Thursday, March 9, 2017

No Standing to Challenge BIA's Native American Land Lease Tax Reg

The Ninth Circuit ruled that the California Desert Water Agency lacks standing to challenge a new Bureau of Indian Affairs regulation concerning taxes on leases on Native American lands to third parties. The ruling ends DWA's challenge, although DWA could resurrect it, if BIA later halts DWA taxes under the reg.

The case centers around a BIA reg on state and local government taxation of leases by non-Native Americans on Native American lands. The relevant subsection says that "[s]ubject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or possessory interests may be subject to taxation by the Indian tribe with jurisdiction."

The DWA, which assess taxes on these leases, sued under the APA. But the Ninth Circuit ruled that it lacked standing.

The court said that the regulatory language "[s]ubject only to applicable Federal law," incorporated existing case law, in particular, White Mountain Apache Tribe v. Bracker (1980), which held that courts must apply a fact-specific balancing test in order to determine whether federal law preempts any particular state effort to regulate non-Native American conduct on tribal lands. In other words, the reg, as understood incorporating the Bracker test, couldn't preempt and halt DWA taxation until a court, applying the Bracker test, said so. The reg by its own force doesn't preempt. And with no preemption of DWA taxation, DWA doesn't have a harm, and without a harm DWA lacks standing. (Indeed, after BIA issued the reg, DWA continued to collect taxes on these leases, with no direct threat of enforcement by the BIA.)

The court went on to reject DWA's argument that notwithstanding Bracker incorporation, it still suffered a harm, because the reg would encourage leaseholders not to pay their taxes. The court applied Linda R.S. v. Richard D. and Simon v. Eastern Ky. Welfare Rights Org. in support of its conclusion that "a plaintiff in DWA's position lacks standing if, notwithstanding the relief sought, the third parties would retain discretion to continue their harmful behavior or, alternatively, if it is too speculative to conclude that they would modify their behavior in the way the plaintiff desires."

http://lawprofessors.typepad.com/conlaw/2017/03/no-standing-to-challenge-bias-native-american-land-lease-tax-reg.html

Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink

Comments

That seems to comport with traditional standing analysis -- a federal court's jurisdiction should depend on a putative litigant demonstrating he, she or it was harmed.

In that context, does anyone want to discuss the Ninth Circuit panel’s third-party standing analysis in the "Muslim ban" litigation?

It runs along these lines: nationals from 7 countries were prevented from entering Washington State by the E.O., so some of them would not enter the state’s universities as faculty, some would be prevented from performing research in those schools, and some would not be permitted to return if they left the U.S.:

https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf

Talk about tenuous . . .. Can anyone identify any other instance of such speculative problems foreign nationals might encounter being upheld as the basis of third-party standing by a state sufficient to invoke the jurisdiction of a federal court?

Posted by: Art Cowen | Mar 12, 2017 12:23:20 PM

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