[00:00:00] Speaker 04: with American Car Rental Association versus Humphreys, number 251246, Mr. Schluter. [00:00:28] Speaker 02: Thank you, Your Honor, and good morning. [00:00:31] Speaker 02: You may have pleased the Court. [00:00:33] Speaker 02: My name is Dan Schluter on behalf of the Appellant American Car Rental Association. [00:00:39] Speaker 02: The issue in this case is whether Colorado's new congestion impact fee, which is imposed solely on rental transactions at a rate of $3 a day, is preempted at airport locations by a federal statute, 49 U.S.C. [00:00:56] Speaker 02: 116, sometimes called the Anti-Head Tax Act. [00:01:01] Speaker 02: The district court concluded that the fee was not preempted, but it did so based on a mistaken reading of the relevant statute. [00:01:08] Speaker 02: The proper interpretation of that statute is, of course, a de novo question reviewed by this court de novo. [00:01:15] Speaker 02: It's a question of law. [00:01:18] Speaker 02: Our argument is that the district court [00:01:23] Speaker 02: reading of the statute is inconsistent with the text of the statute. [00:01:26] Speaker 02: It's inconsistent with the purpose of the statute, and it creates a superfluity in the statute with an earlier amendment, which was enacted in 1994. [00:01:36] Speaker 02: But before sort of addressing those arguments, I think it would be helpful if I address up front [00:01:43] Speaker 02: The two, what we see is the two sort of concerns that motivated the district court's ruling, and it is a set out in its opinion. [00:01:54] Speaker 02: The district court was number one concerned that our interpretation would create favoritism for the airport. [00:02:01] Speaker 02: It would create an effective subsidy. [00:02:04] Speaker 02: That's the term that district court used for airport businesses. [00:02:07] Speaker 02: It would put them in a special exempt position. [00:02:10] Speaker 02: That's another term. [00:02:11] Speaker 02: that the district court used. [00:02:12] Speaker 02: And the reason it believed that is that it would exempt them from taxes that are applicable off the airport. [00:02:19] Speaker 02: After all, this rental fee is applicable both at airport locations and off airport locations. [00:02:25] Speaker 02: And the district court thought, well, we're only asking for it to be preempted at the airport locations. [00:02:30] Speaker 02: You're going to get a special exempt position. [00:02:35] Speaker 02: Respectfully. [00:02:37] Speaker 02: reflects a misunderstanding and really an incomplete picture of what this statute 4116, the anti-head tax, is all about. [00:02:47] Speaker 02: The problem that Congress was concerned about with was that there were airport dollars out there, and they were being siphoned off by state and local governments to be used for local projects, projects that benefit the state as a whole. [00:03:04] Speaker 02: And there's a long history of this, of imposing [00:03:08] Speaker 02: taxes specifically on rental cars to raise taxes to fund local sports stadiums, convention centers, lots of things like that. [00:03:18] Speaker 02: And the problem that Congress had before it was that airports used as a piggy bank to fund projects that benefit the state as a whole. [00:03:28] Speaker 02: So the statute here, and this is the important point, directly goes to the court's concern about favoritism. [00:03:35] Speaker 02: The statute doesn't say that states can't have [00:03:37] Speaker 02: taxes aimed exclusively at the airport. [00:03:40] Speaker 02: It doesn't say that you can't have taxes aimed exclusively at particular types of businesses. [00:03:46] Speaker 02: It imposes a use restriction, though, for those types of taxes. [00:03:50] Speaker 02: If you want to have a tax exclusive to the airport, which had been prohibited since 1994, you can have one, but it has to be utilized for airport purposes, the revenues do. [00:04:01] Speaker 04: Council, could you just clarify one point, though? [00:04:03] Speaker 04: It seems like the language you're drawing on right now is from [00:04:07] Speaker 04: subsection four when you say exclusively. [00:04:10] Speaker 04: But aren't we dealing with subsection five? [00:04:12] Speaker 02: We are. [00:04:13] Speaker 02: We are. [00:04:13] Speaker 02: But these two subsections, although they're enacted 20 years apart, they're designed for the same purpose. [00:04:20] Speaker 02: And they have the same language about utilized for