Opposition Brief — Novato Fire Protection District v. United States

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No. 99-1209

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In the Supreme Court of the United States

NOVATO FIRE PROTECTION DISTRICT, PETITIONER

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TOTHE UNITED STATES COURT OF APPEALS

FOR THE NINTH CiRCUTT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID-W. OGDEN

Acting Assistant Attorney

General

MARK B. STERN

PETER J. SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a local fire protection district, which has an

obligation under state law to provide services to all

entities within its borders, may, to avoid providing

services to a tax-exempt federal property, redraw its

borders to exclude the federal property and impose on

the federal government a fee for fire protection services

in “an amount equivalent to the revenue the District

would receive were the [federal property] on [the] tax

rolls.” Pet. App. 6a.

(1)

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Carpenter v. Shaw, 280 U.S. 363 (1930) ceccccccccccccocoeeeee-.

City of Cincinnati v. United States, 39 Fed. Cl.

271 (1997), aff'd, 153 F.3d 1375 (Fed. Cir. 1998) ..........

Davis v. Michigan Dep't of the Treasury, 489 U.S.

eae oe Ee

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316

ITT Gisstisdeistebssaisdnsenesictnsoetsinistmietsinenlaesoabnntisndeinteshansssissinsanaseens

Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976) .....

Printz v. United States, 521 U.S. 898 (1997) -.eccc...0..-...

United States v. City of Columbia, 914 F.2d 151

aI TITTY ss sacesalaiieldnssininbithcieseisasonsiorinendsomananesein

United States v. City of Detroit, 355 U.S. 466

NII Seis taiNisdkehonipsiictncsiptitetnenoitekansabestiNbenanesnbniitnensensan

United States v. City of Huntington, 999 F.2d 71

I III saiaeshikscksiletichemiasscasneicseanictansesitsnniehchao

United States v. County of Allegheny, 322 U.S. 174

UTNE SidibAnbdihisrinchasdibcnsbiiiineichaihecolansakaiicspsshbbubedninldnandainsionien

United States v. New Mexico, 455 U.S. 720

IIIT Ucspadehsenetsaisniiisbibdinhenclnsssbhisisieslnsisinpinnnisandaapnenuneainanasein

ES Sa SE Se a ee

Constitution and statutes:

U.S. Const. Art. VI, Cl. 2 (Supremacy Clause) ...............

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POPC OOOO OSODODOOOSOOOOOOOOOOODOOOOOOOO OOOO SOS OOOOOSOOOOOOS OOOO ES OOS OOCCCCSCCECCS

POP OOOO OOOOH SOOO OOOO OO OO OOCOOOO OS OOOOODOSOSOOOOSEOOOOOOOSOS OOOO OOO OSOCOSSOOC CESS

Statutes—Continued: Page

GF Re, UND D sinssteseissncesherstesopnrcesiadeediiticsanipaeahsidiniasvidnemiiaiaiids 13

Sp Sass RI sszinicenceiste sabbaieniaiiteetaiateeseetniuiestileeniiipmanitgbeie 13

RE ee CO becetnienacinntorannesierietaninitaietdiuaanlenuinn 11, 12, 14

Be irs, UD eicsecssiiesssasisanisctsidinetiinisasinenaieneninmiatabhcoalaaiiaaniveaie 11,12

Oe Oe eee eair MIU siteiiacssasstnniiehaiasacenicietiiblesnirpaitbitcieataphonditioveihinds 11, 12,13

31 U.S.C. 6902 (1994 & Supp. TV 1998) ......cccrcccccssecsessossosenses 13

31 U.S.C. GO02(aK1) (Supp. TV 1GBB) .2.0..-cccccececessssesecascssssonses 13

Cal. Gov’t Code (West 1966):

Fe Oe ts ROE rentesshineeniiidaubnaanimanntndids 3

Oe Ie ce ninssensicccctensnirercecesisinisieintensidenbdinsenenialaatibiaionsiabomatie 3

OF SONI isssctecscsiusoniiescitoncsapuinita beanie teed dieeniekcaabaaiaiaa aad 3

ROR nee ee See ee RN rT NTE 5, 10

Gr Ce I, FIPUG) cctciesiensssiniesisnrencipetanitnatnintiiniinit 4-5, 10

Cal. Health & Safety Code (West 1994):

