UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ LANDOWNERS UNITED ADVOCACY FOUNDATION, INC., Plaintiff - Appellant,

v. LU CORDOVA, 1 in her official capacity as 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; MICH AEL S. HARTMAN, individually, Defendants - Appellees. No. 19-1126 (D.C. No. 1:16-CV -00603-PAB-SKC) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

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

1 Pursuant to Federal Rule of Appella te Procedure 43, Executive Director Lu Cordova was substituted for former Execu tive Director Michael Hartman in his official capacity. 2 Mark Weston is no longer named in his of ficial capacity because he retired as the Program Manager for the C onservation Easement Program. 3 Peter Ericson is no longer named in his official capacity because he is no longer a member of the Colorado Conser vation Easement Oversight Commission.
* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt 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 ca se was finalized, and he cast no vote. “The practice of this court permits the remain ing two panel judges if in FILED United States Court of Appeals Tenth Circuit 

### July 31, 2020 Christopher M. Wolpert Clerk of Court2 ________________ _________________ The plaintiff-appellee, Landowners Unit ed Advocacy Foundation (“LUAF”), is a non-profit organization claiming that Co lorado’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 In junction Act (“TIA”). We affirm. I. Colorado taxpayers may be entitled to a state income tax credit for donating a conservation easement 4 to a governmental entity or ch aritable organization. Colo. Rev. Stat. § 39-22-522(2). To qualify fo r the tax credit, a ta xpayer’s conservation easement donation must meet strict statutory requireme nts and the conservation easement must be ac curately valued. Id. (incorporating 26 U.S.C. § 170(h) of the internal revenue code). Taxpa yers who claim these tax cred its are eligible to receive a dollar-for-dollar reduction in Colorado income taxes owed. Colorado’s conservation easement tax cr edit 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 , 106 F.3d 1516, 1516 n.* (10th Cir. 1997); see also 28 U.S.C. § 46(d) (noting that the circuit court may adopt procedures perm itting disposition of an appeal where a remaining quorum of a pa nel agrees on the dispositi on). 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, 38-30.5-103.3 For conservation easements donated be fore 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 easemen t without a guarantee that their tax credit claim would be accepted. Consequently, some taxpayers donate d their conservation easement and later discovered that they were not entitled to a tax benefit. LUAF is a Colorado non-pr ofit organization that seek s to protect landowners’ rights. Many of LUAF’s members have ha d their conservation easement tax credits challenged under the pre-2014 tax-credit-approv al procedures. On behalf of these affected members, LUAF asse rted the following four cl aims against Colorado state officials: (1) deprivation of equal protect ion, (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 co mplaint for lack of subject matter jurisdiction, holding that LUAF ’s claims were barred by th e 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 dist rict court’s dismissal fo r lack of subject matter jurisdiction. Baca v. Colo. Dep’t of State , 935 F.3d 887, 905 (1 0th Cir. 2019). “The party invoking federal jurisdic tion has the burden to estab lish that it is proper.” Id. Enacted by Congress in 1937, the TIA “e xpressly [] restrict[s] the jurisdiction of the district courts of the United States over suits relating to the collection of State4 taxes.” Hibbs v. Winn , 542 U.S. 88, 104 (2004) (quota tions omitted). It provides that federal “district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law wh ere 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 injunc tive and declaratory relief. California v. Grace Brethren Church , 457 U.S. 393, 408 (1982). Additionally, the comity doctrine, whic h the Supreme Court has described as “more embracive than the TIA, . . . restrains federal c ourts from entertaining claims for relief that risk disrupti ng state tax administration.” Levin v. Commerce Energy, Inc. , 560 U.S. 413, 417 (2010). Taxpayers bringing such claims for relief “must seek protection of their federal ri ghts by state remedies , provided . . . that those remedies are plain, adequate, and complete.” Fair Assessment in Real Estate Ass’n, Inc. v. McNary , 454 U.S. 100, 116 (1981) (“[The TIA] , and the decisions of this Court which preceded it, reflect the fundamental principle of com ity between federal courts and state governments that is es sential to ‘Our Federalism,’ pa rticularly in the area of state taxation.”). III. The district court’s dismis sal of LUAF’s claims for lack of jurisdiction is supported by both the TIA a nd principles of comity. A. To determine whether the TIA requires di smissal for lack of subject matter jurisdiction, federal courts mu st first determine whether th e plaintiff seeks to “enjoin,5 suspend or restrain the assessment, le vy or collection” of any state tax. Hibbs , 542 U.S. at 99. If that is the relief sought , the court must determ ine whether the state’s courts provide a “plain, sp eedy and efficient” remedy. Hill v. Kemp , 478 F.3d 1236, 1246 (10th Cir. 2007). If they do, the federa l court must dismiss the claim for lack of jurisdiction. Id. Here, LUAF’s claims fall within the TIA’s jurisdictional bar. First, LUAF seeks declaratory and inj unctive relief that would enjoin or restrain Colorado’s “assessment, levy, or co llection” of taxes. For example, LUAF seeks to enjoin Co lorado from challenging the validit y of conservation easement tax credits where the conservation easement donor did not meet certain statutory requirements. LUAF also seeks to prev ent Colorado from challenging the validity of the appraisals used to s upport the tax credits. A court order enjoining these challenges to tax credits would preven t Colorado from assessing and collecting income taxes based on invalid or overvalued tax credit claims. Th is 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 Colora do rejected claims for conservation easement tax credits. Such a decl aration would prevent Colorado from rejecting such claims in the future—effectively restraining the assessme nt 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 s ought by LUAF would6 prevent Colorado from collecting taxes that it would otherwis e be entitled to. Consequently, the relief sought falls w ithin 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 fro m applying here. 542 U.S. 88. In Hibbs , Arizona law authorized income-tax credits for payments made to organizations that award scholarships a nd grants to children attending private schools. Hibbs , 542 U.S. at 92. The plaintiffs brought an Establishment Clause challenge seeking to prevent taxpayers from ga ining the benefit of those tax credits. Id. In effect, this challenge sought to increase stat e 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 th e “assessment, levy, or collection” of state taxes. Id. at 105–07. 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 abil ity to challenge conservation easement tax credits. Thus, Hibbs does not apply to our case. Hill , 478 F.3d at 1250 (“Our case . . . does not involve the somewhat unusual circumstance confronted by Hibbs of citizens seeking to e liminate tax credits and ‘flog’ th e State to collect more tax revenues, but instead falls in the tradi tional 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.7 But this court has already re jected a similar argument in Hill v. Kemp . 478 F.3d at 1249. There, we declared th at “nothing in the language of the TIA indicates that our jurisdiction to hear challenges to state ta xes can be turned like a spigot, off when brought by taxpayers challengi ng their own liabilities and on when brought by third parties challenging the li abilities of others.” Id. Additionally, LUAF is 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 ac cess to “a plain, speedy and efficient remedy” in Colorado state courts. Before declining federal ju risdiction under the TIA, federal courts must decide whether the state “a ffords a plain, speedy and efficient remedy in its courts for thos e seeking to challe nge its taxes.” Hill , 478 F.3d at 1253. The state court remedy need onl y meet “certain minimal procedural criteria.” Grace Brethren Church , 457 U.S. at 411. 