airport or aeronautical purposes. [00:04:25] Speaker 02: So section four prohibits taxes exclusive to the airport unless utilized for airport purposes, and then [00:04:36] Speaker 02: Subsection 5 was enacted 24 years later by Congress in response to a very particular problem that happened as a result of subsection 4. [00:04:48] Speaker 02: Subsection 4 is limited in scope. [00:04:51] Speaker 02: It's limited to taxes that are exclusive to the airport. [00:04:55] Speaker 02: Well, state and local governments, they're smart people. [00:04:59] Speaker 02: They recognize that there's still a way to target airports. [00:05:04] Speaker 02: You don't have to single out exclusively the businesses there. [00:05:08] Speaker 02: All you have to do is target the types of commerce that happen at airports, lots of things like that. [00:05:15] Speaker 02: But rental cars are really the predominant example. [00:05:18] Speaker 02: If you impose a tax statewide, so not exclusive to the airport, on rental cars, that's going to hit transactions off the airport, but it's also going to hit [00:05:33] Speaker 02: transactions on the airport. [00:05:34] Speaker 02: And because 50% of rental car transactions happen at the airport, you're necessarily going to have a disproportionate effect if you target the tax in that way. [00:05:48] Speaker 02: And subsection five, like subsection four, doesn't prohibit those sorts of taxes. [00:05:54] Speaker 02: You can still have those taxes, but there is a safeguard put in there by Congress. [00:05:58] Speaker 02: And that safeguard is [00:06:00] Speaker 02: It's got to be utilized for airport and aeronautical purposes. [00:06:04] Speaker 02: And so the concern that the district court had is that we're seeking some sort of special tax exemption or favorable treatment vis-a-vis locations off the airport. [00:06:14] Speaker 02: That's not the case here. [00:06:18] Speaker 02: There is a restriction that is applicable solely at the airport, and that restriction is that these sort of taxes have to be utilized solely for airport purposes. [00:06:26] Speaker 02: And it's true that that restriction [00:06:28] Speaker 02: doesn't apply off the airport. [00:06:30] Speaker 02: So there is a distinction between the airport and off airport businesses. [00:06:34] Speaker 02: But that distinction goes to the very heart of why Congress was enacting 4116, which is to prevent states and local governments from targeting the airport with special taxes and using that revenue to fund sports stadiums. [00:06:51] Speaker 04: Did the district court consider this argument in relation to the concern that you're addressing? [00:06:57] Speaker 02: I think the district court was aware of it. [00:07:00] Speaker 02: But the district court, particularly because the district court, in its interpretation of the statute, said, look, you're creating favoritism toward the airport, I think that the district court didn't put sufficient emphasis that this is not an exemption that we're seeking. [00:07:16] Speaker 02: This is a condition on the way in which these funds can be used. [00:07:23] Speaker 02: What was the second concern? [00:07:24] Speaker 02: The second concern was that [00:07:26] Speaker 02: the statute would sweep too wide under our interpretation. [00:07:31] Speaker 02: And it is true that looking at the legislative history of the statute, which is completely clear, that the problem that Congress was legislating for were special industry taxes aimed at particular rental cars. [00:07:48] Speaker 02: And that the problem with these is there were over 100 enacted between 1990 and 2010. [00:07:54] Speaker 02: And there were a spate of these rental car taxes, and they were being used to fund projects that had nothing to do with the airport. [00:08:01] Speaker 02: Instead, they were being used to fund general projects that benefit the state as a whole. [00:08:07] Speaker 02: And so the district court's concern is, well, our reading of the statute, and it's true, it applies beyond just rental cars. [00:08:15] Speaker 02: Congress didn't just say rental cars taxes are prohibited at the airport. [00:08:20] Speaker 02: It says in subsection five that [00:08:22] Speaker 02: The taxes and fees that are prohibited are taxes on sales and services. [00:08:28] Speaker 02: Let me back up. [00:08:29] Speaker 02: The prohibition applies to taxes and fees unless they are generally imposed on sales and services. [00:08:39] Speaker 02: That is like