Indian Affairs shall have the sole power and authority to

6 appoint traders to the Indian tribes and to make such rules and regulations as he may deem just

7 and proper specifying the kind and quantity of goods and the prices at which such goods shall be

8 sold to the Indians.” 25 U.S.C. § 261. Plaintiff asserts that this federal law establishes that a state

9 has no right to impose taxes or other burdens on the transactions between Indian traders and the

10 Indian tribes and tribal members with whom they deal. (Doc. No. 21 at 14–15.) However, the

11 only authority cited by plaintiff for this proposition are the decisions in Warren Trading Post Co.

12 v. Arizona Tax Commission, 380 U.S. 685 (1965), and Central Machinery Co. v. Arizona State

13 Tax Commission, 448 U.S. 160 (1980). (Id.) Since those decisions were issued, however, the

14 Supreme Court has specifically clarified that “[a]lthough language in Warren Trading Post

15 suggests that no state regulation of Indian traders can be valid, our subsequent decisions have

16 ‘undermine[d]’ that proposition.” Dep’t of Taxation and Fin. of N.Y. v. Milhelm Attea & Bros.,

17 Inc., 512 U.S. 61, 71 (1994) (citing Central Machinery, 448 U.S. at 172 (Powell, J., dissenting)).

18 In fact, the Supreme Court went on to explain that the state law found to be preempted in Warren

19 Trading Post “was a tax directly ‘imposed upon Indian traders for trading with Indians. . . . That

20 characterization does not apply to regulations designed to prevent circumvention of ‘concededly

21 lawful’ taxes owed by non-Indians.” Id. at 74–75 (citations omitted). The Supreme Court in

22 Milhelm thus concluded, decades after the decision in Warren Trading Post, that “Indian traders

23 are not wholly immune from state regulation that is reasonably necessary to the assessment or

24 collection of lawful state taxes.” Id. at 75.

25 Plaintiff next argues that the State’s Complementary Statute is not a “regulation that is

26 reasonably necessary to the assessment or collection of lawful state taxes” under Milhelm,

27 because it is not a tax at all—rather, it is designed to compel enforcement of the Escrow Statute,

28 which in turn is designed to neutralize the cost disadvantages that participating manufacturers to

1 the MSA experience vis-à-vis their non-participating counterparts. (Doc. No. 21 at 15–16.) This

2 argument advanced by plaintiff overlooks the fact that in Milhelm and in other cases, the Supreme

3 Court has upheld state regulations that were not taxes strictly speaking, but were incidental

4 enforcement measures aimed at ensuring collection of lawful state taxes. See Milhelm, 512 U.S.

5 at 64–67 (upholding New York regulatory scheme imposing recordkeeping requirements and

6 quantity limitations on cigarette wholesalers who sell untaxed cigarettes to reservation Indians);

7 Colville, 447 U.S. at 159–60 (upholding Washington State cigarette tax enforcement scheme

8 requiring tribal retailers selling goods on the reservation to collect taxes on sales to nonmembers

9 and to keep extensive records of those transactions); Moe, 425 U.S. at 481–83 (upholding

10 Montana law requiring Indian retailers on tribal land to collect a state cigarette tax imposed on

11 sales to non-Indian consumers).

12 In sum, the court concludes that BSRE’s sales constitute off-reservation activities that,

13 unless expressly prohibited by federal law, are subject to non-discriminatory state laws otherwise

14 applicable to all citizens of the state. Plaintiff has not alleged that the Complementary Statute is

15 discriminatory in any way, and otherwise fails to allege facts that if proven would show that the

16 Statute is expressly prohibited by federal law. Accordingly, plaintiff’s challenge to the State’s

17 Complementary Statute fails as a matter of law.

18 3. Plaintiff’s Challenge to the State’s Licensing Requirements

19 Plaintiff asserts in its third and fourth causes of action that the State lacks authority to

20 require it to possess State-issued licenses or make regular reports of its in-state sales.

21 Although plaintiff acknowledges that states may impose “a minimal burden” on tribal

22 sellers on their reservation “designed to avoid a likelihood in its absence non-Indians . . . will

23 avoid payment of a concededly lawful tax,” Moe, 425 U.S. at 483, plaintiff contends that

24 California’s licensing requirements are not designed or reasonably tailored to achieve that goal.

25 In its supplemental brief in opposition to the pending motion to dismiss, plaintiff argues that none

26 of the reports it would be required to file under the State’s reporting regime would aid the

27 CDTFA or the California Attorney General in their efforts to track plaintiff’s downstream sales,

28 because the required reports do not provide information regarding the identity of the persons or

1 entities that purchase the tax-exempt cigarettes. (Doc. No. 41 at 14–21.) Plaintiff argues,

2 therefore, that the Attorney General “has very little interest to place on the scale opposite the

3 federal and tribal interests in Indian sovereignty and the Congress’s overriding goal of self-

4 government, self-determination, self-sufficiency and economic development.” (Id. at 20.)