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Fe COD ceticetconiesieicincensaciteiasentscnenansbiniesinssiipecaulinntiaimtianiiie 14

Miscellaneous:

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In the Supreme Court of the Gnited States

No. 99-1209

NOVATO FIRE PROTECTION DISTRICT, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-12a)

is reported at 181 F.3d 1135. The opinion of the district

court (Pet. App. 13a-22a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 7, 1999. A petition for rehearing was denied on

September 21, 1999. Pet. App. 23a. On December 6,

1999, Justice O’Connor extended the time for filing a

petition for a writ of certiorari to and including January

20, 2000. The petition for a writ of certiorari was filed

on January 19, 2000. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Under California law, fire protection services are

generally provided by Fire Protection Districts. Pet.

App. 7a-8a & n.4. The Novato Fire Protection District

(NFPD or District) has an obligation under California

law to provide fire protection and emergency medical

services to all entities located in the District, which is in

Marin County, California. Jd. at 8a, 13a.

In the 1930s, the United States acquired Hamilton

Field and built the Hamilton Air Force Base on the

property, which is located in Marin County. Pet. App.

2a, 13a. Until the base was decommissioned in 1974, the

federal government provided its own primary fire

protection services on the base, and NFPD provided

secondary response services. /d. at 2a, 9a. After the

base was decommissioned, the Navy (which became the

principal occupant of the property) sought to obtain

NFPD’s primary fire protection services. /d. at 2a.

NFPD entered into a contract with the Navy to

provide primary fire protection services on the base.

The contract required the federal government to pay a

fee for fire protection services. Pet. App. 2a. NFPD

was aware both that the base was within the district’s

geographical boundaries and that, as federal property,

the base was exempt from state taxation. Jd. at 9a;

Court of Appeais Excerpts of Record (C.A. E.R.) 132.

The fee specified in the contract, however, was not

calculated based on the cost of providing fire protection

services to Hamilton Field. Instead, the contract re-

quired the Navy to pay NFPD “an amount equivalent

to the revenue the District would receive were the

Navy on property tax rolls.” Pet. App. 6a.

Concerned that this charge might constitute an

impermissible tax on the federal government because of

NFPD’s pre-existing state-law duty to provide fire

protection services within the District, NF PD sought to

eliminate the problem by redrawing the District’s

boundaries to exclude Hamilton Field. Pet. App. 2a-3a.

NFPD therefore petitioned the Local Agency Forma-

tion Commission for Marin County (LAFCo) for per-

mission to initiate proceedings to detach the federal

property from the District. Jd. at 3a.'

As LAFCo’s Executive Director explained, NF PD’s

purpose in seeking detachment was “to insure that it

will receive compensation for any services it provides to

the currently tax exempt properties.” C.A. E.R. 132 In

addition, a resolution of NFPD’s Board of Directors

explained that “the reason for said proposed detach-

ment is that the District may have the legal responsi-

bility for providing fire protection to said territory, and

said territory produces no tax revenue to District to

pay for such services, which imposes an intollerable

[sic] burden upon the remaining property owners in the

District.” C.A. E.R. 137-138.

In response to NFPD’s petition, LAFCo passed a

resolution approving the detachment proceedings and

calling for an election to confirm NFPD’s decision to

exclude Hamilton Field from the District. Pet. App. 3a-

4a. Despite formal objections from the Navy and the

Air Force, NFPD’s Board adopted a resolution in favor

of detachment. /d. at 4a.

1 At the time, local agency formation commissions had the

power to organize fire protection districts. See Cal. Gov’t Code

§ 54774 (West 1966 & Supp. 1976); Pet. App. 3a nn.2-3. Detach-

ment was governed by Cal. Gov’t Code §§ 56000-56550 (West 1966)

and defined as “the detachment, deannexation, exclusion, deletion

or removal from a district of any portion of the territory of such

district.” Cal. Gov’t Code § 56038 (West 1966).

The detachment issue was included on the ballot in

the Ngvember 1977 local election. The votes of the

residents of the federal property were not separately

tallied. Marin County voters approved detachment of

the federal property, and the California Secretary of

State recognized the detachment. Pet. App. 4a.

