FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           July 31, 2020
                         _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 LANDOWNERS UNITED ADVOCACY
 FOUNDATION, INC.,

       Plaintiff - Appellant,

 v.                                                         No. 19-1126
                                                (D.C. No. 1:16-CV-00603-PAB-SKC)
 LU CORDOVA,1 in her official capacity as                    (D. Colo.)
 Executive Director of the Colorado
 Department of Revenue; MARCIA
 WATERS, individually and in her official
 capacity as Director of Colorado Division
 of Real Estate; MARK WESTON,2
 individually; PETER ERICSON,3
 individually; MICHAEL S. HARTMAN,
 individually,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, McKAY**, and EID, Circuit Judges.

      1
         Pursuant to Federal Rule of Appellate Procedure 43, Executive Director Lu
Cordova was substituted for former Executive Director Michael Hartman in his
official capacity.
       2
         Mark Weston is no longer named in his official capacity because he retired as
the Program Manager for the Conservation Easement Program.
       3
         Peter Ericson is no longer named in his official capacity because he is no
longer a member of the Colorado Conservation Easement Oversight Commission.
       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       **
          The late Honorable Monroe G. McKay heard oral argument in this appeal.
Judge McKay died before the Order and Judgment in this case was finalized, and he
cast no vote. “The practice of this court permits the remaining two panel judges if in
                       _________________________________

      The plaintiff-appellee, Landowners United Advocacy Foundation (“LUAF”), is

a non-profit organization claiming that Colorado’s conservation easement tax credit

program violated the constitutional rights of its members. The district court

dismissed LUAF’s complaint for lack of subject matter jurisdiction, holding that

LUAF’s claims were barred by the Tax Injunction Act (“TIA”). We affirm.

                                         I.

      Colorado taxpayers may be entitled to a state income tax credit for donating a

conservation easement4 to a governmental entity or charitable organization. Colo.

Rev. Stat. § 39-22-522(2). To qualify for the tax credit, a taxpayer’s conservation

easement donation must meet strict statutory requirements and the conservation

easement must be accurately valued.

§ 170(h) of the

internal revenue code). Taxpayers who claim these tax credits are eligible to receive

a dollar-for-dollar reduction in Colorado income taxes owed.

      Colorado’s conservation easement tax credit program began in 2000. Since

then, multiple iterations of the statutory system have governed the program’s

administration. LUAF’s allegations relate solely to the pre-2014 statutory system.


agreement to act as a quorum in resolving the appeal.” United States v. Wiles, 

, 1516 n.* (10th Cir. 1997); see also 28 U.S.C. § 46(d) (noting that the
circuit court may adopt procedures permitting disposition of an appeal where a
remaining quorum of a panel agrees on the disposition). The remaining panel
members have acted as a quorum on this Order and Judgment.
       4
         A conservation easement is a permanent restriction that runs with the land for
the purpose of protecting and preserving the land in a predominantly natural, scenic,
or open condition. Colo. Rev. Stat. §§ 38-30.5-102, 38-30.5-103.
                                           2
          For conservation easements donated before 2014, there was no pre-approval

process. Colo. Rev. Stat. § 39-22-522(3.5)(a)(I). This meant that taxpayers would

have to donate their conservation easement without a guarantee that their tax credit

claim would be accepted. Consequently, some taxpayers donated their conservation

easement and later discovered that they were not entitled to a tax benefit.

          LUAF is a Colorado non-profit organization that seeks to protect landowners’

rights. Many of LUAF’s members have had their conservation easement tax credits

challenged under the pre-2014 tax-credit-approval procedures. On behalf of these

affected members, LUAF asserted the following four claims against Colorado state

officials: (1) deprivation of equal protection, (2) violation of due process, (3)

violation of the Fifth Amendment Takings Clause, and (4) a request for declaratory

relief.

          The district court dismissed LUAF’s complaint for lack of subject matter

jurisdiction, holding that LUAF’s claims were barred by the TIA. We conclude that

the district court lacked subject matter jurisdiction because of both the TIA and

principles of comity.

                                             II.

          We review de novo a district court’s dismissal for lack of subject matter

jurisdiction. Baca v. Colo. Dep’t of State, 

, 905 (10th Cir. 2019). “The

party invoking federal jurisdiction has the burden to establish that it is proper.”

in 1937, the TIA “expressly [] restrict[s] the jurisdiction

of the district courts of the United States over suits relating to the collection of State

                                              3
taxes.” Hibbs v. Winn, 

, 104 (2004) (quotations omitted). It provides

that federal “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.” 28 U.S.C. § 1341. The TIA prevents district

courts from providing both injunctive and declaratory relief. California v. Grace

Brethren Church, 

, 408 (1982).

