In the United States Court of Federal Claims 

No. 17-739C 

(Filed: December 21, 2017)

KANE COUNTY, UTAH, individually and 

on behalf of all others similarly situated,

 Plaintiffs, 

v. 

THE UNITED STATES OF AMERICA, 

 Defendant. 

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Keywords: Payments in Lieu of Taxes; 

Statutory Interpretation; 31 U.S.C. 

§ 6906; Obligations Limited by 

Appropriations. 

 

 

Alan I. Saltman, Smith, Currie & Hancock LLP, Washington, DC, for Plaintiffs. Robert O. 

Fleming, Smith, Currie & Hancock LLP, Atlanta, GA, Of Counsel. 

Mark E. Porada, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department 

of Justice, Washington, DC, for Defendant, with whom were Claudia Burke, Assistant Director, 

Robert E. Kirschman, Jr., Director, and Chad A. Readler, Acting Assistant Attorney General. 

Tony Irish, Division of General Law, Office of the Solicitor, Department of the Interior, Of 

Counsel. 

OPINION AND ORDER 

KAPLAN, Judge.

The issues before the Court in this case involve a pure question of statutory 

interpretation. Plaintiff Kane County is eligible to receive annual payments from the federal 

government under the Payments in Lieu of Taxes (PILT) program, which the Secretary of the 

Interior administers pursuant to statutory authority granted him by 31 U.S.C. §§ 6901–07. PILT 

payments provide compensation to certain units of local government within whose borders lie 

lands that are owned by the federal government and which are therefore immune to state and 

local taxation. The statute sets forth specific formulas to calculate the amount of the payment that 

each eligible unit of local government will receive. 

In fiscal years 2015 and 2016, Congress appropriated to the Department of Interior less 

than the amount necessary to make full PILT payments to all eligible local governments. As a 

result, the Secretary of the Interior proportionally reduced each eligible jurisdiction’s payment 

amount. Thus, Kane County and the other eligible units of local government each received PILT 

payments in fiscal years 2015 and 2016 that were less than the amounts due them under the 

statutory formulas. 
2 

Kane County has now filed suit alleging that the federal government owes it and other 

similarly situated units of local government additional payments under the statute. It has moved 

for summary judgment prior to any discovery. The government opposes Kane County’s motion 

and has moved to dismiss the complaint for failure to state a claim. 

For the reasons set forth below, the Court concludes that the applicable statutory 

provisions created an obligation on the part of the Secretary of the Interior to pay Kane County 

the amounts it is owed pursuant to the statutory formulas for fiscal years 2015 and 2016, 

irrespective of the shortfall in appropriations during those years. Accordingly, the government’s 

motion to dismiss is DENIED and Kane County’s motion for summary judgment as to the 

government’s liability is GRANTED. 

BACKGROUND

I. The Statute 

On October 20, 1976, Congress enacted the PILT Act. Pub. L. No. 94-565, 90 Stat. 2662 

(codified as amended at 31 U.S.C. §§ 6901–07). The act is designed to “compensate[] local 

governments for the loss of tax revenues resulting from the tax-immune status of federal lands 

located in their jurisdictions, and for the cost of providing services related to these lands.” 

Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 258 (1985). 

The PILT Act directs that “the Secretary of the Interior shall make a payment for each 

fiscal year to each unit of general local government in which entitlement land is located as set 

forth in this chapter.” 31 U.S.C. § 6902(a)(1) (2012).1

 “Entitlement land” is defined to include a 

variety of lands controlled, protected by, or otherwise under the jurisdiction of the federal 

government. See id. § 6901(1); see also Lawrence Cty., 469 U.S. at 258 (noting that 

“‘entitlement lands’ include wilderness areas, national parks, and lands administered by the 

 

1

A “unit of general local government” is defined, in pertinent part, as: 

[A] county (or parish), township, borough, or city . . . where the city 

is independent of any other unit of general local government, that— 

(I) is within the class or classes of such political subdivision in a 

State that the Secretary of the Interior, in his discretion, determines 

to be the principal provider or providers of governmental services 

within the State; and 

(II) is a unit of general government, as determined by the Secretary 

of the Interior on the basis of the same principles as were used by 

the Secretary of Commerce on January 1, 1983, for general 

statistical purposes. 

