Albrecht v. County of Riverside

Filed 8/13/21; Certified for Publication 9/9/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

LEONARD ALBRECHT et al.,

Plaintiffs and Appellants, E073926

v. (Super.Ct.No. PSC1501100)

COUNTY OF RIVERSIDE,
OPINION
Defendant and Respondent;

DESERT WATER AGENCY et al.,

Interveners and Respondents.

PATRICIA ABBEY et al.,

Plaintiffs and Appellants,

v. (Super.Ct.No. RIC1719093)

COUNTY OF RIVERSIDE,

Defendant and Respondent;

DESERT WATER AGENCY et al.,

Interveners and Respondents.

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 APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge.

Affirmed.

Faegre Drinker Biddle & Reath, Aaron Van Oort, Jerome A. Miranowski, Jane E.

Maschka and Joshua T. Peterson and for Plaintiffs and Appellants.

Gregory P. Priamos, County Counsel, Ronak Patel, Deputy County Counsel;

Perkins Coie, Jennifer A. MacLean and Benjamin S. Sharp for Defendant and

Respondent.

Best Best & Krieger, Roderick E. Walston and Miles Krieger for Intervenor and

Respondent Desert Water Agency.

Colantuono, Highsmith and Whatley, Michael G. Colantuono, Pamela K. Graham

and Liliane M. Wyckoff for Intervenor and Respondent Coachella Valley Water District.

I. INTRODUCTION

This appeal challenges the validity of a possessory interest tax imposed by the

County of Riverside (the county) upon lessees of federally owned land set aside for the

Agua Caliente Band of Cahuilla Indians (Agua Caliente tribe) or its members. A subset

of the more than 450 plaintiffs in this appeal also challenge the validity of voter-approved

taxes funding the Desert Water Agency, Coachella Valley Water District, Palm Springs

Unified School District, Palo Verde School District, and Desert Community College

District. A small minority of the plaintiffs claim to hold a possessory interest in land set

aside for the Colorado River Indian tribe (CRIT), but they argue the challenged taxes are

invalid for the same reasons asserted by the other plaintiffs.

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 Following a court trial based primarily upon stipulated facts, the trial court upheld

the validity of the challenged taxes and plaintiffs’ appeal, arguing the challenged taxes

are preempted by federal law. Specifically, plaintiffs contend: (1) the challenged taxes

are explicitly preempted under Title 25 United States Code section 5108 (section 5108),

originally enacted as Title 25 United States Code section 465, the Indian Reorganization

Act of 1934 (Pub.L. No. 73-383 (June 18, 1934) 48 Stat. 984; IRA); (2) the challenged

taxes are impliedly preempted under the interest balancing test articulated by the United

States Supreme Court in White Mountain Apache Tribe v. Bracker (1980) 448 U.S. 136

(Bracker); and (3) the challenged taxes are impliedly preempted under a separate

infringement test purportedly developed in a separate line of judicial authority stemming

from Williams v. Lee (1959) 358 U.S. 217 (Williams).

The question of whether the county may impose a possessory interest tax on

lessees of land set aside for the Agua Caliente tribe or its members has been the subject

of repeated litigation in both federal and state courts, and the validity of the county’s

possessory interest tax in this context has been repeatedly upheld. (See Palm Springs

Spa, Inc. v. County of Riverside (1971) 18 Cal.App.3d 372; Agua Caliente Band of

Mission Indians v. County of Riverside (9th Cir. 1971) 442 F.2d 1184; Agua Caliente

Band of Cahuilla Indians v. Riverside Cty. (9th Cir. 2019) 749 Fed.Appx. 650.) In fact,

during the pendency of this appeal, this court issued its decision in Herpel v. County of

Riverside (2020) 45 Cal.App.5th 96 (Herpel), again upholding the validity of the

county’s possessory interest tax under almost identical circumstances as those presented

here. Although plaintiffs claim that our decision in Herpel is not controlling because it

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did not consider many of the arguments presented here, we conclude that the facts and

arguments presented in this case do not materially differ from those already considered in

Herpel, and plaintiffs have not presented any persuasive reason for us to depart from that

recent decision.

