IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff,

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1 0 BENJAMIN C. MIZER Acting Assistant Attorney General JOSEPH H. HARRINGTON Assistant United States Attorney, E.D.WA JOHN R. TYLER Assistant Director KENNETH E. SEALLS Trial Attorney U.S. Department of Justice, Civil Division Federal Programs Branch 0 Massachusetts Avenue, N.W., Rm. Washington, D.C. 00 Telephone: (0 0- FAX: (0-0 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON UNITED STATES OF AMERICA, v. Plaintiff, KING MOUNTAIN TOBACCO COMPANY, INC., Defendant. Case No. :-cv-0-rmp UNITED STATES OF AMERICA S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS COUNTERCLAIM //0 With Oral Argument 0 UNITED STATES REPLY MEMORANDUM

2 0 TABLE OF CONTENTS PAGE INTRODUCTION... ARGUMENT... I. King Mountain Has Not Refuted That FETRA Applies To Native American Corporations, Including King Mountain. II. King Mountain Has Not Sufficiently Pled That The FETRA Assessments Were Improperly Calculated... CONCLUSION UNITED STATES REPLY MEMORANDUM - i

3 0 0 CASES TABLE OF AUTHORITIES PAGE(S Anderson v. Teck Metals, Ltd., No. CV--0, 0 WL 00 (E.D. Wash. Jan., 0..., Ashcroft v. Iqbal, U.S. (00... Bell Atlantic Corp. v. Twombly, 0 U.S. (00... Cavalier Telephone, LLC v. Va. Elec. & Power Co., 0 F.d (th Cir Coit Independence Joint Venture v. Federal Savings & Loan Ins. Corp., U.S. (... Frenzel v. AliphCom, No. -cv-0, 0 WL 0 (N.D. Cal. Dec., 0... King Mountain Tobacco Company v. McKenna, F.d (th Cir passim King Mountain Tobacco Company, Inc. v. Alcohol & Tobacco Tax & Trade Bur., F. Supp. d 0 (E.D. Wash Solis v. Matheson, F.d (th Cir United States v. Native Wholesale Supply Co., F. Supp. d (W.D. N.Y Washington v. Confederated Tribes of Colville Indian Reservation, U.S. (0... UNITED STATES REPLY MEMORANDUM - ii

4 STATUTES AND REGULATIONS U.S.C. d(i(... U.S.C. d(j(... C.F.R..(a,(b... C.F.R..(d.. RULES Federal Rule of Civil Procedure (a(... Local Rule.(c UNITED STATES REPLY MEMORANDUM - iii

5 0 0 Plaintiff, the United States of America, pursuant to Local Rule.(c and by undersigned counsel, hereby replies to Defendant King Mountain Tobacco Company, Inc. s ( King Mountain opposition to the United States Motion to Dismiss King Mountain s Counterclaim. For the reasons which follow, as well as those in the United States Motion to Dismiss, the Counterclaim should be dismissed. INTRODUCTION The United States established in its Memorandum in Support of its Motion to Dismiss, ECF No., that FETRA is a general applicability statute which by law is presumed to apply and does in fact apply to Native American tobacco companies that manufacture or import tobacco products on tribal land. In its Opposition, King Mountain principally defends its Counterclaim for refund and abatement based on the Yakama Treaty ( Treaty or Yakama Treaty, which the Ninth Circuit has ruled clearly and unambiguously does not give the Yakamas a right to trade. See King Mountain Tobacco Company v. McKenna, F. d, (th Cir. 0. King Mountain s other argument, that it is unaware of the amount it owes the United States because cigarette production was unreported and FETRA fees were improperly calculated, is belied by its statement agreeing in response to the United States Statement of Material Facts for summary judgment, ECF No. -, that the UNITED STATES REPLY MEMORANDUM -

6 0 0 CCC has imposed quarterly FETRA assessments upon King Mountain between April, 00 and January, 0, in the amounts reflected in the administrative record in this matter, ECF No. at (a, and by the Administrative Record in this case. King Mountain has simply not shown a cognizable claim for failing to pay all of its FETRA assessments, and should not be allowed to continue this baseless Counterclaim. ARGUMENT I. King Mountain Has Not Refuted That FETRA Applies To Native American Corporations, Including King Mountain Indians and their tribes are equally subject to statutes of general applicability, just as any other United States citizen. Solis v. Matheson, F.d, 0 (th Cir. 00 (holding overtime provisions of the Fair Labor Standards Act apply to Native American-owned retail business located on trust land (citations omitted. For a general applicability statute not to apply to Native Americans, the statute must be silent as to its applicability to them, and: ( the law touches exclusive rights of self-governance in purely intramural matters; ( the application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or ( there is proof by legislative history or some other means that Congress intended the law not to apply to Indians on their reservations. Id. at 0 (citations omitted. King Mountain has UNITED STATES REPLY MEMORANDUM -