a generally imposed sales tax, unless the tax is utilized solely for airport purposes. [00:08:51] Speaker 04: OK, just to maybe restate this. [00:08:53] Speaker 04: So your argument is the district court was concerned about the statute sweeping broadly, but properly interpreted, it does sweep broadly. [00:09:02] Speaker 02: That's exactly right, Your Honor. [00:09:03] Speaker 02: And it will. [00:09:05] Speaker 02: The district court gave a very useful example, the plastic bottle tax. [00:09:10] Speaker 02: And it's true that because that is not a tax that's generally imposed on sales and services, it would be within this statute scope. [00:09:20] Speaker 02: It would still, the state can still enact that sort of tax and apply it at the airport as long as the proceeds are still utilized at the airport. [00:09:29] Speaker 04: Could I just ask you your position on one thing the district court said, that subsection five, and I'm quoting, is potentially susceptible to two different interpretations. [00:09:43] Speaker 04: Do you agree with that? [00:09:44] Speaker 02: We don't, Your Honor. [00:09:46] Speaker 02: We think our interpretation flows inevitably [00:09:50] Speaker 02: from the text of the statute. [00:09:52] Speaker 04: Plainly, unambiguously, all of that? [00:09:56] Speaker 04: Thank you. [00:09:56] Speaker 04: All of that. [00:09:57] Speaker 04: Okay, so that's it. [00:09:58] Speaker 04: That's what it means, and it can't mean anything else. [00:10:01] Speaker 02: It can't be. [00:10:02] Speaker 02: Generally imposed on sales and services. [00:10:05] Speaker 02: And the district court's ruling, and our brief covers this in detail, the district court's ruling essentially ignores those words sales and services. [00:10:13] Speaker 03: Maybe you could [00:10:15] Speaker 03: actually start with the language? [00:10:17] Speaker 03: I mean, we're finally getting to the language here. [00:10:19] Speaker 03: So can you tell me just your case for reading that particular language? [00:10:26] Speaker 02: So generally imposed on sales and services. [00:10:30] Speaker 02: Sales and services are general terms. [00:10:33] Speaker 02: The statute tells us explicitly what the tax has to be generally imposed on. [00:10:37] Speaker 02: It's not generally imposed in a vacuum, which is how I think the district court read this, is that [00:10:42] Speaker 02: It's just a generally imposed restriction, and that could be a geographic restriction or that could be a subject matter restriction. [00:10:47] Speaker 02: And the court said, in its opinion, it could probably be read either way. [00:10:51] Speaker 02: But what that ruling disregards is that the statute tells us explicitly what the tax has to be generally imposed on for it to escape the statute's coverage. [00:11:02] Speaker 02: It's got to be generally imposed on sales and services. [00:11:05] Speaker 02: Those terms are very broad, and they are general terms. [00:11:10] Speaker 02: They're not limited geographically or to particular types of services. [00:11:13] Speaker 02: And that was the whole intent here, right? [00:11:15] Speaker 02: What Congress was concerned with was state and local governments enacting taxes targeted to specific types of commerce, which happened disproportionately at the airport. [00:11:26] Speaker 02: That was the workaround that state and local governments came up with in response to the 1994 statute. [00:11:32] Speaker 03: Well, again, I'm going to ask you to go back to the statute. [00:11:37] Speaker 02: Sure. [00:11:37] Speaker 03: So what meaning are you giving to sales and services? [00:11:43] Speaker 02: For example, a generally imposed sales tax. [00:11:46] Speaker 02: That is the quintessential example of a tax that is generally imposed on sales and services. [00:11:55] Speaker 02: A generally imposed sales tax doesn't even come within the statute. [00:11:58] Speaker 02: And the reason it doesn't [00:12:00] Speaker 02: is because Congress didn't want to earmark those funds for the airport. [00:12:03] Speaker 02: So a generally imposed sales tax on food and beverage or newspapers that you buy at Denver International, those are subject to sales tax. [00:12:13] Speaker 02: The state gets that sales tax. [00:12:14] Speaker 02: It's not subject to any restriction whatsoever. [00:12:18] Speaker 02: And so that is the very specific type of tax that is carved out from the statute's coverage under that generally imposed on sales and services. [00:12:27] Speaker 