A Miami federal judge dismissed the Seminole Tribe of Florida’s second lawsuit seeking relief from state utility taxes, ruling the issue was already decided.
U.S. District Judge Robert Scola ruled Thursday the new lawsuit’s claims didn’t differ enough from the earlier case, in which the U.S. Court of Appeals for the Eleventh Circuit ruled federal law did not pre-empt the state from taxing the tribe’s electricity use.
In the first case against the director of the Florida Department of Revenue, the tribe referred generally to electricity use on tribal lands, Scola wrote. This time around, the tribe specified 14 electricity uses, including law enforcement, fire rescue and road construction.
“Adding these particularized facts to its second complaint, the inclusion of which may or may not have salvaged its more generally-framed first complaint, does not change the reality that the tribe’s second complaint still arises out of the same nucleus of operative facts as the first,” Scola wrote.
Akerman attorney Glen Stankee of Fort Lauderdale, who represents the tribe, said the litigation might not be over.
“The tribe disagrees with the district court’s analysis and conclusion,” he said in an email. “It is currently considering its options, including its right to appeal this order.”
The Florida Department of Revenue did not respond to a request for comment.
The Seminole Tribe previously took two taxation battles to the U.S. Supreme Court, which declined to take them up. Thus, the Eleventh Circuit’s initial utility tax decision stood, along with its ruling in Florida’s favor in a dispute over fuel taxes.
The tribe argued in the utility tax dispute that state tax was preempted because electricity is used for essential government services, leasing land and gaming — activities whose regulation is preempted by federal law.
In the first case, the Eleventh Circuit found that by not providing enough specifics, the tribe failed to establish congressional intent to preempt the tax, instead “bundling up an assortment of unrelated federal and tribal interests tied together by the common thread of electricity use.”
Fixing that issue in the second complaint didn’t make the claims substantially different, Scola ruled.
“Where, as here, a plaintiff makes a strategic decision to bring a generalized claim first, and loses, claim preclusion prevents that plaintiff from then seeking another bite at the apple by simply identifying specific claims that fall clearly within the allegations in the first case,” the judge wrote.