       Additionally, the comity doctrine, which the Supreme Court has described as

“more embracive than the TIA, . . . restrains federal courts from entertaining claims

for relief that risk disrupting state tax administration.” Levin v. Commerce Energy,

Inc., 

, 417 (2010). Taxpayers bringing such claims for relief “must seek

protection of their federal rights by state remedies, provided . . . that those remedies

are plain, adequate, and complete.” Fair Assessment in Real Estate Ass’n, Inc. v.

McNary, 

, 116 (1981) (“[The TIA], and the decisions of this Court

which preceded it, reflect the fundamental principle of comity between federal courts

and state governments that is essential to ‘Our Federalism,’ particularly in the area of

state taxation.”).

                                           III.

       The district court’s dismissal of LUAF’s claims for lack of jurisdiction is

supported by both the TIA and principles of comity.

                                           A.

       To determine whether the TIA requires dismissal for lack of subject matter

jurisdiction, federal courts must first determine whether the plaintiff seeks to “enjoin,

                                            4
suspend or restrain the assessment, levy or collection” of any state tax. 

. If that is the relief sought, the court must determine whether the state’s

courts provide a “plain, speedy and efficient” remedy. Hill v. Kemp, 

,

1246 (10th Cir. 2007). If they do, the federal court must dismiss the claim for lack of

jurisdiction.

fall within the TIA’s jurisdictional bar.

      First, LUAF seeks declaratory and injunctive relief that would enjoin or

restrain Colorado’s “assessment, levy, or collection” of taxes. For example, LUAF

seeks to enjoin Colorado from challenging the validity of conservation easement tax

credits where the conservation easement donor did not meet certain statutory

requirements. LUAF also seeks to prevent Colorado from challenging the validity of

the appraisals used to support the tax credits. A court order enjoining these

challenges to tax credits would prevent Colorado from assessing and collecting

income taxes based on invalid or overvalued tax credit claims. This would lower the

amount of tax revenue that Colorado could collect.

      The declaratory relief sought by LUAF would have a similar effect. LUAF

seeks a declaration that Colorado has taken property without providing just

compensation because Colorado rejected claims for conservation easement tax

credits. Such a declaration would prevent Colorado from rejecting such claims in the

future—effectively restraining the assessment and collection of taxes that were

reduced by invalid conservation easement tax credits which should have been

rejected. In sum, the declaratory and injunctive relief sought by LUAF would



                                           5
prevent Colorado from collecting taxes that it would otherwise be entitled to.

Consequently, the relief sought falls within the TIA’s jurisdictional bar.

      LUAF’s arguments to the contrary are unavailing. LUAF contends that the

Supreme Court’s opinion in Hibbs v. Winn prevents the TIA from applying here. 

. In Hibbs, Arizona law authorized income-tax credits for payments made to

organizations that award scholarships and grants to children attending private

schools. 

. The plaintiffs brought an Establishment Clause

challenge seeking to prevent taxpayers from gaining the benefit of those tax credits.

challenge sought to increase state tax revenue by challenging a tax

credit that would have reduced taxes. Consequently, the Supreme Court held that the

TIA did not apply because the plaintiffs did not seek to enjoin the “assessment, levy,

or collection” of state taxes.

Unlike the plaintiffs in Hibbs who

sought to increase state tax revenue, LUAF seeks to reduce Colorado’s tax revenue

by restraining or enjoining the State’s ability to challenge conservation easement tax

credits. Thus, Hibbs does not apply to our case. 

(“Our case

. . . does not involve the somewhat unusual circumstance confronted by Hibbs of

citizens seeking to eliminate tax credits and ‘flog’ the State to collect more tax

revenues, but instead falls in the traditional heartland of TIA cases—an effort

expressly aimed at preventing the State from exercising its sovereign power to collect

certain revenues.”).

      LUAF further argues that Hibbs excuses our case from the TIA’s jurisdictional

barrier because LUAF is a third party that is not challenging its own tax liability.

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But this court has already rejected a similar argument in Hill v. 

. There, we declared that “nothing in the language of the TIA indicates that our

jurisdiction to hear challenges to state taxes can be turned like a spigot, off when

brought by taxpayers challenging their own liabilities and on when brought by third

parties challenging the liabilities of others.”

not clearly a

third party; it has standing in this case only because it brought claims on behalf of its

taxpayer members.

      Second, LUAF and its members have access to “a plain, speedy and efficient

remedy” in Colorado state courts. Before declining federal jurisdiction under the

TIA, federal courts must decide whether the state “affords a plain, speedy and

efficient remedy in its courts for those seeking to challenge its taxes.” 

. The state court remedy need only meet “certain minimal procedural

criteria.” Grace Brethren 

. The state meets these minimal

criteria as long as it “provides the taxpayer with a ‘full hearing and judicial

determination’ at which she may raise any and all constitutional objections to the

tax.”

provide a “plain, speedy and efficient remedy.” Under

Colorado’s statutory scheme, if a conservation easement tax credit is denied,

taxpayers can appeal the denial and receive an administrative hearing. Colo. Rev.