03: And how they understand why this is not. [00:12:30] Speaker 02: because this tax is imposed on a very specific, particular service. [00:12:35] Speaker 02: It is imposed on rental car transactions only. [00:12:39] Speaker 02: It is the very opposite of a tax that is generally imposed on sales and services. [00:12:46] Speaker 02: And it is exactly the type of tax that Congress said in the legislative history, the sponsor statements, very clear on this. [00:12:54] Speaker 02: This is the type of tax that's creating the problem because it's a tax, [00:12:59] Speaker 02: We're not taxing. [00:13:01] Speaker 02: There's a reason that this tax doesn't apply to flower shops, barbershops. [00:13:06] Speaker 02: This tax is, this fee is imposed solely on rental car transactions. [00:13:12] Speaker 02: And the reason it's imposed on rental car transactions is because 50% of those transactions take place at the airport. [00:13:18] Speaker 02: It is an effective way to export the tax burden to outsiders, to air travelers, and to the businesses that serve them. [00:13:27] Speaker 04: Well, if the state wanted to stick with the $3 fee, and you're saying, well, it has to apply to everything, do they have to put a $3 fee on everything to comply with the statute? [00:13:39] Speaker 02: There are two ways to comply with the statute. [00:13:41] Speaker 02: You can have a generally imposed tax on sales and services, or you can have a fee or a tax that is specific to the airport, could be even exclusive to the airport. [00:13:55] Speaker 02: But it has to be exclusively used [00:13:57] Speaker 02: at the airport. [00:13:59] Speaker 02: And the reason for that requirement, again, is because Congress was concerned with taxes being directed at the airport and then used to fund things that have nothing to do with the airport. [00:14:11] Speaker 04: Well, I'm going to come back to an issue we raised for supplemental briefing. [00:14:16] Speaker 04: If the fee is imposed on consumers rather than businesses, how does the statute even apply? [00:14:25] Speaker 02: It does apply, because the statutory requirement is that it be levied or collected on businesses. [00:14:33] Speaker 02: And it clearly is, because the state is- No, I didn't ask that. [00:14:36] Speaker 04: I said, assuming it's levied and collected from consumers, does the statute apply? [00:14:43] Speaker 02: If it were not levied and collected on the business, no, it would not. [00:14:48] Speaker 04: And why isn't this fee paid by the consumers? [00:14:52] Speaker 02: It's collected. [00:14:53] Speaker 04: If I go out to the airport and rent a car, I'm going to have that fee on my bill. [00:14:59] Speaker 04: I have to pay it, right? [00:15:00] Speaker 04: Just like a sales tax. [00:15:02] Speaker 02: Just like a sales tax. [00:15:03] Speaker 02: That's right, Your Honor. [00:15:04] Speaker 02: And it can be both, is the answer. [00:15:07] Speaker 02: It can be collected. [00:15:08] Speaker 02: The business collects it from the consumer, and the state [00:15:12] Speaker 02: collects it from the business. [00:15:13] Speaker 02: And this statute is directed, the prohibition is directed to what a state can do. [00:15:17] Speaker 02: It says no state can levy or collect taxes that are in the scope of the statute. [00:15:23] Speaker 04: Well, that's why I'm asking you. [00:15:25] Speaker 04: If it's levied on the consumer, then that isn't levied on a business. [00:15:31] Speaker 02: The state is not levying it on the consumer. [00:15:33] Speaker 02: The state is collecting. [00:15:36] Speaker 04: Well, again, [00:15:38] Speaker 04: I didn't say that. [00:15:40] Speaker 04: I said, if it is levied on a consumer, doesn't the statute by its very terms not apply? [00:15:47] Speaker 02: No, Your Honor, because it's levied or collected. [00:15:50] Speaker 02: And so if it's collected from a business, it applies. [00:15:54] Speaker 04: I just don't see how that, how's that any different from sales tax? [00:15:59] Speaker 02: It absolutely isn't different from sales tax. [00:16:01] Speaker 02: And that's why the carve out in this statute, the carve out for generally imposed sales and services tax, [00:16:06] Speaker 02: If this statute didn't apply to sales taxes, there would have been no reason to put that card out in there. [00:16:13] Speaker 04: Well, you argue that the tax is on the transaction. [00:16:15] Speaker 04: I'm not even sure what that means. [00:16:17] Speaker 