Amicus Curiae Brief — Geraldine Tyler, Petitioner v. Hennepin County, Minnesota, et al.

No. 22-166

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------GERALDINE TYLER,

Petitioner,

v.

HENNEPIN COUNTY, MINNESOTA, ET AL.,

Respondents.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

---------------------------------♦--------------------------------BRIEF OF MINNESOTA, NEW JERSEY

AND OREGON AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------KEITH ELLISON

Attorney General of Minnesota

LIZ KRAMER*

Solicitor General

PETER J. FARRELL

MICHAEL GOODWIN

Assistant Attorneys General

445 Minnesota Street,

Suite 1100

St. Paul, MN 55101

(651) 757-1010

liz.kramer@ag.state.mn.us

*Counsel of Record

[Additional Counsel Listed On Signature Page]

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

TABLE OF AUTHORITIES .................................

ii

INTERESTS OF AMICI CURIAE .......................

1

SUMMARY OF THE ARGUMENT .....................

2

ARGUMENT ........................................................

3

I.

II.

The Power to Tax is a Core Attribute of

State Sovereignty ......................................

3

States Have Broad Discretion to Enact

and

Enforce

Reasonable

Taxation

Schemes Within the Boundaries of Due

Process and Without Violating the Takings Clause ................................................

5

A. This Court Has Affirmed the States’

Broad Authority to Tax and Confirmed

That Taxes Are Not Takings ................

6

B. State High Courts Have Affirmed

States’ Broad Authority to Tax and

Confirmed That Taxes Are Not Takings ......................................................

9

III.

Property Interests Are Defined by State

Law ............................................................ 13

IV.

Petitioner’s Rule Would Hinder States’

Ability to Address Abandoned and

Blighted Properties ................................... 18

V.

Petitioner’s Rule Would Result in Unintended Consequences................................. 26

CONCLUSION..................................................... 29

ii

TABLE OF AUTHORITIES

Page

CASES

A. Magnano Co. v. Hamilton, 292 U.S. 40 (1934) .........8

Alcorn v. Hamer, 38 Miss. 652 (1860) ........................11

Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522

(1959) .........................................................................7

Ariz. State Leg. v. Ariz. Indep. Redistricting

Comm’n, 576 U.S. 787 (2015) ....................................2

Arkansas v. Farm Credit Servs. of Central Ark.,

520 U.S. 821 (1997) ............................................... 3, 4

Automatic Art, LLC v. Maricopa Cnty., CV 081484-PHX-SRB, 2010 WL 11515708 (D. Ariz.

Mar. 18, 2010) ..........................................................12

Bd. of Regents of State Colls. v. Roth, 408 U.S.

564 (1972) ................................................................14

Bennis v. Michigan, 516 U.S. 442 (1996) ....................15

Bogie v. Town of Barnet, 270 A.2d 898 (Vt. 1970) .......13

Burtkin Assocs. v. Tipton, 845 P.2d 525 (Colo.

1993) .................................................................... 9, 11

Cedar Point Nursery v. Hassid, 141 S. Ct. 2063

(2021) .......................................................................13

City of Atlanta v. Stokes, 165 S.E. 270 (Ga. 1932) .......10

City of Auburn v. Mandarelli, 320 A.2d 22 (Me.

1974) .................................................................... 9, 12

City of Logansport v. Seybold, 59 Ind. 225 (1877) .......11

City of Pittsburgh v. Alco Parking Corp., 417 U.S.

369 (1974) ..................................................................8

iii

TABLE OF AUTHORITIES—Continued

Page

City of Seattle v. Algar, 210 P. 664 (Wash. 1922) .......10

City of Tulsa v. State, 278 P.3d 602 (Okla. 2012) .......10

Clute v. Turner, 106 P. 240 (Cal. 1909) .......................11

Coleman v. D.C., CV 13-1456 (EGS), 2016 WL

10721865 (D.D.C. June 11, 2016)............................12

Commw. v. Morrison, 9 Ky. 75 (1819) .........................10

Cont’l Res. v. Fair, 971 N.W.2d 313 (Neb. 2022),

petition for cert. filed, No. 22-160 ...................... 11, 12

Dane v. Jackson, 256 U.S. 589 (1921) ...........................9

Dep’t of Revenue v. ACF Indus., Inc., 510 U.S. 332

(1994) ..................................................................... 3, 7

Douglas v. Roper, 1200503, 2022 WL 2286417

(Ala. June 24, 2022) ................................................12

Edmonson v. Walker, 195 S.W. 168 (Tenn. 1917) .......10

Empress Casino Joliet Corp. v. Giannoulias, 896

N.E.2d 277 (Ill. 2008) ..............................................11

Farmers Nat’l Bank v. Commw. Dep’t of Revenue,

486 S.W.3d 872 (Ky. Ct. App. 2015) .........................11

Gilman v. City of Sheboygan, 67 U.S. 510 (1862).........8

Houck v. Little River Drainage Dist., 239 U.S.

254 (1915) ..................................................................8

In re Est. of Lewis, 614 S.E.2d 695 (W.Va. 2005) .......11

Jones v. Flowers, 547 U.S. 220 (2006) ................... 1, 8, 9

Kimball v. City of Grantsville City, 57 P. 1 (Utah

1899) ........................................................................11

iv

TABLE OF AUTHORITIES—Continued

Page

Koontz v. St. Johns River Water Mgmt. Dist., 570

U.S. 595 (2013) ..........................................................7

Lane v. Oregon, 74 U.S. 71 (1868) .................................4

Levin v. Com. Energy, Inc., 560 U.S. 413 (2010) ...........5

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

(1819) ................................................................. 1, 3, 4

Mobile Cnty. v. Kimball, 102 U.S. 691 (1880) ...............8

Mullane v. Cent. Hanover Bank & Tr. Co., 339

U.S. 306 (1950) ..........................................................8

Mullaney v. Wilbur, 421 U.S. 684 (1975) ....................15

Murr v. Wisconsin, 137 S. Ct. 1933 (2017) ..... 13, 14, 17

N. C. Dep’t of Revenue v. The Kimberley Rice

Kaestner 1992 Fam. Tr., 139 S. Ct. 2213 (2019) ........1

N. Laramie Land Co. v. Hoffman, 268 U.S. 276

(1925) .......................................................................17

N. Mo. R.R. Co. v. Maguire, 49 Mo. 490 (1872) ..... 10, 11

Nichols v. City of Bridgeport, 23 Conn. 189

(1854) .......................................................................11

Okla. Tax Comm’n v. Jefferson Lines, Inc., 514

U.S. 175 (1995) ..........................................................1

Pearson v. Dodd, 429 U.S. 396 (1977) ................... 14, 15

Pembroke Limestone Works v. Commonwealth,

134 S.E. 721 (Va. 1926) ...........................................10

Pendell v. Dep’t of Revenue, 847 P.2d 846 (Or.

