A federal judge granted a temporary restraining order Monday allowing a Seneca Nation

mail-order cigarette retailer to supply tobacco products across the country without having to

meet the requirements of a new federal law that took effect at midnight.

District Judge Richard J. Arcara granted the motion as part of the retailer's lawsuit

against the U.S. government. The retailer, Red Earth, which does business as Seneca Smokeshop,

has asked the court to declare the Prevent All Cigarette Trafficking Act unconstitutional.

Seneca Smokeshop, a 10-year-old business, employs 17 people and sells cigarettes in 46

states. It is owned by Aaron J. Pierce, a member of the Seneca Nation of Indians.

Without the restraining order, the law would have immediately crippled the business, said

Lisa A. Coppola, the retailer's lawyer.

"It's no small thing for him to lose his business entirely," Coppola told Arcara during a

hearing Monday afternoon in federal court.

The so-called PACT Act, signed into law in March, bans the U.S. Postal Service from

shipping cigarettes and affects the mail-order cigarette business in other ways.

It requires those selling cigarettes on the Internet to pay all federal, state, local or

tribal tobacco taxes, and to affix tax stamps before delivering any tobacco products to any

customer.

Retailers also have to register with the state where they are based and make periodic

reports to state tax collection officials. Sellers also must check the age and identities of

customers when tobacco products are purchased and when they are delivered.

The restraining order will remain in effect for 14 days, unless the court rules earlier on

the retailer's motion to keep the federal government from enforcing the new law throughout

duration of the lawsuit. The judge ordered both sides to return to court July 7 for a hearing

on that request.

In seeking the restraining order, lawyers for Seneca

Smokeshop did not address the Postal Service ban, but focused on how the retailer would have

to contend with thousands of state and local taxing jurisdictions while selling cigarettes

across the country.

"We're not talking about only 46 states or a couple of taxing jurisdictions," Coppola told

Arcara.

"There are extraordinarily serious problems with the act that have nothing to do with the

Postal Service," Coppola said after learning of Arcara's ruling.

Arcara found the smoke shop demonstrated it would have suffered irreparable injury without

the restraining order. The judge also found the retailer demonstrated a likelihood of success

on the merits of its claim that the PACT Act violates various provisions of the Constitution,

including the commerce clause, the 10th amendment, the due-process clause and the equal

protection clause.

In his written order, Arcara said he acted "in the public interest because the public

favors restraining enforcement of statutes that appear to violate provisions of the

Constitution."

Arcara noted the U.S. Attorney's Office had failed to file a timely response to the

retailer's motion for a restraining order.

The retailer's lawyer filed court papers Friday afternoon, both in Buffalo and Washington,

D.C.

Assistant U.S. Attorneys Richard D. Kaufman and Mary Fleming asked Arcara to hold off on

ruling for at least a couple of days so they could better prepare a response.

"He'd only lose a couple of days of business," Kaufman said about how such a delay would

affect the retailer.

"How would you like to lose a couple days of pay, Mr. Kaufman?" Arcara replied.

Coppola, meanwhile, stressed the immediate danger the smoke shop faced as the effective

date for the new law approached.

"If this law goes in effect at midnight, it essentially closes down our client," Coppola

said. "This product my client is selling is a legal product, and that should count for

something."

Arcara's order is limited in scope, restraining the federal government from enforcing the

federal law against specifically the Seneca Smokeshop and Pierce — but not mentioning

other cigarette mail-order retailers.

During Monday's hearing, Coppola said the smoke shop has been working to arrange delivery

of cigarettes by a private carrier, at least in this state, Pennsylvania and New Jersey, where

most of its customers live.

Coppola said she had not spoken with Pierce about the ruling, so she did not know if the

smoke shop will resume mailing the cigarettes while the restraining order is in effect or

proceed with another form of delivery.

By signing the law, President Obama angered business people from the Senecas and other

tribes that sell tobacco products.

But other organizations, including the Campaign for Tobacco-Free Kids, rejoiced, calling

the law a landmark step in preventing youngsters from obtaining cigarettes and in averting

billions of dollars in tax evasion.

Along with the constitutional arguments, Pierce's lawyers also claimed that the new law

violates four different treaties, all signed between 1784 and 1842, granting sovereignity to

the Senecas and other tribes.

"The act is overbroad, unduly burdensome and impermissibly vague," Coppola said in court

papers. "Among other things, it requires out-of-state retailers (even those without a physical

presence in the state) to collect the sales and use taxes of states and localities in which

they have no presence."