White Mountain Apache Tribe v. Williams, No. 81-5348

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: NORRIS; The second reason plaintiffs' reliance on Justice Stevens' dissent is misplaced is that the record leaves no room for doubt that Justice Stevens was not addressing the Fourteenth Amendment claims alleged in plaintiffs' federal complaint. Not
• Citation: 798 F.2d 1205
• Parties: WHITE MOUNTAIN APACHE TRIBE, an Indian tribe established pursuant to Executive Order, et al., Plaintiffs-Appellees, v. Jack WILLIAMS, Governor of the State of Arizona, et al., Defendants, and John McLaughlin, Chairman, Arizona State Transportation Board, et al., Defendants-Appellants.
• Decision Date: 20 August 1986
• Docket Number: No. 81-5348

Page 1205

798 F.2d 1205 WHITE MOUNTAIN APACHE TRIBE, an Indian tribe established
pursuant to Executive Order, et al., Plaintiffs-Appellees,
v.
Jack WILLIAMS, Governor of the State of Arizona, et al., Defendants,
and
John McLaughlin, Chairman, Arizona State Transportation
Board, et al., Defendants-Appellants. No. 81-5348. United States Court of Appeals,
Ninth Circuit. Argued and Submitted April 6, 1982.
Decided Feb. 7, 1984.
Petition for Rehearing Granted April 25, 1984.
Reargued and Resubmitted June 18, 1984.
Filed Dec. 19, 1985.
As Amended on Denial of Rehearing and Rehearing En Banc Aug. 20, 1986.

Page 1206

Neil Vincent Wake, Beus, Gilbert, Wake & Morrill, Phoenix, Ariz., for plaintiffs-appellees.

Anthony B. Ching, Phoenix, Ariz., for defendants-appellants.

Appeal from the United States District Court for the District of Arizona.

AMENDED OPINION

Before FLETCHER ^* and NORRIS, Circuit Judges, and BURNS, ^** District Judge.

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NORRIS, Circuit Judge:

This appeal presents the question whether Pinetop Logging Company ("Pinetop") and the White Mountain Apache Tribe (the "Tribe") have stated a claim under 42 U.S.C. Sec. 1983 ¹ for which attorneys's fees are available under the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. Sec. 1988 (1976). ²

I

The facts of this case are set out more fully in White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). In brief, the White Mountain Apache Tribe, which inhabits a reservation in Arizona, organized a tribal enterprise to harvest timber. In 1969 the enterprise entered into a contract with Pinetop Logging Company which provided that Pinetop would perform logging operations on the reservation. Id. at 139, 100 S.Ct. at 2581. In 1971, the Arizona Highway Department and the Arizona Highway Commission assessed a motor carrier license tax and a use fuel tax against Pinetop for activities it performed pursuant to the contract. Id. at 139-40, 100 S.Ct. at 2581-82. Pinetop paid the taxes under protest, and then brought suit in state court to recover them. Id. at 140, 100 S.Ct. at 2581.

In December 1973, after the Tribe had agreed to reimburse Pinetop for the assessed taxes, id. at 140, 100 S.Ct. at 2581, Pinetop and the Tribe brought suit in federal court, seeking a declaratory judgment and an injunction to prevent any further imposition of state taxes against Pinetop. ³ In their federal complaint, Pinetop and the Tribe contended that federal law preempted the state tax laws and that the tax violated their rights to due process and equal protection.

Shortly after commencement of the federal action, the State of Arizona filed a motion requesting the district court to abstain on the ground that "the Arizona tax statutes here in question may be susceptible to an authoritative construction by the state courts in the pending state court action that would avoid or modify the Federal constitutional questions raised." The district court granted the motion, relying on the Supreme Court's decision in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and at the same time granted a consent temporary restraining order forbidding the state agencies to assess further taxes against Pinetop.

Although not required to do so, Pinetop and the Tribe then elected to submit their federal preemption claim to the Arizona courts along with the questions of state law. In May 1975, the Arizona Superior Court rejected all their claims, state and federal, and entered judgment for the state. The federal district court then dismissed the federal action sua sponte. In early 1976, however, upon the motion of Pinetop and the Tribe, the district court

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vacated the dismissal order and entered a consent preliminary injunction pending final outcome of the state proceedings. In 1978, the Arizona Court of Appeals affirmed the state trial court judgment, characterizing the Tribe's arguments as "pure sophistry." White Mountain Apache Tribe v. Bracker, 120 Ariz. 282, 290, 585 P.2d 891, 899 (Ct.App.1978), rev'd, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980).