7 0 0 not identified legally cognizable exclusive rights of self-governance..., an abrogation of Treaty rights, or a legislative exemption allowing the Yakamas not to pay FETRA assessments. Unable to refute the United States points raised in its dismissal motion, King Mountain criticizes the United States citation to United States v. Native Wholesale Supply Co., F. Supp. d, (W.D. N.Y. 0, a FETRA case in which the trial court ruled: FETRA does not violate rights under the Jay Treaty and the Treaty of Ghent... Native American importers or manufacturers of tobacco products are not exempt from FETRA and its assessment obligations.. The point of this citation is not to compare the Jay or Ghent Treaty to the Yakama Treaty, but rather, that Native American tobacco companies are required to pay their FETRA assessments. King Mountain s Counterclaim ignores the Ninth Circuit s Yakama Treaty ruling in King Mountain Tobacco Company v. McKenna, F. d at. There, the Ninth Circuit ruled Article II does not address trade and [n]owhere in Article III is the right to trade discussed. Id. at. In that case, King Mountain raised the Yakama Treaty unsuccessfully in support of its attempt to avoid paying into the Washington State escrow fund established for cigarette manufacturers that chose not to enter into UNITED STATES REPLY MEMORANDUM -

8 0 0 the Master Settlement Agreement of. Rejecting King Mountain s argument that the trial court, which had granted summary judgment to the State on King Mountain s claim for relief from the regulatory statute, should have considered evidence of the Yakamas understanding of the Treaty, the Court concluded the Treaty was not ambiguous and there is no right to trade in the Yakama Treaty. King Mountain Tobacco Company v. McKenna, F. d at. In the instant matter, there is absolutely no basis that supports King Mountain s Counterclaim which relies on the Yakama Treaty. The Court should therefore dismiss King The Master Settlement Agreement ( MSA governs the settlement of suits brought by states, the District of Columbia, and five United States territories against the four dominant cigarette manufacturers to offset smoking-related healthcare costs. See King Mountain Tobacco Company v. McKenna, F. d at. The Ninth Circuit affirmed the District Court s findings that King Mountain s trade included shipping its tobacco crop to Tennessee where it is threshed... sent to a factory in North Carolina where more tobacco is purchased and blended with reservation tobacco... [and] sent back to the reservation, where much of it is made into cigarettes[,] and sold in Washington State and approximately other states. McKenna, F. d at. UNITED STATES REPLY MEMORANDUM -

9 0 0 Mountain s Counterclaim, as it lacks both a cognizable legal theory and sufficient facts alleged under a cognizable legal theory. Anderson v. Teck Metals, Ltd., No. CV--0, 0 WL 00, at * (E.D. Wash. Jan., 0 (citation omitted. King Mountain devotes much of its Opposition to the non-issue of whether a FETRA assessment is a tax or a regulatory fee, contending FETRA regulates but does not tax. ECF No. at -. In so doing, King Mountain misapprehends the purpose of the United States analogizing the Court s rejection of the King Mountain Treaty defense in King Mountain Tobacco Company, Inc. v. Alcohol & Tobacco Tax & Trade Bur., F. Supp. d 0 (E.D. Wash. 0 to what King Mountain attempts in this action. The United States cites to Alcohol & Tobacco Tax & Trade to illustrate the Court s reasoning in rejecting the General Allotment Act and Yakama Treaty defenses. See ECF No. at 0-. Assuming, arguendo, FETRA is regulatory and not a tax, FETRA can be likened to the Washington State escrow statute in McKenna, F.d at, for which the Yakama Treaty was no defense. In disregarding McKenna s ruling that the Yakama Treaty provides no right to trade, King Mountain makes a distinction without a difference in asserting FETRA imposes a fee. ECF No. at. Even if FETRA imposes a fee, the burden on King Mountain s trade would be less significant than if FETRA were a tax. Cf. King UNITED STATES REPLY MEMORANDUM -

10 0 0 Mountain Tobacco Company v. McKenna, F.d at (holding the State escrow statute is not a tax and it imposes a less significant burden on trade than the tax approved by the Supreme Court in [Washington v. Confederated Tribes of Colville Indian Reservation, U.S. (0]. King Mountain does not refute that its Counterclaim nebulously cites to no particular federal law supporting its Yakama Treaty Counterclaim. Indeed, only now, in the face of the United States dispositive motion, does King Mountain identify for the first time the parts of the Yakama Treaty upon which it relies. It continues, however, not to identify parts of the General Allotment Act or Constitution to show, as required by Federal Rule of Civil Procedure (a(, that King Mountain is entitled to relief. In any event, the mid-stream amendment in citing now to particular Articles of the Yakama Treaty should be rebuffed. See Frenzel v. AliphCom, No. -cv-0, 0 WL 0, at * (N.D. Cal. Dec., 0 (holding the complaint may not be amended by the briefs in opposition to a motion to dismiss. (citation omitted. King Mountain s argument that the Treaty prevents fees imposed upon Yakamas for the benefit of non-yakamas, ECF No. at, is meritless. The Treaty does not address trade, see McKenna, F.d at. In any event, this argument must fail as the Ninth Circuit allowed the State of Washington to collect escrow UNITED STATES REPLY MEMORANDUM -