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 a ny and all constitutiona l objections to the tax.” Id. Here, Colorado courts provide a “plain , speedy and efficient remedy.” Under Colorado’s statutory scheme, if a cons ervation easement tax credit is denied, taxpayers can appeal the deni al and receive an administra tive 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, id. § 39-21-105(2)(b), and that district court’s ruling is a ppealable to the Colorado Cour t of Appeals and ultimately8 the Colorado Supreme Court, id. § 39-21-105(8)(a). Colorado thus provides an adequate remedy under the TIA. See Grace Brethren Church , 457 U.S. at 413–14 (holding an adequate remedy existed wher e plaintiffs could “file an action in Superior Court . . . raising all arguments against the vali dity of the tax” and, if unsuccessful, could appeal to higher state courts). B. Principles of comity also support the district court’s dism issal for lack of jurisdiction. The comity doctrine preven ts federal courts fro m entertaining § 1983 claims for relief that “risk disr upting state tax administration.” Levin , 560 U.S. at 417. Taxpayers bringing such claims for re lief “must seek protec tion of their federal rights by state remedies, provided . . . that those remedies are pl ain, adequate, and complete.” McNary , 454 U.S. at 116. For the same reasons stated in the above TIA analys is, LUAF’s claims “risk disrupting state tax admini stration,” and Colorado’s courts provide a “plain, adequate, and complete” remedy. Accordingl y, the comity doctrine also supports the district court’s dismissal fo r lack of jurisdiction. C. LUAF argues that barring federal juri sdiction over its takings claim would conflict with the Supreme Court’s decision in Knick v. Township of Scott, Pennsylvania , 139 S. Ct. 2162 (2019). In Knick , the Court overruled its prior decision that property owners must “seek ju st compensation under state law in state court before bringing a federa l takings claim under § 1983.” Knick , 139 S. Ct. at9 2169 (overruling Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City , 473 U.S. 172, 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 fo r just compensation.” Id. at 2178. Instead, Knick concluded that a property owner has “an actionable Fifth Amendment takings claim when the government take s his property without paying for it.” Id. at 2167. Therefore, the property owner may bring his takings clai m “in federal court under § 1983 at that time.” Id. at 2168. Contrary to LUAF’s argument, Knick does not prevent the TIA and comity principles from barring federal jurisdicti on 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.” Id. at 2170. 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 ade quate state remedy exists. Levin , 560 U.S. at 417. Furthermore, our conclusion is not alte red 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 chal lenges to the administration of state tax laws. McNary , 454 U.S. at 105 (holding that com ity barred federal jurisdiction where plaintiffs brought a § 1983 cl aim alleging that Missouri ta x laws had deprived them of equal protection and due process of law); Grace Brethren Church , 457 U.S. at 408 (concluding “that the [TIA] also prohibits a district court from issuing a declaratory10 judgment holding state tax laws unconstitutional” where plai ntiffs allege a violation of the Establishment and Free Exercise Clauses of the First Amendment); Levin , 560 U.S. at 419 (holding that com ity required plaintiffs’ claim to proceed originally in state court where plaintiffs alleged “discriminatory ta xation in violation of the Commerce and Equal Prot ection Clauses”). In McNary , the Court specifically weighed the jurisdictional barr iers of comity and the TIA against the Court’s precedent th at “where § 1983 is involved, . . . a litigant challenging the constitu tionality of any state action may proceed directly to federal court.” McNary , 454 U.S. at 105. Weighing th ese competing considerations, McNary held that “the principle of comity controls” in a § 1983 challenge to the administration of state tax laws. Id. Accordingly, the plai ntiffs were required to “seek protection of their federal [const itutional] rights by state remedies.” Id. at 116. Although none of these cases involve d a takings claim like the one LUAF asserts, this is not a mean ingful distinction because Knick sought to put takings claims on equal footing with “other constit utional claim[s] [] guaranteed a federal forum under § 1983.” Knick , 139 S. Ct. at 21 69–70 (“overruling Williamson County and restoring takings claims to the full- fledged constitutional status the Framers envisioned when they included the Clause am ong the other protections in the Bill of Rights”). Accordingly, we treat takings claims the sa me as other constitutional claims as they relate to the TIA and comity. See Lawyer v. Hilton Head Pub. Serv. Dist. No. 1 , 220 F.3d 298, 306 (4th Cir. 2000) (c oncluding that comity and the TIA11 barred plaintiffs’ takings cl aim from proceeding in fede ral 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 clai ms. We therefore A FFIRM 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