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
Opinion Judge:[8] JUSTICE HUNT DELIVERED THE OPINION OF THE COURT.
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
 
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Page 1102

905 P.2d 1102 (Mont. 1995)

274 Mont. 39

Candy Saddler CARTER, Appellant & Plaintiff,

v.

MONTANA DEPARTMENT OF TRANSPORTATION, and State of Montana,

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.

Page 1103

[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.

FACTS

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.

DISCUSSION

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.

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