04: But if the transaction is levied on the transaction, it's not levied on the business either. [00:16:24] Speaker 02: The tax under the specific language of the statute, the fee, is imposed on the transaction. [00:16:33] Speaker 02: The obligation to collect it is placed [00:16:36] Speaker 02: on the business. [00:16:37] Speaker 02: The state collects it from the business. [00:16:40] Speaker 02: And as a result, we come within the statute. [00:16:43] Speaker 02: The whole purpose of this statute was directed at transactional taxes, like the sales tax, like specific taxes. [00:16:50] Speaker 02: This provision wouldn't make any sense if it weren't applicable to those sorts of statutes. [00:16:55] Speaker 02: I'm sorry. [00:16:56] Speaker 02: I apologize, Your Honor. [00:16:57] Speaker 04: I didn't really say I was over time. [00:16:59] Speaker 04: I put you in the position to go over. [00:17:02] Speaker 04: But I appreciate your answer and will [00:17:05] Speaker 04: We'll hear from the other side. [00:17:06] Speaker 04: Thank you. [00:17:11] Speaker 04: Appreciate your argument. [00:17:11] Speaker 04: Thank you. [00:17:22] Speaker 00: Mr. Nelson. [00:17:22] Speaker 00: Good morning and may it please the court. [00:17:25] Speaker 00: My name is Pavan Nelson on behalf of the state officials. [00:17:29] Speaker 00: Colorado's congestion impact fee applies to everyone [00:17:33] Speaker 00: using a short-term rental vehicle on Colorado's roads. [00:17:37] Speaker 00: It is not a charge solely on out-of-state tourists, but rather it impacts Colorado residents to the same extent as tourists coming to this state. [00:17:46] Speaker 00: In-state resident, out-of-state resident, it doesn't matter. [00:17:48] Speaker 00: If you're driving a short-term rental vehicle on Colorado's roads, you pay the fee and you pay your share towards maintaining the surface transportation infrastructure. [00:17:58] Speaker 00: The fee here does not discriminate against interstate commerce in any way, [00:18:02] Speaker 00: And it is not preempted by subsection five, because one, it is not levied or collected upon any business. [00:18:09] Speaker 00: Two, the fee is generally opposed. [00:18:13] Speaker 00: And three, to the extent there is any doubt in the court's mind, the court should adopt the district court and the state official's interpretation, because it's the interpretation that disfavors preemption. [00:18:24] Speaker 04: For all those- We'll go back to your first point, and it really picks up on the last topic we were just discussing with Mr. Schluter. [00:18:32] Speaker 04: Given that the car rental companies must collect the fee, why doesn't that cause the fee to come under the language of the statute that uses the words levy or collect the tax fee or charge? [00:18:49] Speaker 00: For two reasons, Your Honor. [00:18:50] Speaker 00: I think first, looking at the text of subsection 5 itself, again, it's prohibiting levying or collecting upon the business itself. [00:18:58] Speaker 00: It's on the business. [00:18:59] Speaker 00: not from someone else and just collecting, remitting it to the state. [00:19:04] Speaker 00: And I think, Your Honor, you were correct in analogizing it to the sales tax, which uses the same process, where consumers pay the tax, the vendors hold it in trust and simply remit it. [00:19:16] Speaker 04: Well, your opposing counsel seems to think that helps his position. [00:19:20] Speaker 00: It doesn't, Your Honor, because I think the courts are pretty clear that the sales tax situation, [00:19:26] Speaker 00: legal incidents, that the tax itself falls on consumers itself and not on the business, not on the vendors. [00:19:31] Speaker 00: And so because the text of the statute places it, prohibits only the levier collection upon the business itself, it doesn't prohibit it from being collected by, imposed on consumers or other third parties. [00:19:43] Speaker 00: Now just note that it seems that ACRA seems to agree with that concept. [00:19:49] Speaker 00: You know, I noted in our supplemental brief that in their reply brief, [00:19:52] Speaker 00: They tried to analogize or distinguish away electric vehicle fees because they weren't imposed upon any business. [00:19:58] Speaker 00: They were imposed on someone else. [00:20:00] Speaker 00: And that's the reading where we're saying the court should adopt here. [00:20:04] Speaker 00: The second point on that point, Your Honor, is I think it's useful to look at