Ah maybe.............

From AUTO:


August 30, 2012

This morning the WA Supreme Court ruled in favor of AUTO and its members' challenge to the tribal motor fuel tax compacts negotiated by Governor Gregoire. The court reversed a lower court ruling that granted the state's request for dismissal on the grounds that a citizen can not challenge any agreement reached between the state and a treaty tribe. The citizens of Washington have averted a constitutional crisis and the suit is headed back to Grays Harbor County were the case will be heard on its merits.

In the 5-4 decision, the majority opinion discounted many of the States' arguments defending the Governor's compacts with tribal station operators:

• Moreover, the notion that potentially unconstitutional government conduct must be redressed through the legislature is frankly astonishing given the bedrock principle that it is "emphatically the province and duty of the judicial department to say what the law is."
• Sovereign immunity is meant to be raised as a shield by the tribe, not wielded as a sword by the State.

• While the tribes are necessary parties whose joinder is not feasible due to sovereign immunity, in the circumstances of this case they are not indispensable. We reverse the trial court's order of dismissal and hold that this action can proceed without the tribes "in equity and good conscience" under CR 19(b).5.

The largest obstacle we faced (whether or not a citizen could challenge) was cleared today. The facts of the case are fairly clear and we are confident this decision is only the first with more to come.

Some of the key points of the compacts that we predict the state will have trouble addressing before a trial judge include:

• Even though no exemption is found under state or federal law or treaty, the Governor granted the tribes an exemption for 75% of the state motor fuel tax and the state constitution reserves decisions on taxation and exemptions exclusively for the legislature;

• Expenditures out of the state treasury must be appropriated by the Legislature and no appropriation has occurred for the approximately $100 million in payments sent so far to the tribes;

• The 18th amendment requires that all motor taxes be placed into the motor vehicle account and used on public roads and the state has no ability to confirm where all the money has gone; and

• State tax policy may not be discriminatory in its application and the tribal station operators are receiving approximately 28 cents per gallon in payments that are denied all others.

This is truly a major victory for all the citizens and the small businesses that live or operate in the state of Washington.


The decision:

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=856613MAJ.