From the time of the detachment until 1996, the

federal government entered into annual contracts with

NFPD to obtain fire protection services for Hamilton

Field. Pet. App. 2a, 14a. By the terms of those con-

tracts, the annual payment was, as it was in the original

contract, in “an amount equivalent to the revenue the

District would receive were the [federal property] on

[the] tax rolls.” Jd. at 6a.

2. In 1996, NF PD and the United States were un-

able to agree on the terms of the contract for fire pro-

tection services. In response, NFPD filed suit in the

Superior Court of California for the County of Marin to

obtain a declaration that the detachment was valid and

that, as aresult, NF'PD had no obligation to provide fire

services tou Hamilton Field. Pet. App. 4a. The United

States removed the case to the United States District

Court for the Northern District of California, and the

parties filed cross-motions for summary judgment. /d.

at 5a.

The district court granted the United States’ motion.

Pet. App. 22a. The court first held that the United

States was not subject to a state-law statute of limita-

tions in its challenge to the detachment proceedings

and that the government’s claim was not barred by the

doctrines of waiver or estoppel. Jd. at 16a-18a.

The court then held that the detachment was invalid

because it violated two state-law requirements. Pet.

App. 19a-22a. First, the court concluded that the de-

tachment violated the version of Cal. Gov’t Code

Section 56316 that was in effect in August 1977. That

provision required that a detachment proceeding be

abandoned if “written protests filed and not withdrawn

prior to the conclusion of the hearing represent * * *

[mJore than 50 percent of the assessed value of the land

therein.” Cal. Gov’t Code § 56316(a)(1) (West 1966 &

Supp. 1976). Because the government “owned all of

Hamilton Field,” the court concluded that “its protest

represented more than half the assessed value of the

area to be detached, satisfying the requirement of

section 56316.” Pet. App. 20a. The court therefore

ruled that “the detachment was invalid.” Jbid.

Second, the court concluded that the detachment

violated the former Cal. Gov’t Code § 56252(b) (West

1966), which required that votes held in the area sought

to be detached be tallied separately from the votes

in the remainder of the district. Pet. App. 20a-22a. Be-

cause “such a vote did not occur in this case, the detach-

ment was confirmed by a process that violated Cali-

fornia municipal reorganization law, and is invalid.” Id.

at 22a.

3. The court of appeals affirmed on federal-law

grounds. Pet. App. 12a. The court held that the de-

tachment and contractual fees that NFPD charged the

United States violated the federal government’s consti-

tutional immunity from state taxation. Jd. at 5a-10a.

The court explained that inter-governmental tax im-

munity, first recognized in M’Culloch v. Maryland, 17

U.S. (4 Wheat.) 316 (1819), applies only to taxes im-

posed on entities “so closely connected with the govern-

ment that the two cannot realistically be viewed as

separate entities.” Pet. App. 5a (quoting United States

v. New Mexico, 455 U.S. 720, 735 (1982)). The court

noted that the “parties do not dispute that the federal

occupants of Hamilton Field enjoy inter-governmental

tax immunity.” /bid.

The court held that the contractual fees that NFPD

charged the federal government constituted an uncon-

stitutional tax. Pet. App. 5a-7a. The court explained

that, “[wJhen analyzing whether a fee constitutes an

impermissible tax, ‘we are not bound by the characteri-

zation given to a state tax by state courts or legis-

latures, or relieved by it from the duty of considering

the real nature of the tax and its effect upon the federal

right asserted.’” Jd. at 6a (quoting Carpenter v. Shaw,

280 U.S. 363, 367-368 (1930)). Because the “fees that

the District charged the government in exchange for

continued fire and emergency medical protection were

based not upon the actual cost of services provided to

Hamilton Field. but rather upon the value of the pro-

perty in question,” the court concluded that the fees

amounted to an impermissible tax. Jbid.

The court reached that conclusion in light of its hold-

ing that the detachment of the property violated the

Supremacy Clause. Pet. App. 7a-10a. The court noted

that NFPD and LAFCo acknowledged the District’s

“pre-existing duty to provide” fire protection services

to Hamilton Field. Jd. at 9a. The court concluded that,

“under the unique circumstances of this case,” ibid., the

detachment action “effectively g[a]ve [the] municipality

a method of assessing a property tax from the federal

government in exchange for the provision of any and all

basic services,” id. at 7a.”