other cases that have interpreted the similar language in the subsection four context. [00:20:15] Speaker 00: I'm talking about the Susquehanna case, the Burbank case, and even the Avis case out in New Jersey. [00:20:21] Speaker 00: In all those cases, they were interpreting the upon any business language. [00:20:25] Speaker 00: And a part of their logic, a part of their reasoning in those cases was the fee or the tax at issue in those cases were on the parking patrons. [00:20:32] Speaker 00: They were on the consumers. [00:20:33] Speaker 00: They were not on the business themselves. [00:20:35] Speaker 00: And so because of that, it wasn't preempted by subsection four. [00:20:39] Speaker 00: And Congress legislated subsection five against that backdrop using the same language that other courts have interpreted in that same way. [00:20:48] Speaker 00: So I think for those two reasons, Your Honor, [00:20:50] Speaker 00: Because the plain text of the statute says it's on the business itself, and how other courts have interpreted similar language, it leads to the conclusion that simply collecting a fee that is paid by someone else and remitting it to the state doesn't mean that that's collected upon the business itself. [00:21:09] Speaker 04: What if the car rental company, airport or otherwise, doesn't charge it to their renters? [00:21:21] Speaker 04: Who has to pay at that point? [00:21:24] Speaker 04: Well, that would be a violation of the statute. [00:21:26] Speaker 04: Oh, I know. [00:21:27] Speaker 04: But then if you want to enforce it, do you go after the car rental company? [00:21:32] Speaker 04: Do you go after the renters? [00:21:34] Speaker 04: How does that work? [00:21:35] Speaker 00: Yes. [00:21:35] Speaker 00: Just like the sales tax, they would be the vendor. [00:21:39] Speaker 00: They would be the car rental companies. [00:21:40] Speaker 00: That would be liable. [00:21:41] Speaker 04: So why would then that be satisfied upon the business? [00:21:46] Speaker 00: Because the tax itself wasn't placed upon the business to begin with. [00:21:53] Speaker 00: In your hypothetical, what they'd be going after, what the state would be getting, is the failure of the rental car companies to collect the fee from the consumers themselves, hold it in trust, and remit it. [00:22:06] Speaker 00: So again, when we're looking at this upon any business language, we need to look at where the legal incidence, where the fee actually falls. [00:22:15] Speaker 00: And I think that's the guiding question. [00:22:17] Speaker 00: And when you actually look at that, it comes out in the state's favor. [00:22:22] Speaker 00: It comes out in the district court's favor. [00:22:27] Speaker 00: So unless the court has any other questions on the upon any business language, well, I will back up. [00:22:32] Speaker 00: I just want to emphasize, too, that the fee here is explicitly a user fee. [00:22:40] Speaker 00: It's imposed on the users, and the users here [00:22:43] Speaker 00: consumers who are renting the vehicles and using Colorado's roads. [00:22:48] Speaker 00: And when a fee has to be imposed on a consumer, separately stated on their invoice, all the case law along legal incidents indicates that that indicates that the fee is on the consumer itself. [00:23:01] Speaker 00: So two points on this, and I'll move on to the generally imposed issue. [00:23:06] Speaker 00: The first point is the fee is imposed on the consumer. [00:23:09] Speaker 00: And second point is it's not preempted because subsection five [00:23:13] Speaker 00: does not preempt fees that are imposed on consumers. [00:23:16] Speaker 00: So unless the court has any other questions on that issue, I'd like to move over to the generally imposed issue. [00:23:22] Speaker 00: So even if the fee is upon the business, Akron's claim would still fail because the fee is generally imposed on rental car services in Colorado. [00:23:33] Speaker 00: And starting with the text, I think the district court said it correctly. [00:23:39] Speaker 00: You need to look at the specific provision [00:23:41] Speaker 00: and also within the full context of the statute itself. [00:23:45] Speaker 00: And in that case, generally imposed must be interpreted harmoniously with the term fee and the other provisions of the Anti-Head Tax Act. [00:23:54] Speaker 00: And a fee is something specific placed on a specific class for a specific purpose. [00:23:59] Speaker 00: They're targeted by