1993) ........................................................................11

v

TABLE OF AUTHORITIES—Continued

Page

People ex rel. Griffin v. Mayor of Brooklyn, 4 N.Y.

419 (1851) ................................................................11

Phillips v. Wash. Legal Found., 524 U.S. 156

(1998) ................................................................. 14, 17

Providence Rubber Co. v. Goodyear, 76 U.S. 788

(1869) .......................................................................14

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74

(1980) ................................................................. 13, 14

Rafaeli, LLC v. Oakland Cnty., 952 N.W.2d 434

(Mich. 2020) ....................................................... 12, 13

Ritter v. Ross, 558 N.W.2d 909 (Wis. Ct. App.

1996) ........................................................................12

Rogers v. Tennessee, 532 U.S. 451 (2001) ....................14

Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503

(1981) .........................................................................4

St. Louis Cnty. v. Fed. Land Bank of St. Paul, 338

N.W.2d 741 (Minn. 1983) .................................. 26, 27

Stein v. City of Mobile, 24 Ala. 591 (1854) ...................9

Texaco, Inc. v. Short, 454 U.S. 516 (1982)..... 15-17, 26, 28

Thomas Tool Servs., Inc. v. Town of Croydon, 761

A.2d 439 (N.H. 2000) ...............................................13

United States v. Texas, 507 U.S. 529 (1993) ...............15

Washburn v. Gregory, 147 N.W. 706 (Minn. 1914) ......27

Webb’s Fabulous Pharmacies Inc. v. Beckwith,

449 U.S. 155 (1980) .................................................17

vi

TABLE OF AUTHORITIES—Continued

Page

Westling v. County of Mille Lacs, 581 N.W.2d 815

(Minn. 1998) ............................................................11

White v. Town of Wolfeboro, 551 A.2d 514 (N.H.

1988) ........................................................................13

Williams v. City of Nashville, 15 S.W. 364 (Tenn.

1891) ........................................................................11

Wisconsin v. J.C. Penney Co., 311 U.S. 435

(1940) ............................................................... 4, 5, 14

Zephier v. Agate, 957 N.W.2d 866 (Minn. 2021) .........15

CONSTITUTIONAL PROVISIONS

Minn. Const. art. XI § 10 ............................................28

U.S. Const. amend. XIV ............................................ 3, 8

STATUTES, RULES AND REGULATIONS

Ky. Rev. Stat. Ann. § 134.546, subd. 1 ..........................6

Minn. Stat. § 272.039..................................................27

Minn. Stat. § 272.04, subd. 1 ......................................27

Minn. Stat. § 273.165, subd. 1 ....................................27

Minn. Stat. § 281.17, subd. a ........................................6

Minn. Stat. § 281.18....................................................24

Minn. Stat. § 282.241, subd. 1 ......................................6

Minn. Stat. §§ 93.14–93.42 .........................................28

28 U.S.C. § 1341 ............................................................4

vii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

1 Jerome R. Hellerstein & Walter Hellerstein,

State Taxation (3d ed. 2022) ............................... 7, 18

Daniel Rogan, Tax Forfeiture in Hennepin County

(2023), https://perma.cc/7GTC-HNFH................ 19, 23

Frank S. Alexander, Tax Liens, Tax Sales, and

Due Process, 75 Ind. L. J. 747 (2000) ........................7

https://www.hennepin.us/residents/property/

real-estate-document-copies-and-research

(last visited April 3, 2023).......................................24

Itasca Cnty. Land Dep’t, PID/Property Descriptions 1 (2023), https://perma.cc/3BCJ-UBZT .........21

Itasca County, Itasca County 2023 Delinquent

Tax List, Scenic Range News F., Mar. 16,

2023 .........................................................................27

Jackie Smith, Treasurers: Counties Not “CherryPicking” Foreclosures for Profit, Times Herald

(Feb. 9, 2018, 1:06 P.M.), https://perma.cc/

9VKP-U2SN ...................................................... 22, 23

John Accordino and Gary T. Johnson, Addressing the Vacant and Abandoned Property Problem, 22 J. of Urb. Affs. 301 (2000) ...........................22

Ken Belson, Vacant Houses, Scourge of a BeatenDown Buffalo, N.Y. Times (Sept. 13, 2007),

https://perma.cc/XV5C-GMJ7 .................................22

Mining in Minnesota, Minn. Dep’t of Nat. Res.,

https://perma.cc/CWQ7-8ZYP (last visited

Mar. 17, 2023) ..........................................................27

viii

TABLE OF AUTHORITIES—Continued

Page

Minn. Dep’t of Rev., Mining Tax Guide (2022),

https://perma.cc/5Z43-2ATN ...................................27

Pac. Legal Found., Appendix: The Data, End

Home Equity Theft, https://perma.cc/UYP42F7Z (last visited Mar. 28, 2023) ............................18

Pac. Legal Found., End Home Equity Theft,

https://perma.cc/6FYV-9PK8 (last visited Mar.

28, 2023) ....................................................................6

Population, Office of the Minn. Sec’y of State,

https://perma.cc/ED8V-9B6Z (last visited Mar.

29, 2023) ..................................................................19

Saint Louis Cnty. Land & Mins. Dep’t, ParcelProject Descriptions (2023), https://perma.cc/

5UTW-KA66 ...................................................... 20, 21

Tax Forfeiture, Saint Louis Cnty. Minn., https://

perma.cc/76VE-CR9L (last visited Mar. 29,

2023) ........................................................................25

Tax-Forfeited Public Sales, Ramsey Cnty.,

https://perma.cc/WF5W-88GQ (last visited

Mar. 29, 2023) ..........................................................19

The Federalist No. 31 (Alexander Hamilton) ..............3

The Federalist No. 32 (Alexander Hamilton) ..............1

1

INTERESTS OF AMICI CURIAE

Amici are the States of Minnesota, New Jersey

and Oregon. The Amici States have an interest in defending the authority of state legislatures to devise

and implement tax systems, a sovereign power that

this Court has repeatedly recognized as “essential to

the very existence of government.” N. C. Dep’t of Revenue v. The Kimberley Rice Kaestner 1992 Fam. Tr., 139

S. Ct. 2213, 2219 (2019) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 428 (1819)). The founders,

after all, believed that the “right of taxation in the

[S]tates is sacred and inviolable,” an authority that the

States retain “in the most absolute and unqualified

sense.” McCulloch, 17 U.S. at 344 (quoting The Federalist No. 32 (Alexander Hamilton)). Collection and enforcement are essential aspects of the taxing power.

