Welcome to Scribd. Sign in or start your free trial to enjoy unlimited e-books, audiobooks & documents.Find out more
Standard view
Full view
of .
Look up keyword
Like this
0 of .
Results for:
No results containing your search query
P. 1


|Views: 431|Likes:

More info:

Published by: Time Warner Cable News on Oct 15, 2010
Copyright:Attribution Non-commercial


Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less





UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -ONEIDA NATION OF NEW YORK,Plaintiff,-v-6:10-CV-1071DAVID A. PATERSON, JAMIE WOODWARD,and WILLIAM J. COMISKEY,Defendants.NEW YORK ASSOCIATION OF CONVENIENCESTORES, NEW YORK STATE ASSOCIATIONOF COUNTIES, AMERICAN CANCER SOCIETY, Amici Curiae.- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - APPEARANCES:OF COUNSEL:ONEIDA NATION LEGAL DEPARTMENTPETER D. CARMEN, ESQ. Attorneys for Oneida Indian NationMEGHAN MURPHY BEAKMAN, ESQ.5218 Patrick RoadVerona, NY 13478ZUCKERMAN SPAEDER LLPMICHAEL R. SMITH, ESQ. Attorneys for Oneida Indian Nation1800 M. Street, N.W.Washington, D.C. 20036WILLIAMS & CONNOLLY LLPDANIEL F. KATZ, ESQ. Attorneys for Oneida Indian NationDENNIS M. BLACK, ESQ.725 12th Street N.W.MICHAEL V. PINKEL, ESQ.Washington, D.C. 20005MATTHEW V. JOHNSON, ESQ.HON. ANDREW M. CUOMOSENTA B. SUIDA, ESQ. Attorney General for the State of New YorkAss't Attorney General Attorney for Defendants615 Erie Boulevard WestSuite 102Syracuse, NY 13204
Case 6:10-cv-01071-DNH -ATB Document 61 Filed 10/14/10 Page 1 of 25
The CapitolDAVID B. ROBERTS, ESQ. Albany, NY 12224Ass't Attorney General ANDREW D. BING, ESQ.Deputy Solicitor GeneralHARRIS BEACH PLLCRICHARD T. SULLIVAN, ESQ. Attorneys for New York Association of Convenience Stores, Amicus curiae726 Exchange Street Suite 1000Buffalo, NY 14210STEPHEN J. ACQUARIO, ESQ.ROBERT W. GIBBON, ESQ.General Counsel for New York State AssociationAss't Counselof Counties, Amicus Curiae540 Broadway, 5th Floor  Albany, NY 12207PATRICK J. MCKENNA, ESQ. Attorney for American Cancer Society,Amicus Curiae260 Osborne Road Albany, NY 12211DAVID N. HURDUnited States District Judge
On September 17, 2010, an Order to Show Cause and Temporary RestrainingOrder ("TRO") was issued. Plaintiff Oneida Nation of New York's ("Oneida Nation") motionfor a preliminary injunction was set down for a hearing on October 1, 2010. The partiesagreed that it would not be necessary to present evidence at the hearing.Defendants cross moved to transfer and/or consolidate, and plaintiff moved to refer the action to mediation. Defendants opposed plaintiff's motions, as did amici curiae NewYork Association of Convenience Stores and New York State Association of Counties.
- 2 -
Case 6:10-cv-01071-DNH -ATB Document 61 Filed 10/14/10 Page 2 of 25
 Amicus curiae American Cancer Society opposed the Oneida Nation's motion for apreliminary injunction. Plaintiff opposed defendants' motion to transfer and/or consolidate.Oral argument was heard on October 1, 2010, in Utica, New York. The TRO wasextended until October 15, 2010. Decision on the motions was reserved. The following arefindings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.
It is well settled that a state cannot impose a tax upon cigarettes sold on areservation to members of an Indian tribe ("member"). Dep't of Tax. & Fin. v. Milhelm Attea& Bros., Inc., 512 U.S. 61, 64, 114 S. Ct. 2028, 2030 (1994). A state may impose a tax uponcigarettes sold on a reservation to non-members of the tribe ("non-member"). Id.New York State ("New York" or "the State") has long had laws requiring collectionof state taxes on cigarettes sold on reservations to non-members. However, the State had apolicy of forbearance, that is, it did not enforce taxation of on-reservation sales of cigarettesto non-members. Following is a general, non-technical description of the regulatory schemedevised by New York in early 2010 following revocation of its forbearance policy.On June 21, 2010, the State enacted amendments to its Tax Law ("the new law") toprovide for taxation of cigarettes sold on a reservation to non-members, and the Governor signed it into law. Under the new law, which was to become effective September 1, 2010,wholesalers and tax stamp agents (collectively "wholesalers") are required to tax stamp allcigarettes whether or not they are bound for on-reservation sales. The wholesaler purchasesstamps from the State at the rate of $4.35 for each pack of cigarettes, which amounts to$43.50 per carton. The new law forbids wholesalers from selling any unstamped cigarettes.
- 3 -
Case 6:10-cv-01071-DNH -ATB Document 61 Filed 10/14/10 Page 3 of 25

You're Reading a Free Preview

/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->