31 U.S.C. § 6901(2)(A).
3 

Bureau of Land Management”). It is undisputed in this case that Kane County was eligible to 

receive payments under the PILT Act during FY 2015 and FY 2016. 

Section 6903 of the statute specifies the amount of the payment to be made to each 

eligible local government as required by § 6902(a)(1). It states that “[a] payment under section 

6902 . . . is equal to the greater of” one of two amounts derived from statutory formulas that are 

based upon the acreage of entitlement land within the local government’s jurisdiction. 31 U.S.C. 

§ 6903(b)(1). The Act also caps the payment amount a local government can receive, 

notwithstanding the formulas, based upon that jurisdiction’s population. Id. § 6903(c). 

Historically, the relationship between congressional appropriations and the Secretary’s 

obligation to make PILT payments to eligible units of local government (as specified in §§ 6902 

and 6903) had been set by § 6906. Prior to 2008, § 6906 stated that “[n]ecessary amounts may be 

appropriated to the Secretary of the Interior to carry out this chapter” and that “[a]mounts are 

available only as provided in appropriation laws.” 31 U.S.C. § 6906 (2006). On October 3, 2008, 

however, Congress amended § 6906, deleting the existing language and providing instead that 

“[f]or each of fiscal years 2008 through 2012 . . . (1) each county or other eligible unit of local 

government shall be entitled to payment under this chapter; and (2) sums shall be made available 

to the Secretary of the Interior for obligation or expenditure in accordance with this chapter.” 

Emergency Economic Stabilization—Energy Improvement and Extension—Tax Extenders and 

Alternative Minimum Tax Relief, Pub. L. No. 110-343, 122 Stat. 3765 (2008). Congress 

subsequently amended § 6906 twice more to extend its coverage to FYs 2013 and 2014. Moving 

Ahead for Progress in the 21st Century Act, Pub. L. No. 112-141, § 100111, 126 Stat. 405, 906 

(2012); Agricultural Act of 2014, Pub. L. No. 113-79, § 12312, 128 Stat. 649, 992 (2014). It did 

not, however, extend the application of § 6906 to subsequent fiscal years. See 31 U.S.C. § 6906 

(Supp. IV 2016). 

II. FY 2015 and FY 2016 PILT Payments 

On December 16, 2014, Congress appropriated money for the PILT program for FY 2015 

in the Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 5, 

128 Stat. 2130, 2133 (2014). The applicable provision states that “[f]or payments in lieu of taxes 

under chapter 69 of title 31, United States Code, for fiscal year 2015, $372,000,000 shall be 

available to the Secretary of the Interior.” Id. § 11(a), 128 Stat. at 2135. That dollar amount was 

“in addition to amounts made available for payments in lieu of taxes by the Carl Levin and 

Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015.” Id. 

§ 11(b). Congress passed the latter act three days later, on December 19, 2014. Pub. L. No. 113-

291, 128 Stat. 3292. In it, Congress appropriated another $33,000,000 for the PILT program for 

FY 2015, as well as an additional $37,000,000 “available for obligation and payment beginning 

on October 1, 2015.”2

 See id. § 3096, 128 Stat. at 3882. 

 

2

 Congress subsequently amended this provision to reflect that the additional $37,000,000 

available beginning October 1, 2015, was nevertheless for FY 2015. See Continuing 

Appropriations Act, 2016, Pub. L. No. 114-53, § 139, 129 Stat. 502, 510 (2015). 
4 

The amount of money that Congress appropriated for PILT payments for FY 2015 was 

insufficient to fund payments in the amounts established by the statutory formulas. A total of 

$441.6 million was available to the Department of Interior for PILT payments in FY 2015 after 

the costs of “program administration” were deducted. See U.S. Dep’t of Interior, October 2015 

Addendum to Fiscal Year 2015 Payments in Lieu of Taxes National Summary 2–3 (2015), 

https://www.doi.gov/pilt/resources/annual-reports (“2015 PILT Report”).3 The total amount of 

money owed to eligible local governments according to the statutory formulas, however, was 

approximately $450.9 million. See id. at 7. As a result, the Department of Interior reduced its 

PILT payments to eligible units of local government on a pro rata basis. See id.; see also id. at 

84. 