II. FACTS AND PROCEDURAL HISTORY

A. Complaint and Procedural History

On March 6, 2015, 189 plaintiffs filed a complaint against the county for a tax

refund. Plaintiffs alleged that they each held a leasehold interest in land owned by the

United States and held in trust for the benefit of “Indian Tribes and individual Indians”

(Tribal Land) pursuant to section 5108;1 that federal law prohibits local taxation of such

land; and that, as a result, the possessory interest tax assessed and collected by the county

constitutes an illegal tax. In a second amended complaint, an additional 162 plaintiffs

were added. On October 10, 2017, a separate complaint was filed on behalf of 147

additional plaintiffs asserting identical claims, and the two actions were consolidated.

The parties stipulated, and the trial court ordered that trial in the consolidated

action be bifurcated into two phases, with the first phase addressing the legality of the

challenged taxes and the second phase determining the amount of any tax refunds, should

1 “Section 5108 was originally enacted as section 465 of title 25 of the United
States Code, part of the Indian Reorganization Act of 1934.” (Herpel, supra,
45 Cal.App.5th at p. 118.) Plaintiffs briefs continue to refer to this statutory provision as
“section 465,” but they acknowledge that the provision has subsequently been
reorganized as section 5108. Section 5108 was originally enacted and cited as Title 25
United States Code section 465.

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plaintiffs prevail in the first phase. In October 2018, a court trial was held on the validity

of the challenged taxes, with the evidence consisting primarily of stipulated facts.

B. Stipulated Facts at Trial

The Agua Caliente tribe and CRIT are federally recognized Indian tribes eligible

for funding and services from the Bureau of Indian Affairs. The Agua Caliente tribe

currently has over 400 members and its own elected governing body. Its reservation

encompasses approximately 31,000 acres of land, spread in a checkerboard pattern across

the Cities of Palm Springs, Cathedral City, and Rancho Mirage, as well as unincorporated

areas of Riverside County. Some of its territory is held in trust by the federal government

for the benefit of the tribe (tribal trust land), and some of the land is owned in trust for the

benefit of one or more members of the tribe (allotted land). Currently, individual

members lease out approximately 4,300 acres of allotted land under approximately

20,000 master leases, and a small portion of tribal trust land is also leased.

CRIT is primarily located in the Colorado River reservation in Arizona. In 1874,

an executive order purported to expand the Colorado River reservation into parts of

California. However, the legality of that expansion is disputed and, as a result, the

western boundary of the reservation is unsettled. In recognition of this ongoing dispute,

Congress has not authorized the Secretary of the Interior to review or approve CRIT

leases of land in California. Nine of the plaintiffs in this litigation purportedly lease land

from CRIT or its members.

Each plaintiff claims to lease one or more tracts of allotted land; claims that the

property tax bill received from the county pertaining to his or her leased allotted land

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includes a one percent possessory interest tax as well as various voter-approved taxes2

based upon the assessed value of the possessory interest in the allotted land; and seeks a

refund of the portion of taxes paid as a result of these possessory interest and voter-

approved taxes.

The possessory interest tax is a general revenue tax that provides funding to the

county and government agencies within the county. Revenues generated from the

possessory interest tax are comingled with revenues collected from other property taxes,

and the county cannot trace expenditures specifically to the revenues collected from the

possessory interest tax. Overall, the revenues collected from the possessory interest tax

assist in funding county services including education, fire, police, health and sanitation,

sheriffs, district attorneys and public defenders, public infrastructure maintenance, as

well as recreational and cultural services. All such services are available to all residents

or visitors to the county without distinction between the identity of the taxpayer or the

2 For purposes of this litigation, the voter-approved taxes at issue appear to
include taxes funding the Palm Springs Unified School District, Palo Verde Unified
School District, Desert Community College, Coachella Valley Water District, and the
Desert Water Agency. We note that with respect to the Palo Verde Unified School
District, plaintiffs have included this tax as part of their claims, but the county did not
stipulate that any plaintiff actually pays this tax.