See Jones v. Flowers, 547 U.S. 220, 234 (2006). State

and local tax revenues fund “the usual and usually forgotten advantages conferred by the State’s maintenance of a civilized society.” Okla. Tax Comm’n v.

Jefferson Lines, Inc., 514 U.S. 175, 200 (1995). Equally

well-established is the province of elected state legislatures to define the parameters of constitutionally-protected property rights. The Amici States are

concerned that a reversal of the Eighth Circuit’s wellreasoned decision would erode these areas of State authority, depriving States of the flexibility needed to develop and implement tax schemes and to recognize

property interests. A host of unintended consequences

could result, rendering large swaths of statutory regimes vulnerable to a constitutional challenge and

2

state governments unable to meet the diverse and ongoing needs of their citizenry.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

In our federalist tradition, states possess broad

authority to define property rights and develop taxation systems that respond to the needs of their constituents. When developing property tax regimes, state

legislatures take into account many factors unique to

their State including demographic trends, the mix of

rural and urban land, the presence of natural resources (lakes, timber, minerals, oil), the availability of

capital, taxing traditions, the real estate market, the

presence of blight or abandoned properties, and the financial needs of the state government, among others.

By deferring to the policy judgments decisions of those

state lawmakers, federalism allows the States to develop the structure of their own sovereign governments and

allows local policies more sensitive to the diverse needs of a heterogenous society, permits

innovation and experimentation, enables

greater citizen ‘involvement in democratic

processes, and makes government ‘more responsive by putting the States in competition

for a mobile citizenry.

Ariz. State Leg. v. Ariz. Indep. Redistricting Comm’n,

576 U.S. 787, 817 (2015) (internal quotation marks and

citations omitted).

3

The main federal-constitutional limit on each

state’s sovereign power to tax is the Due Process

Clause of the Fourteenth Amendment. Here, Petitioner

concedes she received due process, Pet. Br. 2 n.1, but

attacks Minnesota’s taxing scheme nonetheless.

Adopting the constitutional rule that Petitioner proposes would not only infringe on core attributes of

state sovereignty, but would also inhibit the States’

ability to address abandoned property and related financial and public-safety issues. Petitioner’s proposed

rule also would have unintended consequences outside

the domain of residential property. The Amici States

ask this Court to affirm the Eighth Circuit.

---------------------------------♦---------------------------------

ARGUMENT

I.

The Power to Tax is a Core Attribute of

State Sovereignty.

The States’ power to tax is central to their sovereignty. See Arkansas v. Farm Credit Servs. of Central

Ark., 520 U.S. 821, 826 (1997); accord Dep’t of Revenue

v. ACF Indus., Inc., 510 U.S. 332, 345 (1994). As this

Court has long—and consistently—observed, the

States’ taxing power was “not abridged by the grant of

a similar power to the government of the Union.” Farm

Credit Servs., 520 U.S. at 826 (quoting McCulloch, 17

U.S. (4 Wheat.) at 425); see also The Federalist No. 31

(Alexander Hamilton). Instead, the taxing power was

“retained by the States . . . and it is to be concurrently

exercised by the two governments.” Farm Credit Servs.,

4

520 U.S. at 826 (quoting McCulloch, 17 U.S. (4 Wheat.)

at 425). Simply put: “The power to tax is basic to the

power of the State to exist.” Id.

The broad scope of the States’ taxing power extends to “property, business, and persons, within their

respective limits.” Lane v. Oregon, 74 U.S. 71, 77 (1868).

“The extent to which [the taxing power] shall be exercised, the subjects upon which it shall be exercised, and

the mode in which it shall be exercised, are all equally

within the discretion of the legislatures to which the

States commit the exercise of the power.” Id. States are

thus “free to pursue [their] own fiscal policies,” with

“the responsibility for devising just and productive

sources of revenue” left to “the wit” of state legislatures. Wisconsin v. J.C. Penney Co., 311 U.S. 435, 444–

45 (1940).

Given the centrality of the taxing power to sovereignty, Congress has recognized the States’ primacy

over their own tax systems, and it has sought to limit

the federal courts’ interference with state-tax systems.

In 1937, for example, Congress passed the Tax Injunction Act, which divested the federal district courts of

jurisdiction to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law

where a plain, speedy and efficient remedy may be had

in the courts of such State.” 28 U.S.C. § 1341. The animating purpose behind the Tax Injunction Act is “to

limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.” Rosewell v. LaSalle Nat’l Bank, 450 U.S.

503, 522 (1981).

5

The Court has also been sensitive to undue federal

interference with the States’ taxing power. Even in

cases beyond the scope of the Tax Injunction Act, the

Court has held that comity counsels against federal

court jurisdiction over state taxation disputes. See

Levin v. Com. Energy, Inc., 560 U.S. 413, 421–22 (2010).

And, more fundamentally, the Court has explained

that the nature of judicial review is “limited” when issues of state taxation come before the Court. J.C. Penney Co., 311 U.S. at 445. As one Justice put it: “Nothing

can be less helpful than for courts to go beyond the extremely limited restrictions that the Constitution

places upon the states and to inject themselves in a

merely negative way into the delicate processes of fiscal policy-making.” Id.

II.

States Have Broad Discretion to Enact and

Enforce Reasonable Taxation Schemes

Within the Boundaries of Due Process and

Without Violating the Takings Clause.

Part and parcel of the States’ sovereign authority

to tax is their ability to design reasonable schemes of

taxation, responding to the particular circumstances of

each state. This Court has stressed that when the

States exercise their taxing power, they are not engaging in takings. Instead, the States have broad authority to enact and enforce taxation schemes within the

boundaries of due process. State supreme courts have

recognized these same principles.

6

A ruling for Petitioner rule would significantly circumscribe the States’ ability to make independent

policy choices. For example, Petitioner identifies Kentucky as one of the States that ostensibly protects

home equity in tax foreclosures.1 But in many ways,

Kentucky’s tax-foreclosure regime is less generous

than Minnesota’s. In one common type of tax foreclosure, Kentucky has a presumptive one-year tolling period before the tax lien can be enforced. See Ky. Rev.