The amount Congress appropriated for PILT payments in FY 2016—$452 million—was 

also insufficient to fund the payments at the formula levels. See Consolidated Appropriations 

Act, 2016, Pub. L. No. 114-113, 129 Stat. 2242, 2541–42 (2015). After administrative expenses, 

approximately $451.6 million was available for PILT payments to local governments. Id. The 

total amount owed under the statutory formulas, however, was approximately $459.5 million. 

U.S. Dep’t of Interior, Fiscal Year 2016 Payments in Lieu of Taxes National Summary 8 (2016). 

Thus, the Department of Interior again reduced its PILT payments to local governments on a pro 

rata basis. See id. 

III. This Action 

On June 2, 2017, Kane County filed a complaint in this court on behalf of itself “and on 

behalf of all others similarly situated.” Compl. at 1, ECF No. 1. In its complaint, Kane County 

alleges that it is a unit of general local government in whose jurisdiction entitlement land is 

located, making it eligible to receive PILT payments. See id. ¶ 3. It asserts that the federal 

government violated the statute when it failed to pay Kane County the full amount of PILT 

payments to which it was allegedly entitled for FYs 2015 and 2016. Id. ¶¶ 18–29. 

On June 13, 2017, Kane County moved for summary judgment. ECF No. 5. The 

government filed an opposition and motion to dismiss on August 3, 2017. ECF No. 10. On 

September 18, 2017, by leave of the Court, Kane County filed an amended complaint “to correct 

small numerical errors . . . in [its] original complaint.” ECF Nos. 12, 14–15. On September 26, 

2017, the Court granted the government’s request for an extension of time to answer the 

amended complaint until after resolution of the parties’ motions, and deemed those motions to be 

with respect to the amended complaint. Order, ECF No. 17. The Court held oral argument on the 

motions on December 13, 2017. Order, ECF No. 18. 

 

3

 Of this amount, $2,500,000 was sequestered. See 2015 PILT Report at 2–4. Kane County does 

not challenge the government’s reduction of its FY 2015 PILT payment due to sequestration. 

Am. Compl. at 4 n.6, ECF No. 15. 
5 

DISCUSSION 

I. Subject Matter Jurisdiction 

Pursuant to the Tucker Act, the United States Court of Federal Claims has jurisdiction to 

“render judgment upon any claim against the United States founded either upon the Constitution, 

or any Act of Congress or any regulation of an executive department, or upon any express or 

implied contract with the United States, or for liquidated or unliquidated damages in cases not 

sounding in tort.” 28 U.S.C. § 1491(a) (2012). The Tucker Act serves as a waiver of sovereign 

immunity and a jurisdictional grant, but it does not create a substantive cause of action. Jan’s 

Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A 

plaintiff, therefore, must establish that “a separate source of substantive law . . . creates the right 

to money damages.” Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) 

(en banc in relevant part)). In Greenlee County v. United States, 487 F.3d 871, 877 (Fed. Cir. 

2007), the court of appeals held that the PILT Act, 31 U.S.C. §§ 6901–07, is “a moneymandating source sufficient to confer jurisdiction on the Court of Federal Claims.” Accordingly, 

the Court has subject matter jurisdiction over Kane County’s complaint. 

II. The Parties’ Motions 

As noted, Kane County has moved for summary judgment as to liability, while the 

government has moved to dismiss Kane County’s complaint for failure to state a claim. The 

material facts are not in dispute and both motions turn upon the same question of law—whether 

the government was obligated by the PILT Act to make payments to Kane County for FYs 2015 

and 2016 in the full amounts determined by the statutory formulas, notwithstanding that the 

amounts due were not fully funded by congressional appropriations. 

For the reasons set forth below, the Court concludes that the federal government was 

obligated to provide Kane County with PILT payments for FY 2015 and FY 2016 equal to the 

amounts determined under the statutory formulas. It rejects the government’s argument that the 

Secretary’s obligation was limited by Congress’ failure to appropriate sufficient moneys to fully 

fund the PILT program for those fiscal years. Accordingly, the government’s motion to dismiss 

is DENIED. And because there are no material facts in dispute, Kane County’s motion for 

summary judgment as to liability is GRANTED.