After the Arizona Supreme Court declined review, the state returned to federal district court with a motion to quash the consent preliminary injunction and to dismiss the federal action. The district court denied the state's motion. The United States Supreme Court then reversed the Arizona Court of Appeals, holding that the state taxes were preempted because the comprehensive federal regulatory scheme governing the harvest and sale of tribal timber had occupied the field and because the state taxes would interfere with federal goals and policies. 448 U.S. at 151, 100 S.Ct. at 2587. Armed with a favorable state court judgment on their federal claims, Pinetop and the Tribe then returned to the district court seeking a declaratory judgment, a permanent injunction and attorney's fees. The district court granted all the relief sought, including attorney's fees of $206,012.07. The state appeals. We reverse.

II

We first address the question whether Pinetop and the Tribe have stated a claim under Sec. 1983 for which attorney's fees are available under Sec. 1988. Pinetop and the Tribe argue that a claim of preemption of the state's power to tax Pinetop's logging operations on the reservation constitutes a claim of deprivation of "rights, privileges, or immunities secured by the Constitution and laws" within the meaning of Sec. 1983. The Supreme Court decided in Bracker, supra, that the federal laws regulating the harvest and sale of tribal timber did preempt the Arizona tax statutes, reasoning that

Where ... the Federal Government has undertaken comprehensive regulation of the harvesting and sale of tribal timber, where a number of policies underlying the federal regulatory scheme are threatened by the taxes respondents seek to impose, and where respondents are unable to justify the taxes except in terms of a generalized interest in raising revenue, we believe that the proposed exercise of state authority is impermissible.

Bracker, 448 U.S. 136, 151, 100 S.Ct. 2578, 2587, 65 L.Ed.2d 665 (1980). Although the Court acknowledged that "traditional notions of Indian self-government ... provided an important 'backdrop' " for its analysis, 448 U.S. at 143, 100 S.Ct. at 2583, it explicitly "based [its decision] on the preemptive effect of the comprehensive federal regulatory scheme" governing the timber harvest. Id. at 151 n. 15, 100 S.Ct. at 2588 n. 15.

The question whether the Supremacy Clause (U.S. Const. art. VI cl. 2) may be used as a sword in bringing a Sec. 1983 action is, of course, different from that decided by the Supreme Court in Bracker --whether the Supremacy Clause may be invoked as a shield against the imposition of state taxes on tribal logging operations heavily regulated by the federal government. It is the former question that we must address.

Pinetop and the Tribe argue that because the federal laws that regulate timber operations on tribal lands are intended to benefit the Tribe, the laws may serve as the basis for a Sec. 1983 claim. That the Tribe benefits from the federal timber regulations, however, is not dispositive of the issue. In this case, Pinetop and the Tribe did not prevail in the Supreme Court on a theory that the state had violated any of the federal laws or regulations governing logging operations on tribal lands. Rather, the Supreme Court in Bracker reasoned that state taxes were preempted because the federal government had pervasively regulated tribal logging operations and because state taxation would interfere with

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the goals and purposes of the federal regulatory scheme.

Thus the question presented is whether the Tribe's preemption claim, based on federal occupation of a regulatory field and inconsistency of state action with federal goals and policies, will support a civil rights action under Sec. 1983.

A

The Supreme Court has never directly addressed the question whether the Supremacy Clause creates "rights, privileges or immunities" within the ambit of Sec. 1983. In Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), however, the Supreme Court did hold that the Supremacy Clause is not a substantive constitutional provision that creates rights within the meaning of 28 U.S.C. Sec. 1343(3). Id. at 612-15, 99 S.Ct. at 1913-15. ⁴ The Court noted, "even though that Clause is not a source of any federal rights, it does 'secure' federal rights by according them priority whenever they come in conflict with state law. In that sense all federal rights, whether created by treaty, by statute, or by regulation are 'secured' by the Supremacy Clause." Id. at 613, 99 S.Ct. at 1913-14. Under Chapman, therefore, the Supremacy Clause, standing alone, 'secures' federal rights only in the sense that it establishes federal-state priorities; it does not create individual rights, nor does it 'secure' such rights within the meaning of Sec. 1983.

The primary function of the Supremacy Clause is to define the relationship between state and federal law. It is essentially a power conferring provision, one that allocates authority between the national and state governments; thus, it is not a rights conferring provision that protects the individual against government intrusion. The distinction between the two categories of constitutional controls has been enunciated by Professor Choper:

When a litigant contends that the national government (usually the Congress, but occasionally the executive, either alone or in concert with the Senate) has engaged in activity beyond its delegated authority, or when it is alleged that an attempted state regulation intrudes into an area of exclusively national concern, the constitutional issue is wholly different from that posed by an assertion that certain government action abridges a personal liberty secured by the Constitution. The essence of a claim of the...