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Cayugas oppose appeal

By DAVID L. SHAW
dshaw@fltimes.com
Monday, September 21, 2009 1:07 PM CDT

SENECA FALLS — The Cayuga Indian Nation doesn’t feel that the Fourth Department Appellate Division Court should allow Seneca and Cayuga counties to appeal the court’s July 10 decision upholding the tribe’s practice of selling untaxed cigarettes.
The five-justice Appellate Court is deliberating whether to let lawyers for Seneca and Cayuga counties appeal to the state’s highest court, the Court of Appeals. A decision could be made Oct. 2, according to a court clerk.
The counties also are seeking to have the ruling stayed or delayed until the appeal is heard, effectively ending cigarette sales to non-Indians.
If the Fourth Department appellate justices say no, the counties can still appeal directly to the Court of Appeals to hear their case.
The Cayuga Nation’s response to the counties’ motion for permission to appeal includes an affidavit from B.J. Radford, chief operating officer of LakeSide Enterprises, the Cayuga entity that operates the two stores.
She said the Nov. 25, 2008, raid and seizure of thousands of cartons of untaxed cigarettes “has already caused the Nation great economic harm.’’
Noting that the Nation has operated the stores in Seneca Falls and Union Springs for five years, Radford said the profit from the stores — particularly from cigarette sales — has been, and remains, vital to the Nation’s economic welfare and its some 480 citizens.
Radford said after the raid and seizure, the stores had to stop selling cigarettes. They resumed Jan. 22 after a court ruling in their favor, but had to close the stores again less than a month later due to another court decision.
Radford “respectfully submits that the Nation has suffered enough at the hands of the counties such that the relief they have requested, a prohibition of the sale of unstamped cigarettes during the appeal process, would be purely punitive in nature.’’
Radford argued that it could be a year or more before a final decision is reached.
 “A prohibition in the Nation’s sale of cigarettes during this lengthy period would serve only one purpose: to have a devastating impact on the Nation.
“Such a result would be particularly egregious considering that the Nation has prevailed in the instant appeal,’’ she wrote.
Lee Alcott, lawyer for the tribe, said the counties’ motion to appeal “merely rehashes old arguments, ignores the reasoning of this court and presents no valid reason why this court should require the Court of Appeals to hear this case.’’

He accuses the counties of relying on “grandiose rhetoric, lacking in foundation,’’ to attempt to show that the court’s decision has inflicted grave harm upon statewide interests.
Alcott said the counties complain about impairing the state’s right to collect “hundreds of millions’’ of dollars in annual tax revenue that it could spend on programs that benefit its citizens.
“But it is telling that New York State has never participated or shown the slightest interest in these proceedings,’’ Alcott said.
‘’And the one reason that the state has not collected or spent these millions of dollars in annual tax revenue is that the state has made an entirely deliberate decision not to do so,’’ he said.
Alcott also disagreed with the counties’ arguments on state laws requiring the collection of the sales tax on cigarette sales and the issue of whether the convenience stores are on qualified reservations, exempt from taxation.
He said the state’s failure to print the required coupons for Indians prevents the sales tax collection.
Alcott also rejected claims that the ruling conflicts with rulings in other state and federal courts. He said a stay would impose a significant hardship on the Nation, agreeing with Radford that the Nation draws virtually all of its revenue from cigarette and gas sales.
“The court should deny the counties’ motion. Any decision to review this court’s careful reason and correct decision should be made by the Court of Appeals,’’ Alcott said.
 And he claims the Nation is correct on the merits of the case.
“Even if leave to appeal is granted, the Court of Appeals is likely to reach the same result, for the same reasons recently considered and addressed by this court.’’