definition. [00:24:01] Speaker 00: And generally imposed means something that's placed or required in a broad applies to every member of a class or kind of a group. [00:24:09] Speaker 00: So when you put those together, I think the best reading of Subsection 5 is that a fee is generally imposed by a state if it applies to every member subject to the fee throughout the jurisdiction. [00:24:25] Speaker 00: Basically, it's a reading that puts similar businesses on similar footing. [00:24:31] Speaker 03: So you're not adopting the geographic interpretation of the district court [00:24:37] Speaker 00: Well, yeah, broadly throughout the jurisdiction, broadly throughout the taxing jurisdiction. [00:24:40] Speaker 00: So yes, it applies to every member of the class throughout the jurisdiction. [00:24:47] Speaker 00: And there's lots of hypotheticals going around, but I'd just like to focus on the facts of this case. [00:24:53] Speaker 00: This fee is imposed on all consumers. [00:24:57] Speaker 00: It applies to me, the, and the guy behind the tree. [00:25:00] Speaker 00: It applies to tourists coming to the state and renting a car at the airport. [00:25:05] Speaker 00: It applies to a Coloradan renting a car while their car is in the shop. [00:25:09] Speaker 00: It applies to someone using a U-Haul to move from Denver to Grand Junction. [00:25:13] Speaker 00: It applies to everyone. [00:25:14] Speaker 00: And the undisputed facts in this case is that it falls equally on airports and non-airports, and that if you actually look at the numbers itself, more of the revenue comes from off-airport locations. [00:25:24] Speaker 00: So this is a fee that applies generally throughout the jurisdiction. [00:25:28] Speaker 00: The burden is shared generally across everyone. [00:25:33] Speaker 00: I think when you look at the text of the statute, it leads to the conclusion that the best reading of subsection five is one that puts businesses on equal footing. [00:25:42] Speaker 00: And that's the one that district court adopted, and that's the one that we adopted. [00:25:46] Speaker 04: Is it the best reading, or is it the only reading? [00:25:49] Speaker 00: I would say it's the only reading, Your Honor. [00:25:52] Speaker 00: But to the extent there is any doubt in the court's mind, it should adopt our reading, because it is the reading that disfavors preemption. [00:26:00] Speaker 04: What if we think that both readings are [00:26:03] Speaker 04: reasonable, that no one has the best reading, but they have reasonable readings. [00:26:08] Speaker 04: What happens to the preemption question then? [00:26:12] Speaker 00: Well, we would win. [00:26:14] Speaker 00: The state officials would still win, Your Honor. [00:26:16] Speaker 00: And let me explain why. [00:26:18] Speaker 00: It's because when a statute is susceptible to more than one plausible reading, courts should adopt the reading that disfavors preemption, especially in fields traditionally occupied by the states. [00:26:32] Speaker 00: And the fields we're talking about here are regulation of roads, regulation of intrastate economic activity, and revenue generation. [00:26:41] Speaker 00: And ACRA's interpretation of the statute would seriously hamper the states from doing all those activities. [00:26:50] Speaker 00: It would prevent targeted taxes in any way from implicating the airport. [00:26:54] Speaker 00: And so again, it would enter the field traditionally occupied by the states. [00:27:01] Speaker 00: If the court thinks both are good, it should still adopt the one our reading because it disfavors preemption of the states. [00:27:07] Speaker 03: Can I ask you then, just following up on that, why wouldn't you say this is an area that is traditionally being governed by Congress? [00:27:16] Speaker 03: They've legislated upon it so many times. [00:27:23] Speaker 03: So I mean, in other words, it's not one of those cases where Congress is silent, which we've [00:27:29] Speaker 03: had those cases before. [00:27:30] Speaker 03: That's not this case. [00:27:32] Speaker 03: Congress is legislated and legislated. [00:27:35] Speaker 03: So why wouldn't we say this is an area where they traditionally have regulated? [00:27:41] Speaker 03: Because it's interstate commerce. [00:27:43] Speaker 03: I mean, the title of it is interstate commerce. [00:27:46] Speaker 00: Because, Your Honor, I think when you actually look at how the Anti-Head Tax Act developed, Congress went in an incremental way