Stat. Ann. § 134.546, subd. 1. That time period is two

years shorter than Minnesota’s corresponding redemption period. See Minn. Stat. § 281.17, subd. a. Nor does

Kentucky allow delinquent taxpayers to apply to repurchase their property after title has vested in the

State. But cf. Minn. Stat. § 282.241, subd. 1. For Petitioner, Kentucky’s scheme passes constitutional muster simply because of how it treats any “surplus” from

a tax sale. But in reality, Minnesota and Kentucky

have just made different policy choices about how

property owners can preserve their property interests.

The Constitution does not mandate Kentucky’s approach—nor does it prohibit Minnesota’s.

A. This Court Has Affirmed the States’

Broad Authority to Tax and Confirmed

That Taxes Are Not Takings.

The States’ concurrent taxing power gives them

broad authority to design and enforce tax schemes. The

1

Pac. Legal Found., End Home Equity

https://perma.cc/6FYV-9PK8 (last visited Mar. 28, 2023).

Theft,

7

local concerns reflected in state tax policies have been

a feature of the tax system since colonial times. See 1

Jerome R. Hellerstein & Walter Hellerstein, State Taxation § 1.01 (3d ed. 2022) (tracing historical development of state and local tax systems, particularly

property tax). The States’ taxing power is not, of

course, boundless. The States may not interfere with

“the prerogatives of the National Government or violat[e] the guaranties of the Federal Constitution.” Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 526

(1959). But as long as the States are “dealing with

their proper domestic concerns,” they “have a very

wide discretion in the laying of their taxes.” Id.

That discretion is at its zenith when it comes to

property taxes. Property taxes are a pillar of state and

local tax policy. See Dep’t of Rev., 510 U.S. at 344. These

taxes are a major source of revenue for local governments. See Frank S. Alexander, Tax Liens, Tax Sales,

and Due Process, 75 Ind. L. J. 747, 752 (2000). And

property taxes remain uniquely within the control of

the States at the level of policy, and local governments

at the level of implementation. Id. at 754–55. States,

counties, and municipalities are thus in the best position to design property-tax systems that are sensitive

to local conditions.

The States do not engage in takings when they enforce those reasonable systems of property taxation. “It

is beyond dispute that taxes . . . are not takings.”

Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S.

595, 615 (2013) (cleaned up). As the Court has long explained, “taxation for a public purpose, however great,

8

is [not] the taking of private property for public use, in

the sense of the Constitution.” Mobile Cnty. v. Kimball,

102 U.S. 691, 703 (1880); accord, e.g., A. Magnano Co.

v. Hamilton, 292 U.S. 40, 44 (1934); Gilman v. City of

Sheboygan, 67 U.S. 510, 510 (1862). And the Court has

cautioned that “the power of taxation should not be

confused with the power of eminent domain.” Houck v.

Little River Drainage Dist., 239 U.S. 254, 264 (1915).

Instead, the principal check on property tax

schemes is the Due Process Clause of the Fourteenth

Amendment. In “rare and special instances,” the Due

Process Clause may invalidate a taxing statute wholesale. See City of Pittsburgh v. Alco Parking Corp., 417

U.S. 369, 374–75 (1974) (internal quotation marks and

citation omitted). For a taxing statute to be invalid for

due process reasons, the statute must be “so arbitrary

as to compel the conclusion that [the statute] does not

involve the exertion of the taxing power, but constitutes, in substance and effect, the direct exertion of a

different and forbidden power, as, for example, the confiscation of property.” Id. (internal citation omitted).

In the same vein, due process protects the rights

of individual homeowners who fail to pay their property taxes. Due process requires the government to

provide an individual property owner with notice and

an opportunity to be heard “[b]efore a State may take

property and sell it for unpaid taxes.” Jones v. Flowers,

547 U.S. 220, 223 (2006). That notice must be “reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action.” Id. at

226 (quoting Mullane v. Cent. Hanover Bank & Tr. Co.,

9

339 U.S. 306, 314 (1950)). If notice is constitutionally

adequate, then “the government may hold citizens accountable for tax delinquency by taking their property.” Id. at 234.

Absent an arbitrary taxing statute or a failure to

afford individual homeowners due process, the citizen’s security against taxation is “found in the structure of our government itself.” See Dane v. Jackson, 256

U.S. 589, 599 (1921) (internal quotation marks and citation omitted).

B. State High Courts Have Affirmed

States’ Broad Authority to Tax and

Confirmed That Taxes Are Not Takings.

State courts too have affirmed that the authority

to tax is a core aspect of state sovereignty and generally is a function of state legislatures. Maine’s high

court put it succinctly: “Taxation is recognized as a sovereign right. As such it is an attribute of sovereignty. It

is essential to the very existence of government.” City

of Auburn v. Mandarelli, 320 A.2d 22, 27 (Me. 1974)

(noting also that any adjustment to taxing statutes

“must be made, if at all, by the Legislature, not the

courts”); accord, e.g., Stein v. City of Mobile, 24 Ala. 591,

594 (1854) (“[T]he power of taxation is inherent in

every sovereignty, and extends not only to the people

and property of a State, but it may be exercised upon

every object brought within its jurisdiction.”); Burtkin

Assocs. v. Tipton, 845 P.2d 525, 529 (Colo. 1993) (“In our

view, the tax liens did not violate the Taking Clauses,

10

but were a valid exercise of the sovereign power to assess and collect taxes.”); City of Atlanta v. Stokes, 165

S.E. 270, 271 (Ga. 1932) (“In the field of direct taxation,

the power of the sovereign state is supreme.”); Commw.

v. Morrison, 9 Ky. 75, 89 (1819) (“[T]he direct taxing

power is concurrent and in its exercise the states are

sovereign.”); N. Mo. R.R. Co. v. Maguire, 49 Mo. 490, 498

(1872) (“Nor can there be any doubt of the power of the

State, by reason of its sovereignty over the whole subject of taxation.”); City of Tulsa v. State, 278 P.3d 602,

609 (Okla. 2012) (“The power to collect taxes, whether

collected by the state or its subdivisions is inherent

and is a necessary attribute of sovereignty.”); Edmonson v. Walker, 195 S.W. 168, 171 (Tenn. 1917) (“There

can be no doubt as to the right to tax being a sovereign

power . . . inherent in the state.”); Pembroke Limestone

Works v. Commonwealth, 134 S.E. 721, 722 (Va. 1926)

(“Taxation is a legislative and not a judicial function.

It rests in the sovereign power of the State and is inherent in such sovereignty.”); City of Seattle v. Algar,

210 P. 664, 666 (Wash. 1922) (noting the state has a

“sovereign right of taxation”).

