United States District Court, D. Alaska
CRUISE LINES INTERNATIONAL ASSOCIATION ALASKA, et al., Plaintiffs,
v.
THE CITY AND BOROUGH OF JUNEAU, ALASKA, et al., Defendants.
ORDER
H.
Russel Holland United States District Judge
Motion
to Dismiss
Defendants
move to dismiss plaintiffs' amended
complaint.[1] This motion is opposed[2] and plaintiffs
move for the court to take judicial notice of four exhibits
attached to their opposition.[3] Oral argument was requested and
has been heard on the motion to dismiss.
Background
Plaintiffs
are Cruise Lines International Association Alaska and Cruise
Lines International Association. Cruise Lines International
Association Alaska is a “not-for-profit
association” of twelve cruise lines which works
“to build positive relationships with communities and
government agencies in Alaska, to develop strong partnerships
with communities and businesses in Alaska, and to protect its
members' legal interests.”[4] The twelve cruise lines are
also members of Cruise Lines International Association, which
is a “not-for-profit organization ... that helps its
members succeed by advocating for the common interests of the
cruise community and protecting its members' legal
interests in the jurisdictions where they
operate.”[5]
Defendants
are the City and Borough of Juneau, Alaska and Rorie Watt, in
his official capacity as the City Manager. Juneau “is a
duly authorized Alaska Municipality....”[6]
Plaintiffs
allege that Juneau imposes two “entry fees” on
cruise ship passengers: 1) a $5.00 Marine Passenger Fee and
2) a $3.00 Port Development Fee.[7] Plaintiffs allege that the
Marine Passenger Fee was established by a voter initiative
and then adopted by the Municipality to codify the terms and
to provide for the administration and collection of the
fee.[8]
The Ordinance provides that “the purpose of the fee
[is] to address the costs to the City and Borough for
services and infrastructure rendered to cruise ships and
cruise ship passengers visiting the City and Borough.”
CBJ Code 69.20.005.[9] The Ordinance further provides that
“[t]he fees ... shall be placed in the marine passenger
fund” and that “[t]he proceeds of the fund shall
be appropriated in support of the marine passenger ship
industry....” CBJ Code 69.20.120.[10]
Plaintiffs
allege that the Port Development Fee was established by a
municipal resolution.[11] The resolution provides that the
“[p]roceeds of the fee shall be placed in the Port
Development Fund.”[12] The resolution further provides that
“[i]t is the intent of the Assembly that the proceeds
of the [Port Development] Fund shall be used for capital
improvements to the downtown waterfront for the provision of
service[s] to the cruise ship industry.”[13]
Plaintiffs
allege that “[t]he Entry Fees discriminate against
cruise travel over other modes of
transportation”[14] and that “[t]he Entry Fees
discriminate against large cruise ships.”[15] Plaintiffs
also allege that “[r]evenues generated by the Entry
Fees bear no reasonable relationship to the actual costs
incurred by [Juneau] to provide services to the cruise
vessels and the passengers paying the
fees.”[16] Plaintiffs allege that Juneau “has
spent the proceeds from the Entry Fees, or significant
portions thereof, on activities that are unrelated to and/or
have not provided any benefits to passengers and
vessels.”[17] By way of example, plaintiffs allege
that Juneau has allocated $10 million “to build a
man-made recreational island, elevated walkways, and
infrastructure to support a whale statute located nearly a
mile away from the cruise ship docks.”[18] Plaintiffs
further allege that Juneau
“has ... applied proceeds from the Entry Fees to a
variety of other projects and expenses that provide general
benefits to the community, but do not recoup costs incurred
by [Juneau] in providing services to vessels and
passengers.”[19] By way of example, plaintiffs allege
that Juneau has appropriated Entry Fees during the period of
Fiscal Year 2001 to Fiscal Year 2016 for the following:
(a) $22 million to fund ... general government operating
expenses;
(b) $11 million to fund projects within the [Juneau] roaded
service area, which include a number of projects that benefit
[Juneau] generally and/or provide no direct benefits to the
Cruise Lines' vessels and passengers;
(c) $2 million for ... bus services even though individual
passengers, including Cruise Lines passengers using [the] bus
services, already pay to use [the] bus services;
(d) $594, 000 for operations, maintenance, capital
improvements, and expansions of the Juneau International
Airport;
(e) $447, 000 for upgrades to a private dock that Cruise
Lines' vessels and passengers are not able to use; and
(f) Attorneys' fees for outside counsel engaged to
represent [Juneau] in matters related to this
litigation.[20]
Based
on these allegations, plaintiffs assert four claims for
relief: 1) a claim that the Entry Fees violate the Tonnage
Clause of the United States Constitution; 2) a claim that the
Entry Fees violate the Rivers and Harbors Appropriation Act
of 1884, as amended, 33 U.S.C. § 5; 3) a claim that the
Entry Fees violate the Commerce Clause of the United States
Constitution; and 4) a § 1983 equal protection claim.