4

A. Principles of Statutory Interpretation 

Statutory interpretation involves a question of law, whose resolution begins (and often 

ends) with the language of the statute. Rosete v. Office of Pers. Mgmt., 48 F.3d 514, 517 (Fed. 

Cir. 1995); see also Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017) 

(“We thus begin and end our inquiry with the text.”); McGee v. Peake, 511 F.3d 1352, 1356 

(Fed. Cir. 2008). A statute’s “plain meaning is derived from its text and its structure.” McGee, 

 

4

 Because, as noted, Kane County does not challenge the government’s payment reduction for 

FY 2015 due to sequestration, the Court’s holding does not extend to that portion of the 

reduction in payments for FY 2015 due to sequestration. 
6 

511 F.3d at 1356. Thus, the court may “‘look to the provisions of the whole law’” to determine a 

section’s meaning, as the inquiry is not limited to a particular section “in isolation.” Star 

Athletica, L.L.C., 137 S. Ct. at 1010 (quoting United States v. Heirs of Boisdoré, 12 L. Ed. 1009 

(1849)). Further, language in a statute, absent instruction to the contrary, is given its “ordinary, 

contemporary, common meaning.” Bilski v. Kappos, 561 U.S. 593, 603 (2010) (quoting 

Diamond v. Diehr, 450 U.S. 175, 182 (1981)). 

Where “Congress has expressed its intention by clear statutory language, that intention 

controls and must be given effect.” Rosete, 48 F.3d at 517 (citing Chevron, U.S.A. v. Nat. Res. 

Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)). That is, where “statutory language is clear and 

unambiguous, the inquiry ends with the plain meaning.” McGee, 511 F.3d at 1356 (quoting 

Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007)). 

B. The Federal Circuit’s Decision in Greenlee County v. United States 

Regarding the Government’s Obligations Prior to FY 2008 

As explained above, § 6902(a)(1) states, in pertinent part, that “the Secretary of the 

Interior shall make a payment for each fiscal year to each unit of general local government in 

which entitlement land is located as set forth in this chapter.” (emphasis added). 

Section 6903(b)(1) then describes the formulas that are used to determine the amount of the 

payment the Secretary “shall make” pursuant to § 6902(a)(1). The plain meaning of these 

sections read together is that the Secretary of the Interior has an obligation to make payments to 

each eligible unit of local government in an amount determined through the methodology 

prescribed in the statute. 

While the language of §§ 6902 and 6903 has remained relatively stable in substance over 

the years, the enforceability of the government’s obligation to make PILT payments in the 

amounts prescribed by the statutory formulas has been affected by changes in the language of 

§ 6906. Thus, for fiscal years prior to FY 2008, § 6906 of the PILT Act stated that “[n]ecessary 

amounts may be appropriated to the Secretary of the Interior to carry out this chapter” and that 

“[a]mounts are available only as provided in appropriation laws.” In Greenlee County, the court 

of appeals determined that this language modified the payment obligations imposed by §§ 6902 

and 6903, limiting the government’s obligation to the amount of money that Congress 

appropriated to fund the PILT program. See 487 F.3d at 877–81. 

Thus, in Greenlee County, units of local government filed suit complaining that for FY 

1998 through FY 2004 they had received payments that were lower than was required by 

application of the statutory formulas. Id. at 873–74. The court of appeals agreed with Greenlee 

County that under the statute the “Secretary of the Interior is required to make annual payments 

to each unit of general local government in which entitlement land is located.” Id. (quoting 

Lawrence Cty., 469 U.S. at 258). It further agreed that “the amount of payment a unit of local 

government is entitled to under § 6902 is calculated based on” the formulas in § 6903. Id. at 874 