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classification of land subject to the tax.3

With respect to the challenged voter-approved taxes, these taxes fund the Palm

Springs Unified School District, Palo Verde Unified School District, Desert Community

College District, Coachella Valley Water District, and the Desert Water Agency. Both

the Desert Water Agency and Coachella Valley Water District provide water-related

services to land within their defined boundaries, regardless of whether the land is allotted

land. The Palm Springs Unified School District, Palo Verde School District, and Desert

Community College District provide public education services to all residents within

their district boundaries, including those that reside on allotted land. The Agua Caliente

tribe does not provide any equivalent services to non-Indian lessees of allotted land.

A non-Indian lessee’s failure to pay the possessory interest tax results in a lien

against the lessee only, but it does not otherwise result in a lien or encumbrance upon the

owner of the allotted land. Nevertheless, the Agua Caliente tribe considers the

possessory interest tax to represent an economic burden. The Agua Caliente tribe has not

taken any steps to quantify the alleged economic burden created by the county’s

possessory interest tax and is not aware of any specific instance in which a potential

lessee of allotted land was dissuaded from leasing the land out of concern over taxation.

The Agua Caliente tribe receives no portion of the revenues collected from the county’s

3 For example, fire services are provided to all unincorporated areas of the county
including the portion of the Agua Caliente reservation located in unincorporated areas.
Persons who own, lease, or reside on land within the tribe’s reservation still have equal
access to public schools, the regional medical center, regional parks, and the public
cemetery. Flood control and vector control services are provided without regard to
whether a specific parcel of land is considered within the tribe’s reservation.

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possessory interest tax or the lease payments made pursuant to the leasing of allotted

land. While the Agua Caliente tribe has enacted its own possessory interest tax, it has

never attempted to assess or collect the tax.

There were no stipulated facts addressing the Agua Caliente tribe’s view of the

voter-approved taxes. Nor were there any stipulated facts pertaining to CRIT’s form of

governance, attempts to impose taxes or raise revenues by CRIT, CRIT’s provision of

services, or CRIT’s view of local taxes.

C. Expert Testimony Regarding Economic Harm to the Agua Caliente Tribe

In addition to the stipulated facts, plaintiffs called an expert in tribal government

and tribal economic development. Pursuant to a discovery order, the expert’s testimony

was limited to the economic impact of the possessory interest tax on the Agua Caliente

tribe. The expert opined that the possessory interest tax interferes with the Agua Caliente

tribe’s sovereignty and deprived it of valuable economic development tools. In the

expert’s view, the possessory interest tax should be considered a large tax because it is

reoccurring and imposed each year. The expert explained that, should the Agua Caliente

tribe impose its own possessory interest tax, the additional tax would decrease the

leasehold value of allotted land over time. As a result, the expert believed that the

county’s possessory interest tax deterred the Agua Caliente tribe from imposing its own

possessory interest tax and thereby deprived the Agua Caliente tribe of a source of

revenue to fund its own services.

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D. Statement of Decision and Judgment

The trial court issued a tentative decision concluding that the challenged taxes

were not expressly preempted by statute and the balance of interests under Bracker did

not support a finding of preemption under federal law. Plaintiffs did not request any

further clarification on these issues, but they requested a statement of decision based

upon the trial court’s failure to address a purported “infringement test” set forth in

Williams. In response, the trial court issued a statement of decision concluding that

plaintiffs had not met their burden to show how the balance of interests necessary to

support a finding of preemption would be any different under Williams. On October 9,

2019, judgment was entered in favor of the county.

III. DISCUSSION

A. Issues Presented and Standard of Review

On appeal, plaintiffs contend the judgment must be reversed because both the

possessory interest tax and the voter-approved taxes at issue are preempted by federal law

for three, independent reasons: (1) the taxes are expressly preempted under section 5108;

(2) the taxes are impliedly preempted under the interest balancing test articulated in

Bracker; and (3) the taxes are impliedly preempted under a purported infringement test

established in a line of judicial authorities following Williams, which plaintiffs contend

provides a separate framework for finding preemption without a balancing of interests.

