By COURTHOUSE NEWS SERVICE
(CN) — The federal government can collect $58 million in delinquent taxes from a Native American tribal member’s tobacco business, a Ninth Circuit panel ruled August 13, upholding a trial court’s decision.
King Mountain Tobacco, its owner Delbert Wheeler Sr. and the Yakama Nation sued the United States in 2011, claiming an 1855 treaty bars collection of excise taxes on tobacco products produced on the reservation.
Wheeler died in 2016, but the Yakama continued to dispute the taxes on tobacco products grown on tribal land.
King Mountain manufactures all of its tobacco products, and grows some of its own tobacco, on Yakama Nation trust lands in Washington state.
The long-running case has shuttled between the Western District of Washington and the Ninth Circuit on various procedural and substantive grounds.
Monday’s ruling by the Ninth Circuit stems from the trial court’s accidental failure to enter the amount of taxes in the final judgment and over a challenge of the basis for the assessments.
The three-judge appellate panel found that finished tobacco products – unlike unprocessed tobacco grown on the reservation – are not exempt from taxation under the General Allotment Act, affirming U.S. District Judge Rosanna Peterson’s decision.
The Treaty with the Yakamas of 1855 also does not exempt King Mountain from taxation, the panel found.
“We affirm our longstanding rule that Indians – like all citizens – are subject to federal taxation unless expressly exempted by a treaty or congressional statute,” U.S. Circuit Judge M. Margaret McKeown wrote in the unanimous opinion.
“In this case, neither the General Allotment Act nor the Treaty with the Yakamas expressly exempts King Mountain from the federal excise tax on manufactured tobacco products. King Mountain is therefore liable for payment of the tax and associated penalties and interest,” McKeown wrote.
The omission of the amount of taxes owed was rectified properly with an amended judgment to include the amount. The amended version should be considered the final judgment, the panel said.
Rounding out the panel were U.S. Circuit Judge Fernando Fernandez and Third Circuit Judge Julio Fuentes, sitting by designation.
HELENA, Mont. (AP) — National Park Service officials told Yellowstone's departing superintendent that he wasn't being forced out over a disagreement with Interior Secretary Ryan Zinke, but Dan Wenk said Thursday he still believes he is being punished by being forced to move up his retirement.
Wenk, who will step down as Yellowstone's top administrator on Sept. 29 after a 43-year park service career, spoke to reporters in a farewell telephone news conference that lasted nearly two hours as he fielded questions on controlling the park's bison population, managing grizzly bears and the rise in park visitors.
But the questions kept returning to Wenk's relationship with Interior Department leaders and the circumstances surrounding his imminent departure.
Wenk walked back his earlier comments that the Trump administration appeared to be forcing him out over a dispute with Zinke over how wild bison in the park should be managed.
“I've been told by the Washington office that is not the reason for my removal,'' Wenk said. “I do believe that, while we did disagree on (bison) numbers and habitat, I do believe we were working through that issue.''
But Wenk also repeated that “it still feels a little punitive'' that he was ordered to transfer to Washington, D.C., instead of being allowed to retire as Yellowstone's superintendent next March, which he said he'd been planning since 2016.
“Having it feel punitive and be punitive are two different things,'' he said. “It certainly felt punitive. I'm not saying it was.''
Wenk turned down the unwanted transfer, and he was told he would be gone from Yellowstone by August. He and the park service settled on the Sept. 29 departure date.
Wenk's retirement comes after an investigation into 35 personnel reassignments of senior executives proposed in the Interior Department under Zinke. Sixteen senior employees viewed their moves as punishment for their work on climate change, energy or conservation, but the Interior Department inspector general did not determine that anything illegal occurred.
The federal government's Senior Executive Service that Wenk is a part of is meant to be a mobile force capable of taking on different assignments that meet the agency's needs, and personnel moves are made to better serve taxpayers, Zinke spokeswoman Heather Swift said.
“Senior executives are the highest paid employees in the federal government and signed up for the SES knowing that they could be called upon to work in different positions at any time,'' Swift said.
Wenk acknowledged that he'd been in his position longer than any other senior staffer currently in the park service and that he could be moved.
“I'll accept that, that they wanted me to come back to Washington, D.C.,'' he said. “But I just didn't have that much of a career left in me and I didn't think it was fair for me to go back and to do that.''
Yellowstone, which became the world's first national park in 1872, covers 3,400 square miles (8,900 square kilometers), has a staff of 800 people and a budget of more than $60 million a year. Its geysers and wildlife attract more than 4 million people a year from around the world.
Wenk's seven years leading Yellowstone have been marked by an explosion in visitor numbers, tensions over wolf hunts and snowmobile use and a sexual harassment scandal on. Members of the park's maintenance department were disciplined last year after an investigation found female employees faced sexual harassment and other problems.
Wenk's replacement will be Cameron “Cam'' Sholly, the park service's Midwest regional director. Sholly will have to deal with managing the booming summer crowds, along with the bison management dispute and the possibility of grizzly hunts in Yellowstone's surrounding states of Wyoming, Montana and Idaho.
Park officials have been trying to decrease the bison population since it peaked at about 5,500 animals at the end of 2016. The population is expected to be about 4,500 by the end of this year, which Wenk said is a sustainable population.
Zinke favors a population target of 3,000 to 3,500 bison set previously by federal, state and tribal officials and contends that the higher numbers have led to overgrazing in the park.
Wenk said before he leaves he wants to complete the final agreement necessary to launch a new bison quarantine program. That program would allow the transfer of disease-free bison to the Fort Peck Indian Reservation with the ultimate goal of creating new bison herds around the nation.