11 0 0 funds from King Mountain, funds which presumably will go to the benefit of non- Yakamas. II. King Mountain Has Not Sufficiently Pled That The FETRA Assessments Were Improperly Calculated Dismissal for failure to state a claim upon which relief can be granted is appropriate when there is either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Anderson v. Teck Metals, Ltd., No. CV--0, 0 WL 00, at * (E.D. Wash. Jan., 0 (internal quotation marks omitted. The claims of unreported cigarettes and improper calculations in this matter lack a cognizable legal theory and are bereft of facts alleged thereunder. Congress created a mandatory administrative-appeal process for companies to challenge their FETRA assessments. See U.S.C. d(i( (providing that companies may challenge an assessment within 0 days of receiving written notice of the assessment. FETRA s regulations implement this provision by requiring companies to provide a written statement that sets forth the basis of the dispute, and then providing for an informal hearing at which the [company] may present oral and written evidence in support of the [company s] position. C.F.R..(a,(b. A company aggrieved by the outcome of its appeal may thereafter obtain judicial review of its challenge but only after complying with the UNITED STATES REPLY MEMORANDUM -

12 0 0 administrative-appeal process. See U.S.C. d(j( (providing for judicial review at any time following exhaustion of the administrative remedies available under subsection (i (emphasis added; see also C.F.R..(d. Having failed to raise the unreported cigarettes and improper calculations arguments at the administrative level, see Designation and Certification of Administrative Record, at, identifying the totality of the Administrative Record, King Mountain cannot bring them now. Had King Mountain developed a full administrative record concerning these claims, USDA could have developed a full administrative record, applied its expertise, and then reached a reasoned resolution the very purpose of the exhaustion requirement. See Cavalier Telephone, LLC v. Va. Elec. & Power Co., 0 F.d, (th Cir. 00 ( [T]he exhaustion requirement serves to allow an agency the opportunity to use its discretion and expertise to resolve a dispute without premature judicial intervention[.] (internal quotation marks omitted. Because King Mountain failed to raise these claims administratively, it deprived USDA of the opportunity to address them. Thus, King Mountain is now precluded from raising any challenges to its assessments based on alleged unreported cigarette production and improper calculations. See Coit Independence Joint Venture v. Federal Savings & Loan Ins. Corp., U.S., ( UNITED STATES REPLY MEMORANDUM -

13 0 0 ( [E]xhaustion of administrative remedies is required where Congress imposes an exhaustion requirement by statute.. The United States bases for its proper calculations of the assessments are in the Administrative Record. Part of the Administrative Record includes the outstanding Quarterly Assessment Invoices (KM-AR , the latest quarterly statement (KM-AR , and Detail History through February, 0 (KM-AR Each of the invoices provided to King Mountain (KM-AR , indicates the product class and product market share, in Block, Class of Tobacco, and in Parts A ( National Assessment Information and B ( Class and Company Assessment Information. See United States Reply Statement of Material Facts, ECF No. 0-, at. But King Mountain s allegations of unreported cigarettes and improper calculations do not contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, U.S., (00 (quoting Bell Atlantic Corp. v. Twombly, 0 U.S., 0 (00. In sum, King Mountain has failed to plead a claim upon which relief can be granted and its Counterclaim should therefore be dismissed. UNITED STATES REPLY MEMORANDUM -

14 CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court dismiss King Mountain s Counterclaim. 0 0 Dated: April 0, 0 Respectfully submitted, BENJAMIN C. MIZER Acting Assistant Attorney General JOSEPH H. HARRINGTON Assistant United States Attorney, E.D.WA JOHN R. TYLER Assistant Branch Director s/ Kenneth E. Sealls KENNETH E. SEALLS D.C. Bar # 00 Trial Attorney Federal Programs Branch Civil Division 0 Massachusetts Avenue, N.W. Rm. Washington, D.C. 00 Telephone: (0 0- FAX: (0-0 Kenneth.Sealls@usdoj.gov Attorneys for the United States of America CERTIFICATE OF SERVICE I hereby certify that on April 0, 0, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: UNITED STATES REPLY MEMORANDUM - 0

15 0 0 Randolph H. Barnhouse Justin J. Solimon John Adams Moore, Jr. dbarnhouse@indiancountrylaw.com jsolimon@indiancountrylaw.com mooreadamlawfirm@qwestoffice.net s/ Kenneth E. Sealls KENNETH E. SEALLS Trial Attorney United States Department of Justice UNITED STATES REPLY MEMORANDUM -