* Because the court of appeals found the charges and detach-

ment invalid under federal law, the court did not address the

district court’s holding that the detachment was invalid under

California law. Pet. App. lla.

ARGUMENT

The decision of the court of appeals is correct.

Furthermore, the result reached by the court of appeals

__ is, as the district court held, supported by independent

state-law grounds. This Court’s review is not war-

ranted.

1. The court of appeals correctly concluded that

NFPD’s attempt effectively to assess an ad valorem

tax on federal property is impermissible. That con-

clusion flows from two well-established principles of

constitutional law. First, “possessions, institutions, and

activities of the Federal Government itself in the ab-

sence of [express] congressional consent are not subject

to any form of state taxation.” Pet. App. 5a (quoting

United States v. County of Allegheny, 322 U.S. 174, 177

(1944)); see also United States v. New Mewico, 455 U.S.

720, 733 (1982). Second, “the constitutional immunity

doctrine * * * has, from the time of M’Culloch v.

Maryland, [17 U.S. (4 Wheat.) 316 (1819),] barred taxes

that ‘operat[e] so as to discriminate against the Govern-

ment or those with whom it deals.’” Davis v. Michigan

Dep’t of the Treasury, 489 U.S. 803, 812 (1989) (quoting

United States v. City of Detroit, 355 U.S. 466, 473

(1958)).

As the court of appeals explained, NFPD recognized

but sought to evade those basic rules of constitutional

law. Pet. App. 2a-3a, 9a; see C.A. E.R. 182. NFPD

acknowledged its duty to provide fire protection

services to all entities within the District, including

Hamilton Field. Pet. App. 9a. Further, NFPD did not

dispute that, before the 1977 detachment proceedings,

Hamilton Field was within the District. Jd. at 8a.

NFPD was concerned that, because the “Hamilton

properties remain publically [sic] owned and therein

tax exempt, they will not produce any tax revenues to

the District.” C.A. E.R. 132. Aware that it could not

levy a direct tax on the federal properties or refuse

selectively to provide fire services to those properties,

NF PD sought to accomplish indirectly what it could not

accomplish directly: NFPD attempted to redraw its

boundaries to exclude Hamilton Field, and then sought

to levy on the federal government a charge in an

“amount equivalent to the revenue the District would

receive were the Navy on property tax rolls,” Pet.

App. 6a, in the hope that it could “ensure that the

District would continue to receive compensation for any

services it provided to the currently tax exempt pro-

perties,” id. at 3a (internal quotation marks omitted).

See also C.A. E.R. 137-138 (“[T]he reason for said

proposed detachment is that the District may have the

legal responsibility for providing fire protection to said |

territory, and said territory produces no tax revenue to

District to pay for such services, which imposes an

intollerable [sic] burden upon the remaining property

owners in the District.”).

In those “unique circumstances,” Pet. App. 9a, the |

court of appeals correctly concluded that the detach-

ment and contractual charge, when viewed together, |

constitute an impermissible attempt to tax the federal |

government. See id. at 5a-10a. As the court of appeals |

explained, “[w]hen analyzing whether a fee constitutes

an impermissible tax, ‘[federal courts] are not bound by

the characterization given to a state tax by state courts

or legislatures, or relieved by it from the duty of con-

sidering the real nature of the tax and its effect upon

the federal right asserted.” Jd. at 6a (quoting

Carpenter v. Shaw, 280 U.S. 363, 367-368 (1930)). Look-

ing to “the effect, not the form, of the local government

action,” id. at 7a (citing Cownty of Allegheny, 322 U.S.

at 184), the court of appeals inquired whether the

detachment, in conjunction with NFPD’s decision to

assess a contractual fee in an “amount equivalent to the

revenue the District would receive were the Navy on

property tax rolls,” id. at 6a, was in effect an attempt to

tax the federal government.

As the court of appeals explained, the contractual fee

that NFPD sought to charge the federal occupants of

Hamilton Field was not based on “the actual cost of

services provided” but rather the value of the property

itself. Pet. App. 6a. The charge was therefore not a

permissible “user fee,” which is a payment “given in

return for a government-provided benefit.” United

States v. City of Huntington, 999 F.2d 71, 74 (4th Cir.

1993); cf. United States v. City of Columbia, 914 F.2d

151 (8th Cir. 1990) (holding that city utility fee not an

impermissible tax). Instead, by assessing the fee in an

“amount equivalent to the revenue the District would

receive were the Navy on property tax rolls,” Pet. App.

