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Washington State Department of Licensing v. Cougar Den, Inc.

Paid petition · Supreme Court of Washington, No. 92289-6 · judgment March 16, 2017

Decided · March 19, 2019

At-filing estimate: 3% cert probability

The Solicitor General's brief was filed May 15, 2018

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

An 1855 treaty between the United States and the Yakama Indian Nation provides members of the tribe "the right, in common with citizens of the United States, to travel upon all public highways." In a series of cases, the Ninth Circuit has rejected claims that this language exempts the Yakama from taxes or state fees on off-reservation commercial activities, holding instead that the language is limited to securing for tribal members a right to travel on public highways without paying a fee for that use or obtaining state approval. In this case, however, the Washington Supreme Court interpreted the treaty far more broadly, holding that it implicitly prohibits states from taxing "any trade, traveling, and importation" by the Yakama, even off-reservation, "that requires the use of public roads." The court therefore held that the treaty preempts Washington from imposing wholesale fuel taxes on Respondent Cougar Den, a Yakama-owned fuel distributor that imports millions of gallons of fuel into Washington annually for sale to the general public. The question presented is: Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.

Counsel of record

For petitioner
Noah Guzzo Purcell
Office of the Attorney General

For respondent
Adam G. Unikowsky
Jenner & Block LLP

Case

Conference history
Distributed for 3 conferences

Amicus briefs
4 cert-stage · 9 merits
(6 supporting pet./neither, 3 respondent)

Orders
Order list, October 2, 2017
Order list, June 25, 2018 · Certiorari granted
Order list, October 9, 2018

Argument & decision

Argued October 30, 2018 — Noah Purcell · Adam G. Unikowsky. Listen and read along · the Court’s audio

Decided March 19, 2019. Opinion by Breyer.

Proceedings

Apr 22 2019
JUDGMENT ISSUED.
Apr 22 2019
MANDATE ISSUED.
Mar 19 2019
Adjudged to be AFFIRMED. Breyer, J., announced the judgment of the Court and delivered an opinion, in which Sotomayor and Kagan, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Roberts, C. J., filed a dissenting opinion, in which Thomas, Alito, and Kavanaugh, JJ., joined. Kavanaugh, J., filed a dissenting opinion, in which Thomas, J., joined.
Oct 30 2018
Argued. For petitioner: Noah Purcell, Washington State Solicitor General, Olympia, Wash.; and Ann O'Connell, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondent: Adam G. Unikowsky, Washington, D. C.
Oct 18 2018
Record received from the Supreme Court of Washington is electronic and located on PACER.
Oct 17 2018
Reply of petitioner Washington State Department of Licensing filed. (Distributed)
Oct 09 2018
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. Justice Kavanaugh took no part in the consideration or decision of this motion.
Sep 24 2018
Brief amicus curiae of National Congress of American Indians filed. (Distributed)
Sep 24 2018
Brief amici curiae of Nez Perce Tribe, et al. filed. (Distributed)
Sep 24 2018
Brief amici curiae of Confederated Tribes and Band of the Yakama Nation filed. (Distributed)
Sep 21 2018
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Sep 17 2018
Brief of respondent Cougar Den, Inc. filed. (Distributed)
Sep 12 2018
CIRCULATED
Sep 12 2018
Brief amicus curiae of Sacred Ground Legal Services filed. (Distributed)
Sep 10 2018
Record requested from the Supreme Court of Washington.
Aug 24 2018
Motion to extend the time to file respondent's brief on the merits granted and the time is extended to and including September 17, 2018.
Aug 20 2018
SET FOR ARGUMENT on Tuesday, October 30, 2018
Aug 17 2018
Motion for an extension of time to file respondent's brief on the merits filed.
Aug 16 2018
Brief amicus curiae of United States filed.
Aug 16 2018
Brief amici curiae of Multistate Tax Commission and Federation of Tax Administrators filed.
Aug 16 2018
Brief amici curiae of The States of Idaho, et al. filed.
Aug 16 2018
Brief amici curiae of Public Health Organizations filed.
Aug 15 2018
Brief amici curiae of The Washington Oil Marketers Association and the Washington Association of Neighborhood Stores filed.
Aug 09 2018
Brief of petitioner Washington State Department of Licensing filed.
Aug 09 2018
Joint appendix filed.
Jun 25 2018
Petition GRANTED.
Jun 18 2018
DISTRIBUTED for Conference of 6/21/2018.
May 30 2018
Supplemental brief of respondent Cougar Den, Inc. filed. (Distributed)
May 29 2018
DISTRIBUTED for Conference of 6/14/2018.
May 15 2018
Brief amicus curiae of United States filed.
Oct 02 2017
The Solicitor General is invited to file a brief in this case expressing the views of the United States.
Aug 30 2017
DISTRIBUTED for Conference of 9/25/2017.
Aug 29 2017
Reply of petitioner Washington State Department of Licensing filed. (Distributed)
Aug 16 2017
Brief of respondent Cougar Den, Inc. in opposition filed.
Aug 16 2017
Brief amicus curiae of Confederated Tribes and Bands of the Yakama Nation filed.
Jul 17 2017
Brief amici curiae of The States of Idaho, et al. filed.
Jul 17 2017
Brief amici curiae of Washington Oil Marketers Association, et al. filed.
Jul 13 2017
Order extending time to file response to petition to and including August 16, 2017.
Jun 14 2017
Petition for a writ of certiorari filed. (Response due July 17, 2017)