“ ‘We apply a de novo standard of review . . . because federal preemption presents

a pure question of law [citation].’ [Citation.] However, ‘when conflicting inferences

may be drawn from undisputed facts, the reviewing court must accept the inferences

9
drawn by the trier of fact so long as it is reasonable.’ [Citation.] ‘The party who claims

that a state statute is preempted by federal law bears the burden of demonstrating

preemption.’ ” (Herpel, supra, 45 Cal.App.5th at p. 100.) Based upon the record before

us, we disagree that plaintiffs have established that the taxes are preempted, and we

affirm the judgment.

B. Express Preemption Under the Indian Reorganization Act (25 U.S.C. former § 465)

We first address plaintiffs’ argument that section 5108 expressly preempts any

state or local taxes on the possessory interests of leased allotted land or tribal trust land.

Section 5108 authorizes the Secretary of the Interior to acquire “any interest in lands,

water rights, or surface rights to lands . . . for the purpose of providing land for Indians,”

and further provides that “any lands or rights. . . acquired pursuant to this Act . . . shall be

exempt from State and local taxation.” (§ 5108.) It is undisputed that the tribal land at

issue in this case was set aside for the Agua Caliente tribe and CRIT decades prior to the

enactment of the IRA.4 As we explained in Herpel, under a plain reading of section

5108, land set aside or taken in trust through some means other than that provided in the

IRA—such as the land underlying plaintiffs’ leases here—are not “acquired pursuant to”

4 While CRIT voted to adopt the IRA in 1934, the nature of CRIT land located in
California remains unsettled. As the parties stipulated, the Colorado River reservation
was expanded into territory located in California by executive order in 1873 and 1874.
However, that executive order appears to conflict with an earlier act of Congress
expressly prohibiting the President from establishing more than four reservations in
California. The parties admit that the western boundary of the Colorado River
reservation remains unresolved, and the Secretary of the Interior does not exercise
authority over the alleged CRIT land located in California in the same manner as land
otherwise acquired under the IRA.

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the IRA and are not subject to the exemptions provided in section 5108. (Herpel, supra,

45 Cal.App.5th at pp. 118-122.)

Plaintiffs here do not claim that the law or the facts have changed since our

decision in Herpel but instead urge us to reexamine the issue because they have presented

a new legal argument that has yet to be considered. Specifically, plaintiffs point out that

the IRA includes a provision indefinitely extending any existing periods of trust until

Congress provides otherwise (25 U.S.C. § 5102); and, that in 1990, Congress enacted an

amendment providing that this provision would apply to all Indian tribes, all land held in

trust for Indians, and all land owned by Indians subject to restrictions on alienation (25

U.S.C. § 5126). Plaintiffs argue that this amendment represented the acquisition of a new

trust right and, under a broad reading of section 5108, “the acquisition of ‘interests’ and

‘rights’ under the IRA brings the ‘land’ within the statute, even if the land itself was not

acquired under the Act.” We find this argument unpersuasive.

First, even if plaintiffs’ proposed interpretation represents a plausible reading of

these statutes, that does not mean that such an interpretation is reasonable. It is true that

“[a]mbiguities in federal law have been construed generously in order to comport with

. . . traditional notions of sovereignty and with the federal policy of encouraging tribal

independence” and, as such, a statute need not contain an express statement of

preemption in order to preempt conflicting state laws. (Bracker, supra, 448 U.S. at

pp. 143-144.) “At the same time any applicable regulatory interest of the State must be

given weight . . . and ‘automatic exemptions “as a matter of constitutional law” ’ are

unusual.” (Bracker, at p. 144.) Thus, it is a rare case in which a statute should be

11
interpreted to provide automatic exemptions to state laws on constitutional grounds, and

courts should not adopt such an interpretation without some clear indication that

Congress intended the statute to have such preemptive effect.

Second, the express terms of the relevant statutes do not support the interpretation

urged by plaintiffs. In amending the IRA, Congress extended the provisions of

section 5102 to all Indian tribes and all lands held in trust. (25 U.S.C. § 5126.) However,

section 5102 by its very terms applies only to “existing periods of trust,” extending those

existing periods of trust indefinitely. (25 U.S.C. § 5102.) Given this language, the 1990

amendment cannot reasonably be interpreted as creating a new trust right. Even as

extended by section 5126, the express terms of section 5102 still require an “existing trust

right” to have any application.