6a, NFPD levied an ad valorem property tax on the

United States. See Michelin Tire Corp. v. Wages, 423

U.S. 276, 287 (1976) (“[Ad valorem] property taxes are

taxes by which a State apportions the cost of such

services as police and fire protection among the bene-

ficiaries according to their respective wealth.”).

This Court has made clear that a State or locality

violates the Supremacy Clause when the “substance” of

its action “is to lay an ad valorem general property tax

on property owned by the United States.” County of

Allegheny, 322 U.S. at 185, 192; accord City of Hunt-

ington, 999 F.2d at 74; City of Cincinnati v. United

States, 39 Fed. Cl. 271, 274 (1997) (storm drainage

charge constitutes impermissible tax because it “is

based upon the size and the development intensity of

the commercial property owned by the federal govern-

ment, and not on the services actually used”), aff’d, 153

F.3d 1375 (Fed. Cir. 1998). The court of appeals here

thus correctly concluded that the detachment proceed-

ings and contractual assessment constituted an imper-

missible attempt to tax the United States.

2. Review of the decision in this case would be

particularly inappropriate because, as the district court

held, the result reached by the court of appeals is also

supported by independent state-law grounds. Pet.

App. 19a-22a. As the district court held (7d. at 19a), the

detachment violated the state-law requirement that a

detachment proceeding be abandoned if “written pro-

tests filed and not withdrawn prior to the conclusion of

the hearing represent * * * [mlJore than 50 percent of

the assessed value of land therein.” Cal. Gov’t Code

§ 56316 (West 1966 & Supp. 1976). Because the federal

government’s “protest represented more than half the

assessed value of the area to be detached,” the court

correctly held that “the detachment was invalid.” Pet.

App. 20a.

The district court also concluded that the detachment

violated the separate-tallying requirement of former

Cal. Gov’t Code § 56252(b) (West 1966). Pet. App. 20a-

22a. Because separate votes “did not occur in this case,

the detachment was confirmed by a process that

violated California municipal reorganization law, and is

invalid.” Jd. at 22a. Because the detachment was

invalid, NF PD continues to have an obligation to pro-

vide fire services to Hamilton Field.

3. None of the reasons advanced by petitioner justi-.

fies this Court’s review of this case.

a. Petitioner’s contention (Pet. 11, 13) that the de-

cision of the court of appeals conflicts with Washington

v. United States, 460 U.S. 536 (1983), is incorrect. In

Washington, this Court upheld a sales and use tax that

the State imposed on “contractors that work for the

federal government.” Jd. at 589. The Court reaffirmed,

however, the long-standing rule that a State may not

lay a tax directly on the United States. Id. at 540. The

charge imposed by NFPD in this case was imposed not

on a third party but directly on the federal government.

b. Petitioner also errs in contending (Pet. 14-15) that

Congress waived the government’s immunity from

liability for the NFPD charge by enacting 15 U.S.C.

2210. The court of appeals did not discuss Section 2210

in its opinion, and that statute has no bearing on the

question presented by the petition.

Section 2210 provides:

Reimbursement for costs of firefighting on

Federal property

(a) Filing of claims

Each fire service that engages in the

fighting of a fire on property which is under the

jurisdiction of the United States may file a claim

with the Administrator for the amount of direct

expenses and direct losses incurred by such fire

service as a result of fighting such fire. The claim

shall include such supporting information as the

Administrator may prescribe.

(b) Determination

Upon receipt of a claim filed under sub-

section (a) of this section, the Administrator shall

determine—

(1) what payments, if any, to the fire

service or its parent jurisdiction, including taxes

or payments in lieu of taxes, the United States

has made for the support of fire services on the

property in question;

(2) the extent to which the fire service

incurred additional firefighting costs, over and

above its normal operating costs, in connection

with the fire which is the subject of the claim; and

(3) the amount, if any, of the additional

costs referred to in paragraph (2) of this sub-

section which were not adequately covered by the

payments referred to in paragraph (1) of this

subsection.

