No. 95-172 IN THESUPREMECOURTOFTHESTATE OFMONTANA 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.

COUNSELOFRECORD:

For Appellant: Michael B. Austin, Hardin, Montana For Respondent: Joseph P. Mazurek, Attorney General, Sarah Bond, Assistant Attorney General, Helena, Montana; Nick A. Rotering, Montana Department of Transportation, Helena, Montana

Filed: Submitted on Briefs: July 28, 1995 Decided: November 13, 1995Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Plaintiff and appellant, Candy Carter appeals adecision and order from the First Judicial District Court, Lewis and Clark County, granting the defendant, the Montana Department of Transportation, summary judgment based onthe appellant's lack of standing. Weaffirm. 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 ownandoperate the "Pastime," aretail gas and convenience store located outside of Box Elder. Carter possesses abusiness license issued by the Chippewa-Cree. She is not licensed by the State of Montana as agasoline distributor, nor is she an Indian Trader licensed by the Bureau of Indian Affairs. Carter receives her gas from the Montana Refining Company (MRC). MRCis aresident 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 atax refund for all gasoline sold at her gas station in the years 1988 through 1990. The request was denied by the Montana Department of

2Transportation (MDT), soCarter then filed anappeal with the State

TaxAppeal Board. Shedid not complete this appeal procedure. OnOctober 6, 1992, appellant filed anaction against the MDT seeking declaratory andinjunctive relief tohavethe court declare the State was without jurisdiction to require either the distributor or her to pay the motor fuel tax. Appellant also requested arefund of the taxes paid between 1988and1992. In her complaint, Carter alleged the State's motor fuel tax
was unconstitutional as applied to sales to Indian retailers (Tribal members) inside theboundaries of the RockyBoyreservation because such sales are preempted by federal law. The District Court granted defendant's motion for summaryjudgment. DISCUSSION Our standard of review on agrant of summary judgment is identical to that of atrial court. Minnie v. City of Roundup (1993), 257Mont. 429, 431, 849P.2d 212, 214. Summaryjudgment is proper only whennogenuine issue of material fact exists andthe moving party is entitled to judgment as amatter of law. Rule 56(c), M.R.Civ.P. Courts usesummaryjudgment toencourage judicial economy through the elimination of unnecessary trial, delay and expense. Engebretson v. Putnam(1977), 174Mont. 409, 571P.2d 368. TheDistrict Court granted summaryjudgment 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 andadversely affected byanassessment or levy of taxes

3has the necessary standing to challenge such atax. state ex 7x1.

Conrad v. Managhan (1971), 157Mont. 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. Wehave held that standing is the "threshold of every case, especially those where a statutory or constitutional violation is claimed to have occurred.

. . .'I Olson v. Department of Revenue, 223 Mont. 464, 469, 726 P.2d 1162, 1166. The injury alleged must bepersonal to the plaintiff, asdistinguished from an injury suffered by the community in general. Warth v. Seldin (1975), 422 U.S. 490, 502, 95S.Ct.2197, 45 L.Ed. 343. In this case, Carter contends she was personally affected by the tax because the tax affects her distributor, whothen imposes the tax on her, which she in turn imposes on her customers. The District Court concluded Carter wasnot personally aggrieved bythe gasoline tax. The court found whether Carter waspersonally 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 onbriefs, the United States Supreme Court decided acase discussing "legal incidence." The Court considered the taxing authority of the State of Oklahoma
over the Chickasaw Nation, specifically whether the state could impose amotor fuel excise tax upon fuel sold by Chickasaw Nation retail stores on Tribal trust land. Oklahoma Tax Commission v.
4Chickasaw Nation (1995), ~ U.S. , 115 S.Ct. 2214, 132

L.Ed.2d 400. In that case the Court held, '[tlhe initial and frequently dispositive question in Indian tax cases
. . . is who bears the legal incidence of atax." Chickasaw, 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 whowasto bear the legal incidence of the tax, whether it wasthe 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 onthe cost of the tax to the consumer. Chickasaw, 115 S.Ct at 2221. The Oklahoma statutes were found to have ensured that the distributer
was not burdened with the tax; distributors acted merely as "transmittal agents I'for taxes imposed onthe retailer. Chickasaw, 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, e.g. Bryan
v. Itasca County (1976), 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710. Montana differs from Oklahoma in this respect. In Montana the relevant statute concerning the gasoline tax reads as follows:
15-70-204. (Temporary) Gasoline license tax -rate. (1) Every distributor shall pay to the department of transportation a license tax for the privilege of engaging in and carrying onbusiness in this state in an amount equal to:

. .lb) for each gallon of all other gasoline distributed by the distributor within the state.

. 5(i) 24cents per gallon beginning July 1, 1993; and (ii) 27 cents per gallon beginning July 1, 1994.
The statute clearly states the tax is to be paid by the distributor. The distributor is defined in the statutes as: (6) "Distributor" means: (a) any person whoengages in the business in this state of producing, refining, manufacturing, or compounding gasoline for sale, use, or distribution; (b) any person whoimports gasoline for sale, use, or distribution; (c) any person who engages in the wholesale distribution of gasoline in this state and chooses to become licensed to assume the Montana state gasoline tax liability; Cd) any exporter as defined in subsection (8); (e) any dealer licensed as of January 1, 1969, except a dealer at an established airport; (f) any person in Montana whoblends alcohol with gasoline. Therefore, anyone whodistributes gas and licenses themselves as a distributor is subject to the tax. In this case the retailer is not burdened with the tax because Carter is not a distributor. Since the dispositive language in Montana's statute clearly places the burden onthe distributor, the legal incidence of the tax does not fall on Carter. Since Carter is unable to show she has been personally affected by this tax, she lacks the necessary standing to pursue this claim. Therefore summary judgment was appropriate. Weaffirm the District Court's granting of summary judgment based onthe appellant's lack of standing. Affirmed.WeConcur:

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IJustice JamesC. Nelson specially concurs.