As a logical extension of the principles that taxation is a core attribute of sovereignty, and that any

complaints about its fairness should be addressed by

state legislatures, the high courts of at least fifteen

states have concluded that taxation schemes can never

be a constitutional taking. These cases span over 150

years of jurisprudence and every region of the nation.

In 1891, for example, the Tennessee Supreme Court rejected takings claims under both the state and federal

11

constitution because “[t]axation, however great, for a

public purpose, is not a taking of private property for

public use within the meaning of a constitutional provision prohibiting such taking.” Williams v. City of

Nashville, 15 S.W. 364, 365 (Tenn. 1891) (internal citation omitted); see also Clute v. Turner, 106 P. 240, 243

(Cal. 1909); Burtkin Assocs., 845 P.2d at 529; Nichols v.

City of Bridgeport, 23 Conn. 189, 189 (1854); Empress

Casino Joliet Corp. v. Giannoulias, 896 N.E.2d 277, 291

(Ill. 2008); City of Logansport v. Seybold, 59 Ind. 225,

228 (1877); Farmers Nat’l Bank v. Commw. Dep’t of

Revenue, 486 S.W.3d 872, 883 (Ky. Ct. App. 2015); Alcorn v. Hamer, 38 Miss. 652, 679 (1860); Westling v.

County of Mille Lacs, 581 N.W.2d 815, 822–24 (Minn.

1998); N. Mo. R.R. Co., 49 Mo. at 501–02; People ex rel.

Griffin v. Mayor of Brooklyn, 4 N.Y. 419, 420 (1851);

Pendell v. Dep’t of Revenue, 847 P.2d 846, 849–50 (Or.

1993); In re Est. of Lewis, 614 S.E.2d 695, 704 (W.Va.

2005); Kimball v. City of Grantsville City, 57 P. 1, 3

(Utah 1899). Just last year, the Nebraska Supreme

Court agreed: “If taxes, as the U.S. Supreme Court has

held, are not takings, we do not see how efforts to collect that tax, whether through the sale of a lien on the

property or sale of the property itself, could be characterized as a taking.” Cont’l Res. v. Fair, 971 N.W.2d 313,

323 (Neb. 2022), petition for cert. filed, No. 22-160.

Because each state has authority to devise a taxation scheme that best fits the unique needs of its state,

it is neither unexpected nor problematic that state

statutes vary with respect to the process of tax forfeiture. As many state courts have held, any real or

12

perceived inequities in those systems should, and indeed may, be addressed with their state legislatures.

Similarly, because property rights are defined by

state law, it is neither unexpected nor problematic that

states reached different results on the precise question

of “surplus equity” presented in this case. Compare Automatic Art, LLC v. Maricopa Cnty., CV 08-1484-PHXSRB, 2010 WL 11515708, at *4 (D. Ariz. Mar. 18, 2010)

(finding no basis in Arizona law for “the recovery of any

funds by a previous owner after a tax sale”); Cont’l Res.,

971 N.W.2d at 323 (finding Nebraska common law did

not recognize any right to receive any compensation after a tax forfeiture); Ritter v. Ross, 558 N.W.2d 909,

485–86 (Wis. Ct. App. 1996) (finding state law silent

regarding excess proceeds from tax sale, so no violation

of federal takings clause); City of Auburn, 320 A.2d at

32 (“No duty arose in the municipality to restore to the

defendant the windfall which the city reaped from the

taxpayer’s and the defendant’s negligent noncompliance with the statutory prerequisites for the avoidance

of a forfeiture.”), with Douglas v. Roper, 1200503, 2022

WL 2286417, at *11 (Ala. June 24, 2022) (“This state

has long recognized a property owner’s right to the excess funds generated from a tax sale of his or her property.”); Coleman v. D.C., CV 13-1456 (EGS), 2016 WL

10721865, at *2–3 (D.D.C. June 11, 2016) (finding

plaintiffs had sufficiently pleaded takings claim for

surplus equity because D.C.’s highest court had arguably recognized property interest in home equity); Rafaeli, LLC v. Oakland Cnty., 952 N.W.2d 434, 473–74

(Mich. 2020) (finding Michigan common law recognized

13

a vested right in surplus); Thomas Tool Servs., Inc. v.

Town of Croydon, 761 A.2d 439, 441 (N.H. 2000)

(same).

The few state courts that have recognized valid

takings claims as a result of a tax forfeiture have done

so under their state constitutions. Rafaeli, 952 N.W.2d

at 447–50, 479; White v. Town of Wolfeboro, 551 A.2d

514, 517 (N.H. 1988); Bogie v. Town of Barnet, 270 A.2d

898, 899–900 (Vt. 1970). These cases do not support an

argument that the United States Constitution dictates

to States the manner in which they may or may not

enforce their taxation schemes. Instead, these cases

demonstrate the variance among state constitutions.

III. Property Interests Are Defined by State

Law.

The paramount role of the States in defining property interests is a central feature of this Court’s Takings-Clause jurisprudence. The Court has long

recognized that States possess “residual authority that

enables [them] to define ‘property’ in the first instance.” PruneYard Shopping Ctr. v. Robins, 447 U.S.

74, 84 (1980); accord Murr v. Wisconsin, 137 S. Ct.

1933, 1944 (2017) (recognizing that “property interests

have their foundations in state law”). Just two years

ago, the Court stated flatly that property interests protected by the Constitution “are creatures of state law.”

Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2076

(2021). Part of this inquiry is “whether and to what degree the State’s law has accorded legal recognition and

14

protection to the particular interest in land with respect to which the takings claimant alleges a diminution in (or elimination of ) value.” Murr, 137 S. Ct. at

1946 (internal citation omitted); see also Pearson v.

Dodd, 429 U.S. 396, 397 (1977) (looking to state law to

determine when title vested in the state following a

property tax forfeiture). This approach makes sense in

light of the truism that States are sovereigns that possess all of the hallmarks of sovereignty, including the

authority to define property interests as well as to develop systems of taxation and the means of collecting

those taxes. E.g., PruneYard, 447 U.S. at 84; J.C. Penney

Co., 311 U.S. at 445.

State authority to define property interests necessarily includes the authority to refine those definitions

over time and is part of the state law “rules or understandings” that form property interests. Bd. of Regents

of State Colls. v. Roth, 408 U.S. 564, 577 (1972); see also

Rogers v. Tennessee, 532 U.S. 451, 461 (2001) (noting

that the common law “presupposes a measure of evolution [ . . . ]”). Although States “may not sidestep the

Takings Clause by disavowing traditional property interests long recognized under state law,” Phillips v.