(emphasis added). But notwithstanding this entitlement, the court of appeals observed, § 6906 

provided that “[a]mounts [necessary to make the payments] are available only as provided in 

appropriation laws.” Id. The court of appeals concluded that this language modified the 

government’s obligations under §§ 6902 and 6903 to pay Greenlee County the amounts 

calculated under the statute’s formulas. Id. at 878–80. 
7 

The court observed that there existed a “long . . . established” rule that “the mere failure 

of Congress to appropriate funds, without further words modifying or repealing, expressly or by 

clear implication, the substantive law, does not in and of itself defeat a Government obligation 

created by statute.” Id. at 877 (quoting N.Y. Airways, Inc. v. United States, 369 F.2d 743, 748 

(Ct. Cl. 1966)). In light of that rule, the court explained, “an unqualified right to compensation 

should not be deemed abrogated or suspended by subsequent enactments which merely 

appropriated a less amount . . . for particular fiscal years, and which contained no words that 

expressly or by clear implication modified or repealed the previous law.” Id. (quoting United 

States v. Langston, 118 U.S. 389, 394 (1886)) (omission in original). Absent such express 

language or clear implication, the court affirmed, the “rights [of the obligee] [remain] 

enforceable in the Court of Claims.” Id. (quoting N.Y. Airways, Inc., 369 F.2d at 748 (second 

alteration in original)). 

But while the mere failure to appropriate sufficient funds does not relieve the government 

of a statutory payment obligation, the court observed, there are “instances” where the statutes 

that create such obligations “may restrict the government’s liability or limit its contractual 

authority to the amount appropriated by Congress.” Id. at 878. Those restrictions, the court of 

appeals explained, are frequently expressed through statutory language that makes an obligation 

to pay “subject to the availability of appropriations.” Id. The court concluded that there was 

“little functional difference” between statutory language making an obligation “subject to the 

availability of appropriations,” and the language of § 6906 which then provided that “[a]mounts 

are available only as provided in appropriation laws.” Id. The court of appeals thus concluded 

that “the language of § 6906 limits the government’s liability under PILT to the amount 

appropriated by Congress.” Id.; see also Prairie Cty. v. United States, 782 F.3d 685 (Fed. Cir. 

2015) (same).5

C. The Effect of the 2008 Repeal and Replacement of the Former § 6906 

As described above, the court of appeals’ ruling in Greenlee County limiting the 

government’s obligation to make PILT payments to the amount appropriated by Congress was 

based on the specific language of the earlier version of § 6906. Section 6906, however, has since 

been amended to remove the limiting language that was pivotal to the court of appeals’ decision. 

In 2008, as described above, Congress amended § 6906 to state that “each county or other 

eligible unit of local government shall be entitled to payment under this chapter” and that “sums 

shall be made available to the Secretary of the Interior for obligation or expenditure in 

accordance with this chapter.” That language, however, applied only to the government’s 

obligations in FY 2008 through FY 2014. 

 

5

 In Prairie County, multiple counties brought suit to recover the shortfall in PILT payments in 

FY 2006 and FY 2007. The court of appeals reaffirmed the interpretation of § 6906 it had set 

forth in Greenlee County. See 782 F.3d at 686. It again stated that the question before it was 

“whether the government’s liability under PILT is limited by the amount appropriated by 

Congress.” Id. And it again found that “the plain language of the applicable version of § 6906 

limits the government’s liability under PILT to the amount appropriated by Congress.” Id. at 

688. 
8 

But while the current version of § 6906 has no application to FY 2015 and FY 2016, the 

result of Congress’ action in 2008 is that there is no longer any language in the PILT Act (as 

there was before 2008) that “restrict[s] the government’s liability or limit[s] its contractual 

authority to the amount appropriated by Congress” for those years. See Greenlee Cty., 487 F.3d 

at 878. Accordingly, there is no textual basis in the PILT Act for finding that Congress modified 

the government’s obligation to make payments at formula levels for FY 2015 or 2016. 

Nor is there is any language in the appropriations acts for FY 2015 or FY 2016 that 

restricts the government’s obligation to make full PILT payments. For both 2015 and 2016, 

Congress merely appropriated specific dollar amounts; it did not include any other language 

addressing the substantive obligation. See Pub. L. 113-235 § 11, 128 Stat. at 2135; Pub. L. No. 

