905 P.2d 1102 (Mont. 1995), 95-172, Carter v. Montana Dept. of Transp.

Docket Nº:95-172.
Citation:905 P.2d 1102, 274 Mont. 39
Party Name:Candy Saddler CARTER, Appellant & Plaintiff, v. MONTANA DEPARTMENT OF TRANSPORTATION, and State of Montana, Respondent & Defendant.
Attorney:[7] For Appellant: Michael B. Austin, Hardin. For Respondent: Joseph P. Mazurek, Attorney General, Sarah Bond, Assistant Attorney General, Helena; Nick A. Rotering, Montana Department of Transportation, Helena.
Case Date:November 13, 1995
Court:Supreme Court of Montana

Page 1102

905 P.2d 1102 (Mont. 1995)

274 Mont. 39

Candy Saddler CARTER, Appellant & Plaintiff,



Respondent & Defendant.

No. 95-172.

Supreme Court of Montana.

November 13, 1995

Submitted on Briefs July 28, 1995.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Dorothy McCarter, Judge presiding.

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[274 Mont. 40] Michael B. Austin, Hardin, for Appellant.

Joseph P. Mazurek, Attorney General, Sarah Bond, Assistant Attorney General, Helena, Nick A. Rotering, Montana Department of Transportation, Helena, for Respondent.

HUNT, Justice.

Plaintiff and appellant, Candy Carter appeals a decision and order from the First Judicial District Court, Lewis and Clark County, granting the defendant, the Montana Department of Transportation, summary judgment based on the appellant's lack of standing.

We affirm.

The sole issue on appeal is whether the District Court properly granted the Montana Department of Transportation summary judgment.


The appellant, Ms. Carter, is an enrolled member of the Chippewa-Cree Tribe of the Rocky Boy reservation. She and her partner own and operate the "Pastime," a retail gas and convenience store located [274 Mont. 41] outside of Box Elder. Carter possesses a business license issued by the Chippewa-Cree. She is not licensed by the State of Montana as a gasoline distributor, nor is she an Indian Trader licensed by the Bureau of Indian Affairs. Carter receives her gas from the Montana Refining Company (MRC). MRC is a resident motor fuel distributor out of Great Falls.

The record is unclear as to when Ms. Carter first contested the motor fuel tax, but the State does have a letter of protest from July 1991. At that time, Carter applied for a tax refund for all gasoline sold at her gas station in the years 1988 through 1990. The request was denied by the Montana Department of Transportation (MDT), so Carter then filed an appeal with the State Tax Appeal Board. She did not complete this appeal procedure.

On October 6, 1992, appellant filed an action against the MDT seeking declaratory and injunctive relief to have the court declare the State was without jurisdiction to require either the distributor or her to pay the motor fuel tax. Appellant also requested a refund of the taxes paid between 1988 and 1992.

In her complaint, Carter alleged the State's motor fuel tax was unconstitutional as applied to sales to Indian retailers (Tribal members) inside the boundaries of the Rocky Boy reservation because such sales are preempted by federal law. The District Court granted defendant's motion for summary judgment.


Our standard of review on a grant of summary judgment is identical to that of a trial court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Courts use summary judgment to encourage judicial economy through the elimination of unnecessary trial, delay and expense. Engebretson v. Putnam (1977), 174 Mont. 409, 571 P.2d 368.

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The District Court granted summary judgment in favor of the defendant for lack of the requisite standing to bring such a challenge. Initially, we acknowledge that a taxpayer who is directly and adversely affected by an assessment or levy of taxes has the necessary standing to challenge such a tax. State ex rel. Conrad v. Managhan (1971), 157 Mont. 335, 338, 485 P.2d 948, 950.

Outside these special circumstances, the standing requirement for a party challenging the validity of statutes is firmly established. [274 Mont. 42] We have held that standing is the "threshold of every case, especially those where a statutory or constitutional violation is claimed to have occurred...." Olson v. Department of Revenue, 223 Mont. 464, 469, 726 P.2d 1162, 1166. The injury alleged must be personal to the plaintiff, as distinguished from an injury suffered by the community in general. Warth v. Seldin (1975), 422 U.S. 490, 502, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343.

In this case, Carter contends she was personally affected by the tax because the tax affects her distributor, who then imposes the tax on her, which she in turn imposes on her customers. The District Court concluded Carter was not personally aggrieved by the gasoline tax. The court found whether Carter was personally harmed by the gasoline tax statutes depended on where the "legal incidence" of the tax fell. The concept of legal incidence differs from the question of where the economic burden falls. United States v. Delaware (3rd Cir.1992), 958 F.2d 555, 561.

Shortly before this case was submitted on briefs, the United States Supreme Court decided a case discussing "legal incidence." The Court considered the taxing authority of the State of Oklahoma over the Chickasaw Nation, specifically whether the state could impose a motor fuel excise tax upon fuel sold by Chickasaw Nation retail stores on Tribal trust land. Oklahoma Tax Commission v. Chickasaw Nation (1995), 515 U.S. 450, 115 S.Ct. 2214, 132 L.Ed.2d 400. In that case the Court held, "[t]he initial and frequently dispositive question in Indian tax cases ... is who bears the legal incidence of a tax." Chickasaw, 515 U.S. at ----, 115 S.Ct. at 2220.

As part of its analysis the Court looked at the language of the Oklahoma statute. The relevant statute in that case did not expressly identify who was to bear the legal incidence of the tax, whether it was the distributor, the retailer, or consumers; nor did the statute contain a "pass through" provision. A "pass through" provision would require distributors and retailers to pass on the cost of the tax to the consumer. Chickasaw, at ----, 115 S.Ct. at 2221. The Oklahoma statutes were found to have ensured that the distributor was not burdened with the tax; distributors acted merely as "transmittal agents" for taxes imposed on the retailer. Chickasaw, at ----, 115 S.Ct. at 2222. The incidence of the tax rested with the retailer. Accordingly, since the retailer was Tribal, the tax infringed upon the right of Tribal self government. See,...

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