Wash. Legal Found., 524 U.S. 156, 167 (1998), the

Court has recognized the authority of state legislatures to regulate—and in some circumstances abrogate—property interests created by the common law,

see Providence Rubber Co. v. Goodyear, 76 U.S. 788,

791–92 (1869) (stating that common-law rule was abrogated by state statute and could not be recognized in

15

the federal courts any more than in the state courts.);

United States v. Texas, 507 U.S. 529, 534 (1993).2

Indeed, this Court has recognized that States have

broad authority to abrogate property rights when

property owners do not comply with reasonable conditions of ownership—including the payment of taxes.

See Texaco, Inc. v. Short, 454 U.S. 516, 529 (1982) (concluding that Indiana had power to extinguish property

rights in severed mineral interests for failure to pay

property taxes); see also Pearson, 429 U.S. at 397–98

(dismissing appeal for lack of federal question because,

under state law, property owner had no constitutionally-protected interest when absolute title had vested

in state for nonpayment of taxes four years earlier).

Even more recently, this Court held that the “government may not be required to compensate an owner for

property which it has already lawfully acquired under

the exercise of governmental authority other than the

power of eminent domain.” Bennis v. Michigan, 516

U.S. 442, 452 (1996) (holding that civil forfeiture of car

was not an unconstitutional taking).

The Court’s decision in Texaco is instructive. In

Texaco, the Court considered the constitutionality of

2

Such authority to abrogate common-law property interests

is well-established under Minnesota law, which is binding on the

Court with respect to the state-law issues at dispute in this matter. See Zephier v. Agate, 957 N.W.2d 866, 874–75 (Minn. 2021)

(recognizing that legislature may abrogate common-law property

interests); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)

(recognizing that “state courts are ultimate expositors of state

law” and that the Court is “bound by their constructions except in

extreme circumstances”).

16

Indiana’s mineral-forfeiture law. See 454 U.S. at 518–

20. Under that law, a mineral owner’s interest in severed mineral rights would lapse—and revert to the

owner of the surface estate—if the mineral owner

failed to take any of three actions: (1) pay taxes; (2)

produce minerals; or (3) file a statement of claim with

the local recorder of deeds within a specified period. Id.

Several owners of forfeited mineral interests challenged the statute, alleging that it violated the Due

Process, Takings, and Contracts Clauses of the United

States Constitution. Id. at 522–23.

The Court rejected the challenges across the

board. Before addressing the constitutional claims, the

Court addressed the State’s general power to extinguish property rights. Id. at 525–30. Although severed

mineral interests were, under Indiana law, “entitled to

the same protection as fee simple titles,” the Court had

“no doubt that, just as a State may create a property

interest that is entitled to constitutional protection,

the State has the power to condition the permanent retention of that property right on the performance of

reasonable conditions that indicate a present intention

to retain that interest.” Id. at 526 (internal quotation

marks and citation omitted).

Nor could the property owners claim ignorance to

avoid the consequences of unpaid taxes. Under longsettled principles of property law, “persons owning

property within a state are charged with knowledge of

relevant statutory provisions affecting the control or

disposition of such property.” Id. at 532. The Court

stressed that this principle applies with particular

17

force “to those statutes relating to the taxation or condemnation of land,” which “are universally in force and

are general in their application, facts of which the land

owner must take into account in providing for the management of the property.” Id. n.26 (quoting N. Laramie

Land Co. v. Hoffman, 268 U.S. 276, 283 (1925)).

Texaco then proceeded to reject, as relevant here,

the takings claim. The Court had “never required the

State to compensate the owner for the consequences of

his own neglect.” Id. at 530. Because the Texaco owners’ property interests were forfeited due to their own

neglect, the Court found “no taking that requires compensation.” Id.

To the extent that Minnesota ever recognized a

common-law property interest in “surplus equity,” the

Minnesota legislature abrogated that right in 1935

when it passed the statute challenged here. There can

be no “reasonable expectations about property ownership” that would lead a property owner to expect that

they would retain a property right validly abrogated

almost 90 years ago. Murr, 137 S. Ct. at 1945. Moreover, unlike the state statute at issue in Phillips, which

siphoned for the government all interest proceeds on

private funds, Minnesota’s property tax statute is more

like the statute in Texaco, which merely establishes the

conditions under which a property owner may retain

that interest. 524 U.S. at 162, 171; cf. Webb’s Fabulous

Pharmacies Inc. v. Beckwith, 449 U.S. 155 (1980) (finding unconstitutional a state statute that “deemed” a

well-established property right out of existence).

18

IV. Petitioner’s Rule Would Hinder States’

Ability to Address Abandoned and

Blighted Properties.

Property taxes are a vital aspect of local taxation,

accounting for 72 percent of local-government revenues. 1 Hellerstein & Hellerstein, State Taxation

§ 1.02. The Court should not fashion a new constitutional rule on the basis of sympathetic facts and an underdeveloped record, much less a rule that would

compromise States’ abilities to establish and administer vital property-tax systems. Such systems not only

fund a host of local-government programs but also allow States to regulate nuisance properties and return

those properties to productive use. Although no federal

or state entity collects and compiles data on tax forfeitures in all jurisdictions,3 information from a sampling

of Minnesota counties paints a more accurate picture

of the typical tax forfeiture than Petitioner’s situation.

These examples illustrate the economics of the forfeiture process for the government and highlight the need

3

Petitioner holds out an article by her counsel as a complete

national study of tax-forfeited property. Pet. Br. 7. The appendix

to that article makes clear the article surveyed only the 13

States that it attacks as allowing “equity theft.” Even within

those States, the authors acknowledge their “limited [ ] ability

to create a comprehensive dataset,” and that the data they collected “cannot be extrapolated to the whole state.” Pac. Legal

Found., Appendix: The Data, End Home Equity Theft,

https://perma.cc/UYP4-2F7Z (last visited Mar. 28, 2023). In Minnesota, for example, it appears only 12 of 87 counties were analyzed. Id. Further, the article relied on a “multiplier” to estimate

the amount a homeowner needed to pay to redeem the property,

and algorithms to estimate home values. Id.

19

to incentivize private care and maintenance of property.