114-113, 129 Stat. at 2541–42. And, as explained above, “the mere failure of Congress to 

appropriate funds, without further words modifying or repealing, expressly or by clear 

implication, the substantive law, does not in and of itself defeat a Government obligation created 

by statute.” Greenlee Cty., 487 F.3d at 877; see also Langston, 118 U.S. at 394. 

Recognizing that there is no limiting language in the text of the statute or the 

appropriations acts covering FYs 2015 and 2016, the government seeks support for its position in 

the legislative history of the 2016 appropriations act. Specifically, it cites the explanatory 

statement of the Chairman of the House of Representatives’ Committee on Appropriations, 

which contains the observation that the appropriation of $452 million was intended “to fully fund 

the Payment in Lieu of Taxes (PILT) program for fiscal year 2016.” Def.’s Opp’n to Pl.’s Mot. 

for Summ. J. & Cross-Mot. to Dismiss (Def.’s Opp’n) at 17, ECF No. 10 (quoting 161 Cong. 

Rec. H10161-01 (daily ed. Dec. 17, 2015) (statement of Rep. Rogers)). The government asserts 

that this statement reflects congressional intent that the appropriation would “fully satisfy the 

PILT program payment obligations for fiscal year 2016, regardless of whether the statutory 

formula calculations under section 6903(b)(1) would have resulted in a different or greater 

payment.” Id. 

But legislative history cannot be employed to supply words that are not contained in the 

statute itself. “[L]egislative history itself is not binding . . . and does not ‘ha[ve] the force of law, 

for the Constitution is quite explicit about the procedure that Congress must follow in 

legislating.’” Thompson v. Cherokee Nation of Okla., 334 F.3d 1075, 1085 (Fed. Cir. 2003) 

(quoting Am. Hosp. Ass’n v. Nat’l Labor Relations Bd., 499 U.S. 606, 616 (1990)), aff’d sub 

nom. Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631 (2005). Therefore, in order for a limit on 

an obligation to be binding “it must be carried into the legislation itself; [it] cannot be imposed 

by statements in committee reports or other legislative history.” Id. 

Further, and in any event, the phrase contained in the Chairman’s statement—which 

speaks of Congress’s intent to “fully fund” PILT payments for 2016 through the amounts 

appropriated—bears no similarity to statutory language that makes an obligation “subject to the 

availability of appropriations.” To the contrary, the phrase is reasonably read as representing the 

opposite conclusion—i.e., a belief (or expectation) that the amount Congress had appropriated 

would be adequate to cover the amounts to which local governments were entitled under the 
9 

statutory formulas. The articulation of that expectation does not speak to the extent of the 

obligation itself or to the question of what will happen if the expectation is not realized.6

The government also argues that Congress’ failure to extend the current version of § 6906 

to FY 2015 and FY 2016 reflects an intent to resurrect the pre-FY 2008 regime under which the 

government’s obligation was subject to the availability of appropriations. Specifically, it 

contends that the FY 2008–FY 2014 version of § 6906 converted the PILT program “into a direct 

spending program for a limited number of years” and “provide[d] full appropriations 

authority . . . through the program’s authorizing legislation.” Def.’s Opp’n at 14. It further asserts 

that by failing to extend that direct spending authority beyond FY 2014, Congress “returned [the 

PILT program] to the status that it held . . . as a discretionary spending program where Congress 

would determine how much appropriations authority to allocate to the program on a year-by-year 

basis.” Id. at 16. According to the government, it thereby “achieved the same result” as if it had 

expressly “reenact[ed] the language of § 6906 in effect prior to October 2008 . . . that ‘[a]mounts 

are available only as provided in appropriation laws.’” Id. (also stating that “the only logical 

conclusion is that Congress expected and intended that payments under the PILT program in 

fiscal years 2015 and 2016 would be capped at whatever amounts Congress chose to appropriate 

for the program in those years”). 

The government’s argument is untenable. It is urging the Court to read the current statute 

as though it still contained the limiting language that Congress repealed in October of 2008; in 

other words, the government asks the Court to find that Congress resurrected a repealed 

provision of law by implication when it failed to extend the amended version of § 6906 beyond 

FY 2014. It is well established, of course, that repeals by implication are not favored. E.g., Hui v. 

