Hold extended on law banning cigarettes from mail
By Dan Herbeck
News Staff Reporter
Updated: July 08, 2010, 12:57 am
U.S. District Judge Richard J. Arcara has given more than 140 Seneca Nation businesses an additional two-week reprieve from enforcement of a new federal law banning the mailing of cigarettes.
In a case in which billions of dollars of tax revenues and thousands of jobs are at stake, Arcara listened to a full day of legal debate Wednesday between attorneys for Seneca Nation cigarette sellers and lawyers for the federal government.
Late Wednesday afternoon, he reserved decision on legal questions involving the Prevent All Cigarette Trafficking Act, commonly known as the PACT Act.
Temporary restraining orders already in effect prevent the government from enforcing the law against more than 140 businesses owned by members of the Seneca Nation. Those orders were set to expire July 16, but Arcara extended them until July 30.
Before that date, Arcara said, he hopes to rule on the Seneca businesses' request for a preliminary injunction, preventing the government from enforcing the law against the Senecas until questions about its constitutionality have been decided.
"There's no telling how he's going to rule," said Rick Jemison, a Seneca businessman who is chairman of the Seneca Free Trade Association.
Lawyers and Seneca business people packed the courtroom for Wednesday's legal arguments.
The law prevents the U.S. Postal Service from delivering commercial cigarette shipments. It also requires companies that engage in interstate cigarette sales to make sure all federal, state and local taxes are paid in the state where the purchaser lives.
But Lisa A. Coppola, an attorney for one Seneca-owned business, argued that a seller could not possibly know about every state and local cigarette tax law in every state.
"If I'm a businessman, I've got to find out what laws regulate me, … and if I don't, that's my problem," responded Gerald C. Kell, a U.S. Justice Department lawyer arguing for the law. "Don't sell into [a] state if you can't figure out how to abide by that state's laws."
Coppola also claimed that the law discriminates against Native Americans, an allegation that Kell vehemently denied.
According to government lawyers, the law was enacted to prevent underage smokers from obtaining cigarettes through the mail and to correct a situation that has cost governments billions of dollars a year in uncollected taxes.
Robert Odawi Porter, legal counsel for the Seneca Nation, sat among Seneca business owners observing the proceedings. He said he feels the new law unfairly targets Senecas.
"It seems like the government is spending an awful lot of time and energy hunting down some Indians for selling cigarettes," Porter said. "I think it is important that we try to protect Seneca people who are just trying to save their businesses."
Federal government attorneys say the law was carefully drafted to adhere to the U.S. Constitution and to avoid infringing on the sovereign rights of any Indian tribe.
By Dan Herbeck
News Staff Reporter
Updated: July 08, 2010, 12:57 am
U.S. District Judge Richard J. Arcara has given more than 140 Seneca Nation businesses an additional two-week reprieve from enforcement of a new federal law banning the mailing of cigarettes.
In a case in which billions of dollars of tax revenues and thousands of jobs are at stake, Arcara listened to a full day of legal debate Wednesday between attorneys for Seneca Nation cigarette sellers and lawyers for the federal government.
Late Wednesday afternoon, he reserved decision on legal questions involving the Prevent All Cigarette Trafficking Act, commonly known as the PACT Act.
Temporary restraining orders already in effect prevent the government from enforcing the law against more than 140 businesses owned by members of the Seneca Nation. Those orders were set to expire July 16, but Arcara extended them until July 30.
Before that date, Arcara said, he hopes to rule on the Seneca businesses' request for a preliminary injunction, preventing the government from enforcing the law against the Senecas until questions about its constitutionality have been decided.
"There's no telling how he's going to rule," said Rick Jemison, a Seneca businessman who is chairman of the Seneca Free Trade Association.
Lawyers and Seneca business people packed the courtroom for Wednesday's legal arguments.
The law prevents the U.S. Postal Service from delivering commercial cigarette shipments. It also requires companies that engage in interstate cigarette sales to make sure all federal, state and local taxes are paid in the state where the purchaser lives.
But Lisa A. Coppola, an attorney for one Seneca-owned business, argued that a seller could not possibly know about every state and local cigarette tax law in every state.
"If I'm a businessman, I've got to find out what laws regulate me, … and if I don't, that's my problem," responded Gerald C. Kell, a U.S. Justice Department lawyer arguing for the law. "Don't sell into [a] state if you can't figure out how to abide by that state's laws."
Coppola also claimed that the law discriminates against Native Americans, an allegation that Kell vehemently denied.
According to government lawyers, the law was enacted to prevent underage smokers from obtaining cigarettes through the mail and to correct a situation that has cost governments billions of dollars a year in uncollected taxes.
Robert Odawi Porter, legal counsel for the Seneca Nation, sat among Seneca business owners observing the proceedings. He said he feels the new law unfairly targets Senecas.
"It seems like the government is spending an awful lot of time and energy hunting down some Indians for selling cigarettes," Porter said. "I think it is important that we try to protect Seneca people who are just trying to save their businesses."
Federal government attorneys say the law was carefully drafted to adhere to the U.S. Constitution and to avoid infringing on the sovereign rights of any Indian tribe.
And the beat goes on..
"There's no telling how he's going to rule" July 30-- and it's
still too early to know how the two sides of this issue will
interpret the new ruling.
The USPS would have to first put on hold its new policy of
no-tobacco shipments in order to reap the benefit of making
a few million dollars from the Indians before July 30.
Also, I understand the Senecas might only have 4 actual
post office locations they can actually ship from, and
no one knows yet which ones they will be! There must
be a few thousand shipments just waiting to roll...
And then there are the banned states to contend with.
Major screw-ups anyone?? Vegas won't even give odds..
The wrangling continues...