5 The Attorney General disputes this characterization, insisting that California’s licensing

6 program ensures that cigarettes distributed in the State are “within the licensed distribution chain

7 by requiring participants at each level to hold a license, transact business with other license

8 holders, and either make regular reports of sales and distributions or maintain records CDTFA

9 could use to confirm such reports.” (Doc. No. 15-1 at 24.) The Attorney General contends that

10 even if all of plaintiff’s transactions are exempt from taxation, the State nonetheless has an

11 interest in tracking what happens to the cigarettes further down the distribution chain: that is,

12 “[e]ven if Plaintiff does not owe the tax, or Plaintiff’s customers do not owe the tax, the State’s

13 licensing and reporting requirements allow CDTFA to see if someone owes the tax, and then, if

14 they do, to collect it.” (Id. at 24–25.) Specifically, the Attorney General argues that the State’s

15 licensing and reporting requirements provide two critical pieces of information relevant to

16 plaintiff’s downstream sales: (1) how many cigarettes are brought into the State so that the State

17 knows the potential number of taxable transactions that could occur; and (2) who plaintiff’s

18 customers are, so that the State can obtain reporting from them and collect tax if they make

19 taxable distributions. (Doc. No. 42 at 7.) Plaintiff does not dispute that its reports would provide

20 the first. (See Doc. No. 41 at 17) (acknowledging that the Schedule 2A Cigarette Tax Receipt

21 Schedule would provide “the total number of units BSRE received”).7 With respect to the

22 second, the Attorney General argues that although BSRE’s reports would not list the identity of

23 its customers, each of its customers’ filings would list BSRE as the seller, thereby allowing the

24 State to compare BSRE’s aggregate monthly outflow with the monthly inflow reported by its

25

7 Plaintiff acknowledges that the Schedule 2A Cigarette Tax Receipt Schedule would also

26

provide the name of the person or entity that sold untaxed cigarettes to BSRE; the seller’s

27 CDTFA account number, if any; information regarding the location from which the cigarettes

originated; the product brand name; whether the shipment was for cartons or packs of cigarettes;

28 and the date of invoice and invoice number. (Doc. No. 41 at 17.)

1 customers, and to follow up in the event of discrepancies. (Doc. No. 42 at 8.) Lastly, the

2 Attorney General notes that, in addition to monthly reports, the State also requires distributors to

3 maintain and make available for examination underlying invoices and other records supporting

4 the required reports—and that distributors are therefore required to maintain and provide exactly

5 the kind of information that would aid the CDTFA and the Attorney General in tracking

6 plaintiff’s downstream sales. (Id.) (citing statutes). At bottom, the Attorney General contends

7 that the State’s licensing and reporting requirements impose only “a minimal burden designed to

8 avoid the likelihood that in [their] absence non-Indians purchasing from the tribal seller will

9 avoid payment of a . . . lawful tax.” (Doc. No. 15-1 at 24) (quoting Moe, 425 U.S. at 483).

10 Indeed, licensing schemes with even more demanding requirements than those of

11 California have been repeatedly upheld by the Supreme Court as imposing only “a minimal

12 burden.” See Milhelm, 512 U.S. at 64–67 (upholding New York regulatory scheme imposing

13 recordkeeping requirements and quantity limitations on cigarette wholesalers who sell untaxed

14 cigarettes to reservation Indians); Colville, 447 U.S. at 159–60 (upholding Washington State

15 cigarette tax enforcement scheme requiring tribal retailers selling goods on the reservation to

16 collect taxes on sales to nonmembers and to keep extensive records of those transactions); Moe,

17 425 U.S. at 481–83 (upholding Montana law requiring Indian retailers on tribal land to collect a

18 state cigarette tax imposed on sales to non-Indian consumers). Plaintiff argues that its submission

19 of the Cigarette Distributor’s Tax Report would be of little use to the State, because it would only

20 show that “one-hundred percent of BSRE’s ‘distributions’ were tax-exempt under the

21 Constitution and that the taxable value of BSRE’s ‘distributions’ would be zero.” (Doc. No. 41 at

22 16.) However, the limited information plaintiff would be providing reinforces the notion that the

23 reporting requirements pose a minimal burden on plaintiff. The Supreme Court has repeatedly