Castaneda, 559 U.S. 799, 810 (2010); see also United States v. Fausto, 484 U.S. 439, 452–53 

(1988) (stating that the Court “agree[s] with the principle” that “repeals by implication are 

strongly disfavored”). And if the law strongly disfavors repeals by implication, it is 

inconceivable that it would ever permit reenactments of statutory language by implication. 

Indeed, the government does not cite a single case that supports the resurrection of a repealed 

provision of law by implication.7

 

6

 As Kane County notes, Congress appropriated funds for PILT based on estimates prepared 

before the Department of Interior was able to calculate actual payment amounts under the 

formulas. Pls.’ Reply to Gov’t’s Opp’n to Pls.’ Mot. for Summ. J. & Resp. to Gov’t’s Cross-Mot. 

to Dismiss at 11–12, ECF No. 11 (citing Lynne Corn, Congressional Research Service, PILT 

(Payments in Lieu of Taxes): Somewhat Simplified 14 (2015)). The shortfall may therefore be 

attributable to inaccuracies in the initial estimates. 

7

 The government also appears to argue that absent the language contained in § 6906 of the Act 

as amended in 2008 (stating that “each county or other eligible unit of local government shall be 

entitled to payment under this chapter”), the PILT Act imposes no obligation on the Secretary of 

the Interior to make payments to eligible local governments in any particular amount. See Def.’s 

Opp’n at 11–15. This argument fails because Kane County’s entitlement to have its PILT 

payments determined under the statutory methodology is not based on the now-expired § 6906; 

as explained above, it is based on the language in § 6902, which provides that the Secretary 

“shall make a payment for each fiscal year” to eligible units of local government, and the 
10 

Finally, the Court finds equally unpersuasive the government’s argument that the PILT 

Act is ambiguous, and that the Court should therefore defer to the Department of Interior’s 

regulation as controlling the extent of its obligation to make PILT payments in the event of an 

appropriations shortfall. Def.’s Opp’n at 23–24 (citing, among others, Chevron, U.S.A., Inc., 467 

U.S. at 843). The regulation upon which the federal government relies, 43 C.F.R. § 44.51(b), 

states that “[i]f Congress appropriates insufficient monies to provide full payment to each local 

government during any fiscal year, the Department will reduce proportionally all payments in 

that fiscal year.” See 43 C.F.R. § 44.51(b) (2016). But this regulatory language has been in 

existence since at least 2000. See Financial Assistance, Local Governments, 65 Fed. Reg. 

51,229-03 (Aug. 23, 2000). The regulation thus implemented the version of § 6906 at issue in 

Greenlee County, which has since been repealed. Finally, and in any event, the Court has 

concluded that the language of the statute is clear, not ambiguous. Thus, it would owe no 

deference to the Interior regulation under Chevron even if the regulation did purport to interpret 

the current statutory language. 

* * * * * * * * * * * * * 

To summarize, the material facts are not in dispute. Further, the Court finds that the PILT 

Act (at §§ 6902 and 6903) obligates the federal government to make payments to each eligible 

unit of local government at the levels specified therein. It further finds that there is no language 

in the statute or the appropriations acts purporting to link these obligations to the amount of 

congressional appropriations in FY 2015 or FY 2016. Kane County is, accordingly, entitled to 

judgment as a matter of law as to its claim that it did not receive moneys to which it was 

statutorily entitled for FYs 2015 and 2016. 

CONCLUSION 

Based on the foregoing, the government’s motion to dismiss is DENIED and Kane 

County’s motion for summary judgment as to the government’s liability is GRANTED. The 

parties shall file a joint status report on or before January 16, 2018, proposing further 

proceedings in this case. 

IT IS SO ORDERED. 

 

s/ Elaine D. Kaplan 

ELAINE D. KAPLAN 

Judge 

 

language of § 6903(b)(1), which specifies that “a payment under section 6902 is equal to” the 

greater of one of the two amounts derived through application of the statutory formulas. Indeed, 

it was precisely because §§ 6902 and 6903 created such a payment obligation that the court of 

appeals found it necessary in Greenlee County to examine whether the pre-2008 version of 

§ 6906 modified that obligation.