Hennepin County is the most populous of Minnesota’s 87 counties.4 There, an average of just 77 parcels

forfeit each year out of 440,516 total parcels.5 Of those

forfeited parcels, roughly one-third are vacant land,

with no commercial or residential structure. In Ramsey County, Minnesota’s second most-populous county,

the last two auctions of tax-forfeited property show the

vast majority are vacant land (7 of 10 properties auctioned in 2020, and 11 of 15 auctioned in 2019).6

Although structures are not common on tax-forfeited property, when structures are present they are

often in severe disrepair. A residential example is the

house at 420 North 22nd Avenue West in Duluth, Minnesota. (Duluth is Minnesota’s fifth most-populous city

and is located on the shore of Lake Superior.) The following photo was taken at that property in December

2018.

4

Population, Office of the Minn. Sec’y of State,

https://perma.cc/ED8V-9B6Z (last visited Mar. 29, 2023).

5

Daniel Rogan, Tax Forfeiture in Hennepin County 1–2

(2023), https://perma.cc/7GTC-HNFH.

6

Tax-Forfeited Public Sales, Ramsey Cnty., https://perma.

cc/WF5W-88GQ (last visited Mar. 29, 2023).

20

This home is in a dense middle-class neighborhood. But the forfeiting property owners had allowed

the home to develop large holes in its soffit and fascia,

as well as pigeon and rodent infestations.7 The home

had been condemned by the city for code violations,

and the police and fire department had been called to

the property multiple times. It was full of abandoned

personal property and became a dumping ground for

appliances and mattresses. The forfeiting owners owed

7

Saint Louis Cnty. Land & Mins. Dep’t, Parcel-Project Descriptions 1, 6–7 (2023), https://perma.cc/5UTW-KA66.

21

$11,289 in property taxes at the time of forfeiture.

Saint Louis County spent $24,956 to clean out and demolish the structure and then sold the land for $4,700,

its estimated market value.8

A commercial example comes from an abandoned

building in a small town on Minnesota’s Iron Range.

14 North Broadway Street in Gilbert, Minnesota, is a

main street building that once housed the local newspaper. No doubt due to the decline of both the mining

industry and local newspapers, the building was abandoned. The roof stood open to the elements for years,

leading to water damage, mold and mildew growth,

and heaving of the foundation slab. The building contained an industrial-size printing press, office equipment, and many other personal effects that had to be

removed. The forfeiting property owner owed $7,742 in

taxes at the time of forfeiture, and Saint Louis County

spent over $24,000 to clean out and demolish the property before selling the land for $2,475.9

These are not isolated examples. Local officials

charged with managing tax-forfeiture programs speak

of buildings packed full of personal property after being abandoned by people with hoarding disorder and

condemned by cities, homes of deceased individuals

whose beneficiaries will not take responsibility for the

8

Id. at 1.

Id. at 1, 16–17. Clean out of commercial property can be

many times more expensive; an abandoned gas station in the City

of Calumet has cost the State of Minnesota over a million dollars

to clean up. See Itasca Cnty. Land Dep’t, PID/Property Descriptions 1 (2023), https://perma.cc/3BCJ-UBZT.

9

22

property, and properties with repairs so expensive that

it is more efficient for owners to simply abandon the

building.10

Abandoned properties are not merely an eyesore.

They foment crime, risk neighbors’ health, and reduce

nearby property value, all circumstances that contribute to disinvestment in the community. See John

Accordino and Gary T. Johnson, Addressing the Vacant

and Abandoned Property Problem, 22 J. of Urb. Affs.

301, 302–03 (2000). One mayor reported that 41% of

fires in his city were in abandoned buildings and

90% of arson happened in abandoned homes.11 Those

abandoned buildings were also being used as drug

dens or places to stash guns and other contraband. Id.

Abandoned properties lower the economic health and

welfare of entire communities. The true cost of abandonment to a community cannot be measured merely

by the equity differential on a single property.

Local taxing authorities do not receive any financial windfall from the work they do rehabilitating

properties and neighborhoods. Managing abandoned

properties is expensive, necessitating costs for snow removal, lawn care, debris removal, inspections, maintenance, and policing for every property on which the

State holds title. All the while, no taxes are being recovered. Instead, just as Hennepin County reports a

10

See generally Jackie Smith, Treasurers: Counties Not

“Cherry-Picking” Foreclosures for Profit, Times Herald (Feb. 9,

2018, 1:06 P.M.), https://perma.cc/9VKP-U2SN.

11

Ken Belson, Vacant Houses, Scourge of a Beaten-Down Buffalo, N.Y. Times (Sept. 13, 2007), https://perma.cc/XV5C-GMJ7.

23

net loss, so do other Minnesota counties.12 And where

the taxes owed are greater than the value of the property, Minnesota’s tax-foreclosure statute operates to

wipe out the property owners’ tax debt, with no further

recourse for the government.

It is the government’s obligation to be the property

owner of last resort. The government has a duty to accept ramshackle buildings and abandoned properties

and to turn those properties back to productive use,

thereby stemming any broader effects on the community. Yet a finding that the government must pay property owners who stop paying their taxes and elect not

to sell their properties themselves would dramatically

increase the burden on communities of all sizes.

One reason the government’s burden would increase under Petitioner’s proposed rule is the unaddressed issue of mortgages. Petitioner’s brief

appears to claim the difference between the sale price

of her condo at auction and her obligation to the county

as a taking.13 Pet. Br. 3, 8, 24. But most homeowners

12

See Rogan, supra note 5, at 3 (noting that the “cost of uncollected taxes along with the cost of administering Minnesota’s

tax forfeiture laws exceeds the revenues associated with tax forfeited parcels”); see also Smith, supra note 10 (reporting on foreclosures in two counties in Michigan and noting both counties also

experience a net loss in revenue). Every Minnesota county that

the Minnesota Attorney General contacted confirmed that they

also receive less revenue from tax-forfeited property than they

spend administering the program and rehabilitating abandoned

properties.

13

A search of the public property records reflects that in

2015, when the redemption period ended, Petitioner’s former

property was subject to a $48,750 mortgage (recorded in 2003)

24

also have mortgages, with banks having recorded interests in the property. Petitioner offers the Court no

suggestion how to address that debt.14 Is it a constitutional taking anytime the sale price exceeds the tax obligation, even if the remaining debt on a mortgage

would wipe out that faux surplus? Such a rule would

encourage property owners who cannot afford their

mortgages to use tax forfeiture as a way to wipe out

their mortgage debt while still obtaining a government

check based on the value of their property once it is

sold. Those incentives are unfair to lenders as well as

government entities.