I concur with the result of our decision but not in our analysis. In determining whether Carter waspersonally injured by the gasoline tax, weanalyze where the legal incidence of the tax falls. Although the United States SupremeCourt noted in Chickasaw that often the dispositive question in Indian tax cases is who bears the legal incidence of the tax, the legal incidence analysis goes to the merits of the taxation issue. Chickasaw did not involve astanding issue, andthus, properly resolved the taxation issue presented there onthe basis of alegal incidence analysis. Inthe instant case, weneednot andshould not reach the merits, but needonly affirm the District Court's grant of summaryjudgment basedonCarter's lack of standing. Therefore, we should limit our analysis to standing andshould not implicitly reach the merits of Carter's claims byaddressing the legal incidence of the tax. The sole issue on review is whether the District Court properly granted summary judgment to the Montana Department of Transportation. The District Court granted summary judgment because it found that Carter did not havestanding to challenge the validity of Montana's gasoline license tax as applied to Indian retailers inside the boundaries of the Rocky BoyReservation. Standing is ajusticiability doctrine designed to control
access to the judicial system by determining whois entitled to have a case adjudicated. SeeOlson v. Department of Revenue (1986), 223Mont. 464, 469-70, 726P.2d 1162, 1166. Originating in Article VII, section 4of the Montana Constitution, the standing 8doctrine limits judicial powerto "cases at lawandequity." This

Court hasinterpreted "cases at lawandequity" to embodythe same limitations asthe Article III "case or controversy" provision in the United States Constitution. Olson, 726P.2d at 1166; Stewart
v. Bd. of Cty. Comm'rsof BigHornCty. (1977), 175Mont. 197, 201, 573P.2d 184, 186. Thefundamental aspect of standing is that it focuses onthe party seeking to get acomplaint before acourt andnot onthe issues the party wishes to have adjudicated. Flast v. Cohen (1968), 392U.S. 83, 99, 88S.Ct. 1942, 1952,20L.Ed.2d 947, 961. Courts approach standing in twoways. Thefirst approach focuses
on the constitutional provisions of standing and the second approach focuses onthe prudential restrictions that courts useto preserve judicial credibility and to deny standing. Olson, 726 P.2d at 1166; Valley Forge Christian College v. Americans United for Separation of Church andState (1982), 454U.S. 464, 475, 102 S.Ct. 752, 760, 70L.Ed.2d 700, 711. At aminimum, the constitutional provisions require that a plaintiff bepersonally injured or be threatened with immediate injury by the alleged constitutional or statutory violation. m, 726P.2d at 1166-67; Chovanakv. Matthews (1948), 120Mont. 520, 526-27, 188P.2d 582, 585. Thus, at the threshold of every case, especially those where a statutory or constitutional violation is alleged to haveoccurred, is the requirement that the plaintiff allege "such apersonal stake in the outcome of the controversy asto assure that concrete adverseness which sharpens
9the presentation of issues." Northern Border Pipeline Co.v. State

(1989), 237Mont. 117, 129, 772P.2d 829, 836; Olson, 726P.2d at 1166 (quoting Baker v. Carr (1962), 369U.S. 186, 204, 82S.Ct. 691, 703, 7L.Ed.2d 663, 678). This personal stake requirement is dispositive. If aparty seeking review is not amongthe injured, that party is not entitled to judicial review. Olson, 726P.2d at 1166-67 (citing Sierra Clubv. Morton (1972), 405U.S. 727, 734-35, 92S.Ct. 1361, 1366, 31L.Ed.2d 636, 643); but see Grossman v. State, Dept. of Natural Resources (1984), 209Mont. 427, 438-39, 682 P.2d 1319, 1325 (holding that in special circumstances, presenting issues of an urgent nature, this Court will accept original jurisdiction anddrape the taxpayer with standing). For example, in Olson, the appellants challenged the constitutional validity of certain statutes that require county residence to obtain benefits suchasobtaining afishing orhunting license orrunning for county office. Theappellants were citizens of Montana but did not live within anycounty boundaries. w, 726P.2d at 1166. Weheld that the appellants did not allege that the statutes injured them personally or threatened them with immediate injury. Therefore, they did not meet the threshold requirement of apersonal stake inthe outcome of the controversy. Similarly, Carter challenges the constitutional validity of a statute imposing agasoline license tax. See515-70-204, MCA. That statute requires every distributor to pay alicense tax for the privilege of engaging in and carrying on business within Montana. Importantly, the tax doesnot apply to aretailer. Asa
10retailer, Carter wasnot amongthe injured andthus cannot allege

apersonal injury. Because she has not alleged the requisite personal stake in the outcome of the controversy, she is not a proper party before the court. Wherethe legal incidence of the tax falls is immaterial for purposes of resolving the standing issue in this case, and our decision to affirm should not begrounded in analysis that is more appropriately directed tothe merits of the taxation issues raised byCarter's complaint. Accordingly, Ispecially concur o Ply inthe result of our opinion.

Justice Terry N. Trieweiler concurs in the foregoing special concurrence. Justice

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