addressing specific problems in a targeted way. [00:27:55] Speaker 00: It started off with no head taxes, no taxes on airlines. [00:28:01] Speaker 00: Then it moved to no discriminatory taxes on airline property. [00:28:06] Speaker 00: Then it did subsection four. [00:28:08] Speaker 00: And then it did subsection five. [00:28:09] Speaker 00: And I think the interpretation ACRA is proposing here would turn section five into a sledgehammer that would destroy all of the incremental progress Congress took in the Anti-Head Tax Act. [00:28:21] Speaker 00: Because under their interpretation, it would prohibit all but [00:28:25] Speaker 00: general sales taxes. [00:28:26] Speaker 00: It prevents states from imposing anything except general sales taxes. [00:28:30] Speaker 00: As we all know, states commonly put targeted taxes and fees on particular things for particular purposes. [00:28:36] Speaker 01: Doesn't your argument actually suggest that Congress is attempting to [00:28:45] Speaker 01: preempt state law, because all of these amendments and additional provisions arise out of states' clever ways to get around what they thought was a broad reaching statute. [00:29:01] Speaker 00: Yes, I would agree Congress was attempting something, Your Honor. [00:29:04] Speaker 00: But I think what Congress was attempting here was, and the district court talked a lot about this. [00:29:10] Speaker 00: We talked about it in our briefs. [00:29:12] Speaker 00: It was attempting to address a particular loophole [00:29:15] Speaker 00: from subsection four, which was the gerrymander districts. [00:29:21] Speaker 00: And I think Congress accomplished that with our reading, which makes sure that any fees or taxes just has to apply broadly through the jurisdiction. [00:29:30] Speaker 00: And so, yes, Congress was attempting to do something, but it wasn't totally preempting states from being able to impose targeted taxes throughout its jurisdiction. [00:29:40] Speaker 04: Have you found any case law interpreting [00:29:45] Speaker 04: subsection five, for that matter, subsection four, that shed any light on these issues? [00:29:53] Speaker 00: So unfortunately, this is a case of first impression, I think, for subsection five. [00:29:59] Speaker 00: There have been cases that interpreted subsection four. [00:30:03] Speaker 00: And I noted them. [00:30:05] Speaker 00: It was the Susquehanna case. [00:30:07] Speaker 00: It's the Burbank case. [00:30:09] Speaker 00: It's the Alamo, or no, Avis from New Jersey. [00:30:12] Speaker 00: Those were all interpreting subsection four, and I think [00:30:15] Speaker 00: their logic, their reasoning touches upon the upon any business issue. [00:30:20] Speaker 00: But because subsection four doesn't have the generally opposed, they don't really say anything about that. [00:30:26] Speaker 00: I'll walk that back. [00:30:29] Speaker 00: The Avis case does. [00:30:30] Speaker 00: They were talking about the legislative history that ACRA has raised from 2011. [00:30:37] Speaker 00: And again, my general point about that would be, [00:30:40] Speaker 00: It's illegitimate because it's a single floor statement from a legislator from 2011, seven years before this act was adopted. [00:30:49] Speaker 00: So it doesn't really shed any light into the meaning of subsection five. [00:30:55] Speaker 03: But I guess you're not willing to say the statute is plain so we shouldn't look at legislative history or you are, you think your interpretation is plain so we shouldn't look at that legislative history. [00:31:10] Speaker 00: I think our interpretation is based on the text and structure of the statute. [00:31:15] Speaker 00: But additionally, Your Honor, I think looking to legislative history from seven years before this act was actually passed isn't really legislative history. [00:31:24] Speaker 00: It's a single floor statement from a legislator years before this act was even passed, which is not an appropriate tool to use to determine statutory meaning. [00:31:34] Speaker 00: So unless the Court has any other questions, [00:31:38] Speaker 00: I would just end by asking the court to affirm the district court. [00:31:41] Speaker 00: And yes, thank you very much. [00:31:45] Speaker 04: Thank you, counsel. [00:31:46] Speaker 04: I think we've exhausted the appellant's time. [00:31:49] Speaker 04: Is that correct? [00:31:51] Speaker 04: So we will take this case as submitted. [00:31:54] Speaker 04: I appreciate the arguments.