The upheaval in the housing market would be

even more drastic under the proposal of the United

States, which argues that a constitutional taking happens at the moment a State takes “absolute title,” before the subject property is even sold. Br. of Amicus

Curiae United States at 14. That rule, which also disregards the existence of any mortgages, would incentivize any owner whose property has market value and

who wants to increase their liquidity to simply stop

paying taxes, forfeit their property to the government,

and demand a check immediately at the close of the

redemption period. At that point, the proposed rule

and liens of at least $11,660 for unpaid condominium dues (recorded in 2014). The public property records are available through

a record search here: https://www.hennepin.us/residents/property/

real-estate-document-copies-and-research (last visited April 3,

2023). With the sale price of $40,000, it is far from certain Petitioner had any true equity in the property in 2015.

14

All private liens are extinguished when property forfeits to

the State in Minnesota. Minn. Stat. § 281.18.

25

would obligate the local government to pay what could

be hundreds of thousands of dollars, after the government was deprived of years of property taxes and before it even receives any income from selling the

forfeited property.15 The impact would be even more absurd when considering the vast quantities of vacant

land forfeited to the States.16 In many instances, the

States choose to turn forfeited land into recreational

areas or nature preserves,17 but the United States’ rule

would obligate a State to pay the forfeiting owner for

the market value of the property even in instances

where it will never be sold or generate any income. The

States are not made of money; such a system is unworkable.

In addition to creating these perverse incentives

that would destabilize the real estate market, Petitioner’s rule would be expensive to administer and lead

to increased litigation. Local governments would be required to introduce complicated new tracking systems,

so that every time a lawn is mowed or sidewalk

15

This hypothetical would also lead to efforts by lenders to

recover their losses by suing the forfeiting owners in court, burdening a second branch of state government.

16

Minnesota’s county with the largest acreage, Saint Louis

County, currently “manages just under 900,000 acres of tax forfeit

rural land and 13,000 urban parcels.” Tax Forfeiture, Saint Louis

Cnty. Minn., https://perma.cc/76VE-CR9L (last visited Mar. 29,

2023).

17

For example, Saint Louis County classifies some land as

conservation parcels at the time of forfeiture, and those are retained for resource management and made available to the public

for hunting, fishing, and camping. Id.

26

shoveled, that cost could eventually show up on the

government’s side of the ledger. There would be a new

round of disputes about the true market value of the

property forfeited, and whether the government is

marketing its auctions sufficiently, or setting appropriate bid minimums, or selling when the real estate market is robust enough.

V.

Petitioner’s Rule Would Result in Unintended Consequences.

The Court should also reject Petitioner’s theory

because it may transform forfeiture of other types of

property interests into takings. As noted above, the

core of Petitioner’s theory appears to be that the government engages in a taking any time it acquires absolute title to property that exceeds the value of a tax

debt. See Pet. Br. 23–24. The United States expressly

adopts this view. See Br. of Amicus Curiae United

States at 13–14, 23–24. If the Court endorses this theory, its decision will sweep in other types of property

interests that are subject to taxation—and potential

forfeiture—for nonpayment.

Take severed mineral interests, which were the focus of Texaco. In Minnesota and elsewhere, a severed

mineral interest is “a type of estate in real property—

the owner of the estate owns an interest in the minerals produced from the property but does not own the

surface of the property.” St. Louis Cnty. v. Fed. Land

Bank of St. Paul, 338 N.W.2d 741, 742 (Minn. 1983).

Severed mineral interests “exist in much of Minnesota

27

and are especially common in northeastern Minnesota.” Id. Indeed, northern Minnesota contains some of

the largest iron-ore, taconite and, copper-nickel deposits in the world, as well as deposits of manganese and

titanium. See Mining in Minnesota, Minn. Dep’t of Nat.

Res., https://perma.cc/CWQ7-8ZYP (last visited Mar.

17, 2023).

Severed mineral interests “do[ ] not forfeit if the

overlying surface interest forfeits for nonpayment of

taxes due on the surface interest.” Minn. Stat.

§ 272.039 (citing Washburn v. Gregory, 147 N.W. 706

(Minn. 1914)). Instead, severed mineral interests must

be separately taxed and assessed. Id. But those interests are notoriously difficult to value. Id. So, Minnesota

has adopted a flat, per-acre tax on such interests. See

Minn. Stat. § 272.04, subd. 1; Minn. Stat. § 273.165,

subd. 1. If an owner fails to pay the tax, then the interest is subject to forfeiture, with absolute title for the

interest vesting in the State at the end of the redemption period. See Minn. Stat. § 272.04, subd. 1 (“All laws

for the enforcement of taxes on real estate apply to

such interest.”); see also Minn. Dep’t of Rev., Mining

Tax Guide 32–33 (2022), https://perma.cc/5Z43-2ATN

(explaining that penalty for not paying the tax is forfeiture); Itasca County, Itasca County 2023 Delinquent

Tax List, Scenic Range News F., Mar. 16, 2023, at 17–

18 (listing severed mineral interests on delinquent tax

list).

Under Petitioner’s theory, the government would

be on the hook for the fair market value of the forfeited

mineral interest, less the tax debt. That would be true

28

even though Minnesota’s Constitution prohibits the

State from selling severed mineral interests, such that

no “surplus” from a sale would ever be generated.18 See

Minn. Const. art. XI § 10 (“The state shall reserve all

mineral and water power rights in lands transferred

by the state.”). Nor would the value of any forfeited interests be ascertainable absent costly, expert-intensive

litigation.

To be sure, the Court’s decision in Texaco upheld

Indiana’s mineral-forfeiture scheme. See 454 U.S. at

518; Point III, supra at 11–12. But a decision in favor

of Petitioner would cast the viability of Texaco into

doubt and open new fronts in taxes-as-takings litigation. The Court should avoid that result and reinforce

the States’ power to enact reasonable taxation schemes

within the reliable boundaries of due process.

---------------------------------♦---------------------------------

18

Minnesota is permitted to lease mineral interests that it

owns. See Minn. Stat. §§ 93.14–93.42. But it cannot sell them.

Minn. Const. art. XI § 10.

29

CONCLUSION

In order to preserve the States’ sovereign authority to tax and to define property rights, the decision of

the Eighth Circuit should be affirmed.

Respectfully submitted,

KEITH ELLISON

Attorney General of Minnesota

LIZ KRAMER*

Solicitor General

PETER J. FARRELL

MICHAEL GOODWIN

Assistant Attorneys General

445 Minnesota Street, Suite 1100

St. Paul, MN 55101

(651) 757-1010

liz.kramer@ag.state.mn.us

*Counsel of Record

April 4, 2023

Additional Amici States

ELLEN F. ROSENBLUM

Attorney General

of Oregon

MATTHEW J. PLATKIN

Attorney General

of New Jersey