Third, there is no evidence that Congress intended to enact a sweeping change in

policy by way of the amendment relied upon by plaintiffs. As the Supreme Court has

recognized, section 5108 represents “a mechanism for the acquisition of lands for tribal

communities that takes account of the interests of others with stakes in the area’s

governance and well-being. . . . The regulations implementing [section 5108] are

sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to

regain sovereign control over territory. Before approving an acquisition, the Secretary

must consider, among other things, the tribe’s need for additional land; ‘[t]he purposes

for which the land will be used’; ‘the impact on the State and its political subdivisions

resulting from the removal of the land from the tax rolls’; and ‘[j]urisdictional problems

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and potential conflicts of land use which may arise.’ ” (City of Sherrill v. Oneida Indian

Nation (2005) 544 U.S. 197, 220-221.)

If, as plaintiffs claim, the 1990 amendment constitutes the acquisition of a new

right within the meaning of section 5108, such an interpretation would represent a

dramatic expansion of the exemption contained in section 5108 without consideration of

the recognized “sensitive and complex interjurisdictional concerns” that the Secretary of

the Interior is otherwise required to balance before taking land into trust pursuant to that

statute. Such an interpretation essentially renders meaningless the language limiting

section 5108’s exemption to land “acquired pursuant to” that statute. There is no

indication that this amendment, which does not even mention section 5108, was intended

to enact such a drastic change to the established statutory scheme.

Finally, “[w]hile a later enacted statute . . . can sometimes operate to amend or

even repeal an earlier statutory provision . . . , ‘repeals by implication are not favored’

and will not be presumed unless the ‘intention of the legislature to repeal [is] clear and

manifest.’ [Citation.] We will not infer a statutory repeal ‘unless the later statute

“ ‘expressly contradict[s] the original act’ ” or such a construction “ ‘is absolutely

necessary [to give the later statute’s words] any meaning at all.’ ” ’ ” (Nat’l Ass’n of

Home Builders v. Defenders of Wildlife (2007) 551 U.S. 644, 662.) As already noted,

plaintiffs’ interpretation of the 1990 amendment to the IRA would effectively render the

“acquired pursuant to” language in section 5108 meaningless and disrupt the long

established statutory and regulatory scheme for acquiring land into trust within the

meaning of section 5108. We see no reason to adopt such an interpretation where the

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amendment identified by plaintiffs does not expressly contradict any provisions of

section 5108 and does not contain any express language indicating Congress intended to

repeal any provisions of section 5108 or alter the interpretation or implementation of that

section. Nor have plaintiffs identified any conflict in the ability to implement Title 25

United States Code section 5126, such that the traditional understanding of section 5108

must be reconsidered.5

In the absence of any explicit intent to depart from the interpretation or

implementation of section 5108, we will not interpret the 1990 amendments as an

expansion of section 5108’s provisions preempting state and local taxation, and we

decline to depart from our previous interpretation of section 5108 as expressed in Herpel.

C. Implied Preemption Under Bracker Balancing Test

Alternatively, plaintiffs claim that, even in the absence of express preemption, the

possessory interest tax and voter-approved taxes at issue in this case are preempted under

5 If anything, plaintiffs’ proposed interpretation of Title 25 United States Code
section 5126 cannot be reconciled with the currently recognized authority of the
Secretary of the Interior as expressed in Carcieri v. Salazar (2009) 555 U.S. 379. In
Carcieri, the Supreme Court concluded that the Secretary of the Interior was not
authorized to take land into trust under the authority provided in section 5108 on behalf
of the Narragansett Indian tribe because Congress’s intent was only to authorize taking
land into trust for the benefit of tribes under federal jurisdiction at the time of the IRA’s
enactment, and the Narragansett Indian tribe was not recognized by the federal
government until 1983. (Carcieri, at pp. 384, 395-396.) We observe that section 5126,
enacted as an amendment in 1990, applies to all Indian tribes. Thus, while the Supreme
Court did not pass on the precise question presented in this case, the Supreme Court’s
view in Carcieri that Congress did not intend to authorize the Secretary of the Interior to
take land into trust for the benefit of all Indian tribes under section 5108, cannot be
reconciled with plaintiffs’ view that Congress intended its 1990 amendment—which
applies to all Indian tribes—to constitute the acquisition of a new trust right within the
meaning of section 5108.