24 held that “the States have a valid interest in ensuring compliance with lawful taxes that might

25 easily be evaded through purchases of tax-exempt cigarettes on reservations; that interest

26 outweighs tribes’ modest interest in offering a tax exemption to customers who would ordinarily

27 shop elsewhere.” Milhelm, 512 U.S. at 73. By imposing licensing and recordkeeping

28 requirements on distributors, California does not dictate “the kind and quantity of goods and the

1 prices at which such goods shall be sold to the Indians.” 25 U.S.C. § 261. Under California law,

2 Indian traders remain free to sell any kind and quantity of cigarettes and at any price they wish.

3 Plaintiff has failed to plausibly allege that compliance with the State’s licensing and

4 recordkeeping requirements constitutes an excessive burden intruding on core tribal interests.

5 In its opposition to the pending motion, plaintiff disputes the relevance of the decision in

6 Milhelm to the instant case, stating only that the New York system at issue in that case “is very

7 different from California’s cigarette tax system.” (Doc. No. 21 at 28.) That New York’s

8 regulations are different from those of California is unconvincing, however, given that New

9 York’s regulations—which were upheld by the Supreme Court—appear to be objectively more

10 onerous than those at issue here. As the Attorney General argues in his reply, it would be

11 illogical for New York’s more onerous regulations to not be preempted but for California’s less

12 onerous regulations to be preempted. (Doc. No. 24 at 15.)

13 Plaintiff also argues that the Supreme Court’s decision in Colville is not instructive here

14 because it imposed requirements on retailers, who had a direct connection or direct transaction

15 with the taxable consumer. Here, because plaintiff is a wholesaler who sells exclusively to Indian

16 retailers who would themselves be exempt from taxation, plaintiff argues that application of the

17 State’s licensing requirements to it would serve no purpose. (Doc. No. 21 at 28–29.) Plaintiff

18 contends that because the licensing and reporting requirements are also imposed on the retailer,

19 only the records of the retailer would reveal whether a consumer owes the tax. (Id. at 29.)

20 This argument is also unpersuasive. In Milhelm, the Supreme Court explicitly rejected a

21 legal distinction between wholesale distributors and retailers for these purposes, observing that

22 “[i]t would be anomalous to hold that a State could impose tax collection and bookkeeping

23 burdens on reservation retailers who are themselves enrolled tribal members, . . . but that similar

24 burdens could not be imposed on wholesalers, who often (as in this case) are not.” 512 U.S. at

25 74. The Supreme Court declined to create a bright line between wholesalers and retailers,

26 recognizing that “[s]uch a ruling might well have the perverse consequence of casting greater

27 state tax enforcement burdens on the very reservation Indians whom the Indian Trader Statues

28 were enacted to protect.” Id. Even though that “perverse consequence” is not realized here,

1 | where plaintiff is a wholesale distributor and a tribal corporation, Milhelm nonetheless makes

2 | clear that preemption jurisprudence does not hinge on the distinction between wholesalers and

3 | retailers. Id.; accord Muscogee, 669 F.3d at 1177 (“Requiring wholesalers, who are the stamping

4 | agents, to be [|licensed helps protect the State’s valid interest in preventing evasion of its valid

5 || cigarette tax.”). In fact, the Supreme Court in Milhelm found that “because wholesale trade

6 | typically involves a comparatively small number of large-volume sales, the transactional

7 | recordkeeping requirements imposed on Indian traders in this case are probably less onerous than

8 | those imposed on retailers in Moe and Coleville.” 512 U.S. at 76.

9 In sum, other state programs involving similar, but also more demanding, licensing and

10 | recordkeeping requirements to that of California have been upheld by the Supreme Court against

11 | preemption challenges like those brought by plaintiff in this case. Plaintiffs attempt to retread

12 | old ground will not be permitted to proceed. The court finds that plaintiff's challenge to the

13 | State’s licensing requirements fails as a matter of law.

14 CONCLUSION

15 For the reasons set forth above,

16 1. The Attorney General’s motion to dismiss (Doc. No. 15) and CDTFA’s motion to

17 dismiss for lack of jurisdiction (Doc. No. 16) are granted;

18 2. Plaintiff's fifth cause of action is dismissed for lack of jurisdiction;

19 3. Plaintiff's remaining causes of action are dismissed with prejudice for failure to

20 state a claim; and

21 4. The Clerk of the Court is directed to close this case.

22 | IT IS SO ORDERED. me □

Dated: _ August 13, 2019 al, A □□□

24 UNITED STATES DISTRICT JUDGE

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