15 U.S.C. 2210.

Section 2210 does not address the federal govern-

ment’s immunity from general, annual assessments that

finance local fire protection services. Indeed, the pro-

vision does not directly address the question of inter-

governmental tax immunity. As its title indicates,

Section 2210 creates a mechanism to reimburse state

and local governments for expenses that they actually

incur in combating fires on federal property. Sub-

section (a) provides that state and local governments

may file claims for reimbursement of direct expenses

and direct losses incurred in rendering fire fighting

services. Although Section 2210(b) provides that claims

against the United States are to be offset by any taxes

(or payments in lieu of taxes) that have been made for

local fire protection services, the statute does not waive

the federal government’s immunity from state and local

taxes. Instead, the statute merely reduces the amount

of reimbursement when federal agencies or instru-

mentalities have, pursuant to other federal statutes that

waive federal immunity from state and local taxation,

paid taxes that support local fire services.’ For

example, Section 2210(b) provides for a reduction in

fire-control claims against Federal Reserve Banks,

which must pay state and local real estate taxes under

12 U.S.C. 531. Similarly, Section 2210(b) provides for a

reduction in claims against the United States when the

federal government has made payments “in lieu of

taxes,” such as payments pursuant to federal statutes

that compensate local governments for the loss of reve-

nue occasioned by their inability to assess taxes against

certain federal property located in the municipality.

See 60 Comp. Gen. 637, 640 (1981). Statutes such as 31

U.S.C. 6902 (1994 & Supp. IV 1998) provide for pay-

ments by the federal government to units of local

“governments in which certain tax-exempt land owned

by the federal government is located. Such payments,

when made, may be used “for any governmental pur-

pose.” 31 U.S.C. 6902(a)(1) (Supp. IV 1998).

c. There is also no merit to petitioner’s argument

(Pet. 15) that the court of appeals’ decision “imposes on

state and local governments a constitutional obligation

to provide free services to the federal government ad

3 Other federal statutes explicitly waive federal immunity from

state and local taxation in specific circumstances. See, e.g., 12

U.S.C. 531 (“Federal Reserve banks * * * shall be exempt from

Federal, State, and local taxation, except taxes upon real estate.”);

12 U.S.C. 1452(e) (The Federal Home Loan Mortgage Corporation

“shall be exempt from all taxation * * * except that any real

property of the Corporation shall be subject to State, territorial,

county, municipal, or local taxation to the same extent according to

its value as other real property is taxed.”); 15 U.S.C. 713a-5 (same

for taxation of real property owned by Commodity Credit Cor-

poration). As those statutes demonstrate, when Congress intends

to waive federal immunity from state and local taxation, it

expresses its intention clearly.

infinitum.” The decision of the court of appeals in-

validated only the particular means utilized by peti-

tioner to seek payment and did not, for example,

address whether reimbursement might be available to

petitioner under 15 U.S.C. 2210, for the cost of services

actually rendered. Moreover, the obligation of NF PD

to provide fire services to Hamilton Field arises under

state, not federal, law. See Pet. App. 8a & n.4, 13a; Cal.

Health & Safety Code § 13821 (West 1964); zd. § 13811

(1994). Although California may elect generally to

restrict the availability of fire protection services, one

of its localities may not, because the federal govern-

ment enjoys tax immunity, evade its state-law duty to

provide those services to federal properties within its

borders.‘

Likewise, a locality may not, as NFPD has here,

assess an ad valorem tax on the United States in return

for the services it is required to provide under state

law. Otherwise, “virtually all of what are now con-

sidered taxes could be transmuted into user fees by

the simple expedient of dividing what are generally

accepted as taxes into constituent parts, e.g., a police

fee.” Pet. App. 7a (quoting City of Huntington, 999

F.2d at 74). This Court’s precedents do not allow such a

result. See, e.g., County of Allegheny, 322 U.S. at 185,

192.

d. Finally, petitioner’s contention (Pet. 17) that the

court of appeals’ decision conflicts with Printz v. United

States, 521 U.S. 898 (1997), lacks merit. Congress has

not commanded the officers of NFPD to “enforce a

federal regulatory program.” I/d. at 935. Instead, as

noted above, the State of California has imposed on

4 Indeed, as noted above, the district court concluded that the

detachment proceedings violated state law. Pet. App. 19a-22a.

NF'PD the obligation to provide fire services within its

District. Nothing in Printz suggests that NFPD may

impose an ad valorem tax on federal property to fund

that obligation.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.