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federal law when the balance of competing federal, tribal, and state interests are

considered under the test articulated in Bracker. We disagree.

In Bracker, the Supreme Court explained that “there is no rigid rule by which to

resolve the question whether a particular state law may be applied to an Indian

reservation or to tribal members.” (Id. at p. 142.) Instead, when evaluating the state’s

regulation of non-Indians in relation to activities that affect tribal interests, a court must

“examine[] the language of the relevant federal treaties and statutes in terms of both the

broad policies that underlie them and the notions of sovereignty that have developed from

historical traditions of tribal independence. This inquiry is not dependent on mechanical

or absolute conceptions of state or tribal sovereignty, but has called for a particularized

inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry

designed to determine whether, in the specific context, the exercise of state authority

would violate federal law.” (Id. at pp. 144-145.)

In this case, we need not discuss the application of the Bracker test in detail. Our

recent decision in Herpel considered the balance of federal, tribal, and state interests with

respect to the validity of the same possessory interest tax as applied to allotted land and

tribal trust land held for the benefit of the Agua Caliente tribe. (Herpel, supra,

45 Cal.App.5th at pp. 108-116.)

As in Herpel, plaintiffs here argue the federal interest in preempting local and state

taxation is strong because federal law comprehensively regulates the leasing of Indian

land, citing to the extensive federal regulations governing the leasing of Tribal Land.

However, after consideration of the same regulations in Herpel, we did “not consider the

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nature of the federal government’s interest in prohibiting the possessory interest tax to

strongly support preemption.” (Herpel, supra, 45 Cal.App.5th at p. 111.) Further, to the

extent that this case includes consideration of the federal interest involved in leasing

CRIT land, such interest would be even more attenuated, since the parties stipulated that

Congress explicitly excluded CRIT land located in California from being subject to the

Secretary of the Interior’s authority to approve leases. Because plaintiffs cite to the same

regulatory scheme in support of the same arguments we already considered and rejected

in Herpel, we see no reason to depart from the conclusion we reached in that case with

respect to the federal government’s relatively weak interest in preemption of local taxes

at issue here.6

With respect to the tribal interests involved, plaintiffs here assert that the county’s

taxes create an economic disincentive preventing the tribes from imposing their own

taxes, thereby depriving the tribes of revenue. Plaintiffs acknowledge that this argument

is essentially identical to the one we considered and found unpersuasive in Herpel, but

they suggest that we should reconsider our analysis because they have provided

additional evidence in the form of an expert who estimated that the Agua Caliente tribe’s

imposition of its own possessory interest tax could result in the value of future leases on

6 As in Herpel, we note that our view that the nature of the federal government’s
interest in prohibiting the possessory interest tax as not being sufficiently strong as to
support preemption puts us in disagreement with courts that have determined otherwise.
(See Seminole Tribe of Florida v. Stranburg (11th Cir. 2015) 799 F.3d 1324, 1341;
Segundo v. Rancho Mirage (9th Cir. 1987) 813 F.2d 1387, 1392; Agua Caliente Band of
Cahuilla Indians v. Riverside Cty., (C.D. Cal., June 15, 2017, No. ED CV 14-0007-DMG
(DTBx)) 2017 U.S. Dist. Lexis 92592 at p. *35, affd. mem., supra, 749 Fed.Appx. 650.)

16
allotted land to fall by over 40 percent, making it practically impossible for the tribe to

impose its own possessory interest tax.7 However, even accepting this testimony at face

value,8 such evidence is not sufficient to compel a conclusion different than the one we

reached in Herpel.