Stat. §§ 39-22-522(3.5)(a), 39-21-103(3). Taxpayers can further appeal a negative

ruling to a state district court for a de novo review

that

district court’s ruling is appealable to the Colorado Court of Appeals and ultimately

                                            7
the Colorado Supreme Court

thus provides an

adequate remedy under the TIA. See Grace Brethren 

–14

(holding an adequate remedy existed where plaintiffs could “file an action in

Superior Court . . . raising all arguments against the validity of the tax” and, if

unsuccessful, could appeal to higher state courts).

                                             B.

       Principles of comity also support the district court’s dismissal for lack of

jurisdiction. The comity doctrine prevents federal courts from entertaining § 1983

claims for relief that “risk disrupting state tax administration.” 

. Taxpayers bringing such claims for relief “must seek protection of their federal

rights by state remedies, provided . . . that those remedies are plain, adequate, and

complete.” 

.

       For the same reasons stated in the above TIA analysis, LUAF’s claims “risk

disrupting state tax administration,” and Colorado’s courts provide a “plain,

adequate, and complete” remedy. Accordingly, the comity doctrine also supports the

district court’s dismissal for lack of jurisdiction.

                                            C.

       LUAF argues that barring federal jurisdiction over its takings claim would

conflict with the Supreme Court’s decision in Knick v. Township of Scott,

Pennsylvania, 

(2019). In Knick, the Court overruled its prior

decision that property owners must “seek just compensation under state law in state

court before bringing a federal takings claim under § 1983.” 

2169 (overruling Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of

Johnson City, 

, 195 (1985)). Knick disagreed with Williamson County’s

view “that a property owner does not have a ripe federal takings claim until he has

unsuccessfully pursued an initial state law claim for just compensation.”

Instead, Knick concluded that a property owner has “an actionable Fifth Amendment

takings claim when the government takes his property without paying for it.”

Therefore, the property owner may bring his takings claim “in federal court

under § 1983 at that time.”

      Contrary to LUAF’s argument, Knick does not prevent the TIA and comity

principles from barring federal jurisdiction here. First, our decision does not

contradict Knick’s holding that a property owner may ordinarily bring a takings claim

in federal court “as soon as a government takes his property for public use without

paying for it.”

Instead, we hold only that the TIA and comity principles

bar federal jurisdiction over claims, like LUAF’s, that “risk disrupting state tax

administration” where an adequate state remedy exists. 

.

      Furthermore, our conclusion is not altered because a constitutional right is at

issue. The Supreme Court has held that both the TIA and the comity doctrine bar

federal jurisdiction over constitutional challenges to the administration of state tax

laws. 

(holding that comity barred federal jurisdiction where

plaintiffs brought a § 1983 claim alleging that Missouri tax laws had deprived them

of equal protection and due process of law); Grace Brethren 

(concluding “that the [TIA] also prohibits a district court from issuing a declaratory

                                            9
judgment holding state tax laws unconstitutional” where plaintiffs allege a violation

of the Establishment and Free Exercise Clauses of the First Amendment); 

(holding that comity required plaintiffs’ claim to proceed originally in

state court where plaintiffs alleged “discriminatory taxation in violation of the

Commerce and Equal Protection Clauses”).

      In McNary, the Court specifically weighed the jurisdictional barriers of comity

and the TIA against the Court’s precedent that “where § 1983 is involved, . . . a

litigant challenging the constitutionality of any state action may proceed directly to

federal court.” 

. Weighing these competing considerations,

McNary held that “the principle of comity controls” in a § 1983 challenge to the

administration of state tax laws.

were required to

“seek protection of their federal [constitutional] rights by state remedies.”

      Although none of these cases involved a takings claim like the one LUAF

asserts, this is not a meaningful distinction because Knick sought to put takings

claims on equal footing with “other constitutional claim[s] [] guaranteed a federal

forum under § 1983.” 

–70 (“overruling Williamson County

and restoring takings claims to the full-fledged constitutional status the Framers

envisioned when they included the Clause among the other protections in the Bill of

Rights”). Accordingly, we treat takings claims the same as other constitutional

claims as they relate to the TIA and comity. See Lawyer v. Hilton Head Pub. Serv.

Dist. No. 1, 

, 306 (4th Cir. 2000) (concluding that comity and the TIA



                                           10
barred plaintiffs’ takings claim from proceeding in federal court where the claim

challenged a state tax).

                                          IV.

      For these reasons, the TIA and comity principles prohibit the district court

from exercising jurisdiction over LUAF’s claims. We therefore AFFIRM the district

court’s dismissal for lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1).


                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




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