Tribal Officers Not Shielded From State Enforcement Action

Monday, November 10, 2025

Page 3

Ninth Circuit:

Tribal Officers Not Shielded From State Enforcement Action

Opinion Says California May Use Federal Statute to Enforce Cigarette Taxation Laws Against Officials in Charge of Tribe’s Trade, Qualified Immunity Is Not License to Avoid Rendering to Government What Is Owed

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals held Friday that tribal officials are not shielded by qualified immunity as to a state enforcement action seeking damages against them, in their personal capacities,

The State of California is asserting violations of cigarette taxation laws due to the tribal leaders’ approval, as governing board members of the tribe’s business council, of the sale of tobacco products that purportedly do not comply with U.S. regulations.

Saying that qualified immunity operates to protect government officials from liability for damages brought by an individual asserting that the officers have violated clearly established rights, the court opined that it does not similarly bar liability relating to a civil enforcement action brought by a sovereign state.

Circuit Judge Mark J. Bennett authored the opinion, joined in by Circuit Judges Anthony D. Johnstone and Milan D. Smith, which also holds that the officers are not entitled to the protection of tribal immunity as to claims against them in their official capacities relating to a request for injunctive relief under the federal Prevent All Cigarette Trafficking Act (“PACT Act”).

Bennett cited the 1908 U.S. Supreme Court decision in Ex parte Young and its progeny which stand for the proposition that U.S. courts may award prospective injunctive relief against state and tribal officials for violations of federal law unless the statutory scheme at stake displaces the availability of equitable relief by imposing its own detailed remedial landscape.

Finding no such displacement in the terms of the act, Bennett said that the defendants’ motion to dismiss the injunctive relief claims against them based on tribal immunity was properly denied.

Immunity Defenses

Asserting the immunity defenses were Phillip Del Rosa, Chairman of the federally recognized Alturas Indian Rancheria, Darren Rose, vice chairman of the tribe, and Wendy Del Rosa, who acted as Alturas’ secretary-treasurer.

The three defendants served as the exclusive members of the Alturas’ Business Committee, which has the authority to manage all the economic enterprises of the tribe, including its wholly-owned Azuma Corporation, which allegedly manufactures and distributes cigarettes in California directly to consumers, including non-Indian purchasers, as well as to retailers owned by other tribes that similarly market to a broad swath of buyers.

Attorney General Bonta filed suit against Azuma, the Del Rosas, and Rose in federal court in 2023, asserting that the defendants were distributing cigarettes without collecting the excise taxes and other payments required under the PACT Act and California law. In the pleading, the state sought to enjoin all parties from continued violations, as well as statutory penalties and damages against Phillip Del Rosa and Rose in their personal capacities.

After the defendants moved to dismiss the complaint based on assertions of immunity protections, then-Chief District Court Judge Kimberly J. Mueller of the Eastern District of California (now on senior status) granted the request as to all claims against Azuma on Jan. 24, 2024, finding it to be an arm of the tribe protected by sovereign immunity.

As to the individual defendants, she denied the request to dismiss the claims seeking damages against Phillip Del Rosa and Rose in their individual capacities and those for injunctive relief against all three as tribal officials. Friday’s opinion affirms Mueller’s order.

Claims for Damages

Addressing the assertion of qualified immunity by Phillip Del Rosa and Rose relating to California’s claims for damages, Bennett noted that the defendants had not pointed to any authority extending qualified immunity to tribal officers sued in their personal capacities for violations of federal and state laws. He declared:

“Modern qualified immunity emerged as a defense to suits brought by individuals to vindicate their rights. The doctrine shields government officials from ‘liability for civil damages insofar as their conduct [did] not violate clearly established statutory or constitutional rights….’....It is not a freestanding defense against all claims or actions.”

He continued:

“Here, California sues not to vindicate any individual’s rights, but to exercise its law-enforcement powers as a sovereign state. Defendants have not shown that qualified immunity applies to a State using a federal statute to enforce its taxation and regulatory obligations against tribal officials….Qualified immunity does not shield officers from all regulatory duties or obligations, and it does not shield Defendants from their obligations under California law in these circumstances.”

Saying that “[t]he Supreme Court has held that a tribal cigarette distributor that sells to non-tribal customers on the tribe’s reservation” or to other “tribal distributors” may be “required to remit taxes to the relevant State,” he remarked:

“Qualified immunity is a personal-damages defense for suits vindicating individual rights—not a license to ignore the law, nor a permanent immunity to avoid rendering to California what is California’s. Accordingly, Defendants cannot claim qualified immunity from the State’s…claims.”

Injunctive Relief

Turning to the request for injunctive relief, Bennett pointed out that § 378(c)(1)(A) of the PACT Act provides:

“A State, through its attorney general, or a local government or Indian tribe that levies a tax subject to section 376a(a)(3) of this title, through its chief law enforcement officer, may bring an action in a United States district court to prevent and restrain violations of this chapter by any person or to obtain any other appropriate relief from any person for violations of this chapter, including civil penalties, money damages, and injunctive or other equitable relief.”

Saying that “this statute does not limit the scope of ‘appropriate relief’ that qualified plaintiffs may obtain, and ‘injunctive or other equitable relief’ plainly includes injunctive relief under Ex parte Young,” he commented:

“The district court…conclude[ed] that Ex parte Young relief was available because ‘the relevant PACT Act provisions place no limits on available remedies or who may be sued. Instead, the Act provides for a broad cause of action.’ The district court did not err in so concluding.”

Bennett noted that Mueller issued a preliminary injunction in the case in June 2023, and the Ninth Circuit affirmed the order. However, he said in a footnote:

“Defendants apparently have not complied with the preliminary injunction. In February 2024, following a contempt motion by California, the district court found that California ‘provided evidence showing Azuma has continued to deliver cigarettes on its own behalf’ ‘to the same customers previously identified in the preliminary injunction record.’ Even after California filed for contempt, but before the district court ruled, Azuma ‘shipped an estimated additional 2.5 million cigarettes’ in violation of the preliminary injunction. In February 2025, California filed a notice of violation that ‘the distribution of Azuma cigarettes ha[d] continued uninterrupted,’ and that Azuma had distributed over 29 million cigarettes since February 2024.

The case is State of California v. Del Rosa, 24-698.