As we explained in Herpel, “the fact that marginal demand for leases on Allotted

Land or Tribal Trust Land could go down if the Tribe also collected its own possessory

interest tax alone is not enough to show harm.” (Herpel, supra, 45 Cal.App.5th at

p. 113.) Thus, our decision in Herpel already assumed that a separate tax imposed by the

tribal authority would lead to a diminution in the value of leases but nevertheless

concluded that the state’s interest, when compared to that of the tribal interest involved,

did not warrant a finding of preemption. The fact that plaintiffs here have presented an

expert’s estimate purporting to quantify that diminution in value does not add anything

significant to our previous analysis.

7 We point out that this argument must necessarily be limited to the plaintiffs
leasing allotted land or tribal trust land held by the Agua Caliente tribe, as plaintiffs
expert failed to include any discussion of the impact of any taxes on CRIT in his report
and was precluded from offering any opinions pertaining to CRIT at trial. Further, unlike
the stipulated facts pertaining to the Agua Caliente tribe regarding its decision to hold its
own possessory tax in abeyance, there is no similar evidence in the record regarding
CRIT or its attempts to impose taxes on any of the alleged CRIT land at issue.

8 We note that the actual diminution in value of future leases is uncertain, as
plaintiffs’ expert admitted on cross-examination that he did nothing to assess whether the
lease values would decrease as a result of the loss of any specific services currently
provided by the county or potentially increase as the result of any additional services the
Agua Caliente tribe might provide to lessees in exchange for imposing its own possessory
interest tax.

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 Finally, nothing in this case suggests that our view of the state interest in

upholding the county’s possessory interest tax, as well as the voter-approved taxes,

should be any different from that expressed in Herpel. In Herpel, supra, 45 Cal.App.5th

96, we concluded that the state’s interest in imposing the possessory interest tax was

strong because the tax was directly connected to the provision of numerous services that

were provided by the county to non-Indian lessees of allotted land or tribal trust land,

such as education, fire, police, health and sanitation, road maintenance, and flood control.

(Id. at pp. 114-115.) Thus, unlike other cases in which the state’s interest was minimal,

the county’s possessory interest tax represents a situation “ ‘in which the State seeks to

assess taxes in return for governmental functions it performs for those on whom the taxes

fall.’ ” (Id. at p. 116.) The undisputed facts in this case are no different than those

presented in Herpel with respect to the types of services funded by the possessory interest

tax, the nature of the services provided by the county as compared to those provided by

the tribes, and the availability of services to all persons residing within the county

regardless of whether they reside on leased allotted land or tribal trust land.

Our view of the state interest with respect to the possessory interest tax expressed

in Herpel would apply equally to the voter-approved taxes in this case, since the parties

stipulated these taxes fund specific governmental entities providing specific

governmental services available to all residents within the entities’ geographic

boundaries, regardless of whether the recipient of services is a lessee of allotted land or

tribal trust land. Thus, the state interest with respect to the voter-approved taxes

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challenged in this case is no different than that found sufficient to uphold the tax in

Herpel.

Plaintiffs argue that the availability of intergovernmental agreements is a

preferable alternative to the imposition of the challenged taxes. However, we do not

believe the record in this case is sufficient for us to consider this in the context of the

balancing of interests required under Bracker. While the evidence shows the Agua

Caliente tribe has successfully entered into intergovernmental agreements in other

contexts, there was no evidence to suggest that it could successfully do so—or even had

any desire to do so—with respect to the services funded by the possessory interest and

voter-approved taxes in this case. Nor was there any evidence regarding the practical

feasibility or financial impact of such agreements given the checkerboard, interspersed

nature of the Agua Caliente tribe’s reservation within the county.

Ultimately, our role in conducting an interest balancing test is to determine

whether the state has identified a legitimate interest in exercising the challenged authority

and, if so, the relative strength or weakness of such interest when compared to the

competing federal and tribal interests involved. The fact that the state might be able to

address the same interests through alternative means in the absence of these taxes does

not reduce the legitimacy of the interests identified in this case or the strength of such

interests when compared with relatively weaker federal or tribal interests identified by

plaintiffs. We therefore disagree that the taxes challenged in this case are impliedly

preempted under the interest balancing test articulated in Bracker.

