By Anthony Broadman
As recently as last year, Big Tobacco appeared to have forged a formidable alliance with both the feds and states against Tribal tobacco. But when the ATF withdrew its position under the PACT Act, it pulled the lynchpin to that alliance. Now, and by no coincidence, at least RJ Reynolds has turned on the feds in connection with Tribal Tobacco.
Last week, Reynolds filed suit against the U.S. Department of Agriculture in the latest attack in Big Tobacco’s war on Tribal economic development. In the lawsuit, RJ Reynolds alleges that the USDA has failed to collect fees from tribal cigarette manufacturers, and in doing so has artificially inflated the amount that RJ Reynolds is required to pay.
Of course, Big Tobacco cannot pursue Tribal entities directly, so it has targeted federal agencies—here, the USDA through the Administrative Procedures Act (“APA”). RJ Reynolds alleges that the USDA refused to recalculate Reynolds’ share of fees because the evidence presented by the tobacco maker to the agency was insufficient. Suffice it to say, however, Big Tobacco is not letting the feds off that easy.
The suit raises numerous red flags for tribes. For one, tribes are indispensible parties who cannot be joined because of their sovereign status, warranting dismissal pursuant to Fed. R. Civ. Proc. 19. In addition, if the USDA intends to take any action in connection with including tribal tobacco in its calculation of Tobacco Trust Fund fees, it will have to consult with affected Tribes pursuant to its consultation policy or risk being sued by those Tribes under the APA.
In all, while RJ Reynolds may not succeed in prosecuting its lawsuit, the suit is another sign that Big Tobacco will keep the pressure on the federal government regarding tobacco in Indian Country.
Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, firstname.lastname@example.org, or via www.galandabroadman.com.