Plaintiffs seek a declaration 1) that the Entry Fees
“violate the Tonnage Clause, the Supremacy Clause (by
virtue of their violation of 33 U.S.C. § 5), and the
Commerce Clause, ” 2) that “[d]efendants have
deprived CLIA and its Cruise Lines members of federal rights
under color of state law in violation of 42 U.S.C. §
1983;” 3) that “[d]efendants are legally barred
from imposing or collecting the Entry Fees to the extent that
revenues therefrom are unlawful, excessive or otherwise
impermissible;” and 4) that “[d]efendants are
legally barred from further use of Entry Fees revenue to fund
activities that are unrelated to and do not benefit the
Cruise Lines' vessels and passengers or that do not
reflect the direct cost of providing services to cruise
vessels.”[21] Plaintiffs also seek to enjoin
defendants 1) from “imposing or collecting the Entry
Fees to the extent that the amount thereof is excessive or
otherwise impermissible;” and 2) from “further
use of the revenues from the Entry Fees to fund activities
that are unrelated to and do not benefit the Cruise
Lines' vessels and passengers, or approximate their use
of [Juneau's] port.”[22]
Pursuant
to Rule 12(b)(1), Federal Rules of Civil Procedure,
defendants now move to dismiss plaintiffs' amended
complaint on the ground that the Tax Injunction Act deprives
the court of subject matter jurisdiction.
Discussion
“A
Rule 12(b)(1) jurisdictional attack may be facial or
factual.” Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004). Defendants are making a
facial attack here. “In a facial attack, the challenger
asserts that the allegations contained in a complaint are
insufficient on their face to invoke federal
jurisdiction.” Id. In considering a facial
challenge, the court is generally confined to the allegations
in the complaint and “assumes the truth of [the]
plaintiff's factual allegations and draws all reasonable
inferences in its favor.” Ecological Rights
Foundation v. Pacific Gas and Elec. Co., 803 F.Supp.2d
1056, 1059 (N.D. Cal. 2011). But, the court may also consider
“‘additional facts ... contained in materials of
which the court may take judicial notice'” without
converting a facial attack into a factual attack.
Id. (quoting Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994)). Plaintiff bears the burden of proving
that subject matter jurisdiction exists. Robinson v.
United States, 586 F.3d 683, 685 (9th Cir. 2009)).
Defendants
argue that the Tax Injunction Act (TIA) deprives the court of
subject matter jurisdiction of this case. “The TIA is a
limitation on the jurisdiction of federal courts.”
Bidart Bros. v. Calif. Apple Com'n, 73 F.3d 925,
928 (9th Cir. 1996). The TIA provides that “[t]he
district courts shall not enjoin, suspend or restrain the
assessment, levy or collection of any tax under State law
where a plain, speedy and efficient remedy may be had in the
courts of such State.”[23] 28 U.S.C. § 1341.
“[T]he statute has its roots in equity practice, in
principles of federalism, and in recognition of the
imperative need of a State to administer its own fiscal
operations.” Tully v. Griffin, Inc., 429 U.S.
68, 73 (1976). The TIA “bars both injunctive and
declaratory relief.” Air Polynesia, Inc. v.
Freitas, 742 F.2d 546, 547 (9th Cir. 1984). In order for
the TIA to divest the court of jurisdiction of
plaintiffs' claims, the Entry Fees must be
“taxes” for purposes of the TIA; an Alaska state
court must provide ...