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D. Implied Preemption for Infringement on Tribal Sovereignty

Finally, plaintiffs argue that separate and distinct from the preemption analysis

under Bracker, the taxes at issue here “strike so deeply at the heart of Indian

independence and self-governance that it is preempted for that reason alone, without any

balancing required,” citing principally to Williams, supra, 358 U.S. 217, in support of this

argument. We disagree that Williams provides an alternative framework for finding

federal preemption in this case.

In Williams, the Supreme Court concluded that principles of federal preemption

prohibited a state court’s exercise of jurisdiction over civil suits arising from transactions

that occur within tribal territory and involve members of a tribe. (Id., supra, 358 U.S. at

pp. 218, 223.) However, since Williams, numerous courts have concluded that the

imposition of a tax does not necessarily infringe on tribal sovereignty in a manner that

warrants a finding of preemption, including the Supreme Court (Wash. v. Confederated

Tribes of Colville Indian Reservation (1980) 447 U.S. 134, 156 [A state “does not

infringe the right of reservation Indians to ‘make their own laws and be ruled by them,’ ”

within the meaning of Williams “merely because the result of imposing its taxes will be

to deprive the Tribes of revenues.”]); the United States Court of Appeals for the Ninth

Circuit (Agua Caliente Band of Mission Indians v. Riverside County, supra, 442 F.2d

1184 [possessory interest tax not preempted by federal law]); and this court (Palm

Springs Spa, Inc. v. County of Riverside, supra, 18 Cal.App.3d 372 [same]) and (Herpel,

supra, 45 Cal.App.5th 96 [same].) Thus, we reject any suggestion that the imposition of

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a tax, in and of itself, can represent such an infringement to tribal sovereignty that federal

preemption is required absent a balance of competing interests.

Further, we note that the Supreme Court has strongly suggested the argument

plaintiffs advance here is not tenable. In Arizona Dep’t. of Revenue v. Blaze Constr. Co.

(1999) 526 U.S. 32, the high court expressed the belief that its precedents “squarely

foreclose” any argument that imposition of a state tax “infringes on [a tribe’s] right to

make [its] own decisions and be governed by them and that this is sufficient, by itself, to

preclude application” of a state tax under Williams. (Id. at p. 37, fn. 2.) More recently,

the Supreme Court has cited Williams as one of “the cases identified in Bracker as

supportive of the balancing test.” (See Wagnon v. Prairie Band Potawatomi Nation

(2005) 546 U.S. 95, 111.) These authorities strongly suggest that the Supreme Court

does not view Williams or its progeny as an alternative framework for finding preemption

of local or state taxes absent a balancing of interests.

As we have already concluded, the balancing of interests under Bracker supports

upholding the validity of the taxes challenged in this appeal. We believe that the question

of whether such taxes are impliedly preempted under federal law is properly resolved by

a balancing of interests as articulated in Bracker, and we are not persuaded that a separate

infringement test that does not require a balancing of interests can be properly applied in

this case. As we found in Herpel, the balance of interests does not support a finding of

federal preemption, and the trial court in this case did not err when it reached the same

conclusion.

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 IV. DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

FIELDS
J.
We concur:

McKINSTER
Acting P. J.

MILLER
J.

22
Filed 9/9/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORDER

LEONARD ALBRECHT et al., E073926
Plaintiffs and Appellants,
(Super.Ct.No. PSC1501100 &
v. RIC1719093)

COUNTY OF RIVERSIDE,
Defendant and Respondent;
The County of Riverside
DESERT WATER AGENCY, et al.,
Interveners and Respondents.
______________________________________
PATRICIA ABBEY, et al.,
Plaintiffs and Appellants,

v.

COUNTY OF RIVERSIDE,
Defendant and Respondent;

DESERT WATER AGENCY, et al.,
Interveners and Respondents.
______________________________________

THE COURT

The request for publication of the nonpublished opinion filed in the above matter
September 1, 2021, is GRANTED. The opinion meets the standards for publication as specified
in California Rules of Court, rule 8.1105(c)(1), (4), (6), and (7).

1
 IT IS SO ORDERED that said opinion filed August 13, 2021, be certified for publication
pursuant to California Rules of Court, rule 8.1105(b).

FIELDS
J.
We concur:

McKINSTER
Acting P. J.

MILLER
J.

2