Seminoles lose appeal over electricity tax

“Because the tribe has already had its day in court, it cannot now continue to litigate its challenge with the benefit of our analysis (in the first case) of the shortcomings of its earlier arguments.”

The 26-page ruling by appeals-court judges Martin, Robin Rosenbaum and Jill Pryor

In the latest chapter in years of legal battling, a federal appeals court has rejected arguments by the Seminole Tribe of Florida in a dispute about whether the state should be able to tax electricity used on tribal land.

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Friday upheld a lower-court decision that dismissed a lawsuit filed by the tribe against the Florida Department of Revenue. The lawsuit was the second filed since 2012 about whether the tribe should be shielded from state utility taxes — and the second time the appeals court has ruled against the tribe.

The cases have involved issues such as tribal sovereignty and federal limits on the power of the state to impose taxes on tribal land. After losing the first case, the tribe filed a second lawsuit that more narrowly focused on the constitutionality of taxing 14 types of activities on tribal land, including law enforcement, education, health care, agriculture and gaming.

But in upholding a decision by U.S. District Judge Robert Scola to dismiss the case, the appeals court Friday ruled that the lawsuit was effectively an attempt to relitigate issues from the earlier case — even though the tribe focused on the 14 types of activities.

“(The) tribe had a full and fair opportunity to litigate its challenge to the utility tax and could have advanced its more specific arguments in the first action,” said the 26-page ruling by appeals-court judges Beverly Martin, Robin Rosenbaum and Jill Pryor. “Because the tribe has already had its day in court, it cannot now continue to litigate its challenge with the benefit of our analysis (in the first case) of the shortcomings of its earlier arguments.”

In a 2015 ruling in the first case, the appeals court said that what is known as a state “gross receipts tax” on electricity is imposed on utility companies and not

Beverly

directly on customers. The tribe had argued that the tax dollars would come from the Seminoles for electricity used on tribal lands. As a result, the tribe argued it should not have to pay the state tax.

Attorneys for the tribe contended in a legal filing last year that the legal issues in the second case were different, at least in part because of the focus on the 14 types of activities instead of a broader question about the utility tax.

“In the prior case, the Eleventh Circuit held that federal law does not generally preempt the utilities tax on all utilities services used on tribal land as a matter of law simply because some of the services are used to conduct activities that are exclusively and pervasively regulated by federal law,” the filing said. “That holding is not an issue in the current case. In the current case, the tribe asked the court to determine whether the federal regulation of any or all of 14 specifically enumerated activities is exclusive and pervasive, such that federal law preempts the utilities tax on utilities services used to conduct those activities.”