No. 95-172 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

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. 

COUNSEL OF RECORD: 

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, 1995 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

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 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 

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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. 

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 

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has the necessary standing to challenge such a tax. state ex 7x1. 

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. We have 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 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, 45 L.Ed. 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. 

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Chickasaw 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 a tax." 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 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, 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 on the 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 on business in this state in an 

amount equal to: 

. . 

lb) for each gallon of all other gasoline 

distributed by the distributor within the state. . 

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(i) 24 cents 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 who engages in the business in 

this state of producing, refining, 

manufacturing, or compounding gasoline for 

sale, use, or distribution; 

(b) any person who imports 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 who blends alcohol 

with gasoline. 

Therefore, anyone who distributes 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 on the 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. 

We affirm the District Court's granting of summary judgment 

based on the appellant's lack of standing. 

Affirmed. 
We Concur: 

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I 
Justice James C. Nelson specially concurs. 

I concur with the result of our decision but not in our 

analysis. In determining whether Carter was personally injured by 

the gasoline tax, we analyze where the legal incidence of the tax 

falls. Although the United States Supreme Court 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 a standing issue, and thus, properly resolved the taxation 

issue presented there on the basis of a legal incidence analysis. 

In the instant case, we need not and should not reach the merits, 

but need only affirm the District Court's grant of summary judgment 

based on Carter's lack of standing. Therefore, we should limit our 

analysis to standing and should not implicitly reach the merits of 

Carter's claims by addressing 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 have standing to challenge the 

validity of Montana's gasoline license tax as applied to Indian 

retailers inside the boundaries of the Rocky Boy Reservation. 

Standing is a justiciability doctrine designed to control 

access to the judicial system by determining who is entitled to 

have a case adjudicated. See Olson v. Department of Revenue 

(1986), 223 Mont. 464, 469-70, 726 P.2d 1162, 1166. Originating in 

Article VII, section 4 of the Montana Constitution, the standing 

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doctrine limits judicial power to "cases at law and equity." This 

Court has interpreted "cases at law and equity" to embody the same 

limitations as the Article III "case or controversy" provision in 

the United States Constitution. Olson, 726 P.2d at 1166; Stewart 

v. Bd. of Cty. Comm'rs of Big Horn Cty. (1977), 175 Mont. 197, 201, 

573 P.2d 184, 186. 

The fundamental aspect of standing is that it focuses on the 

party seeking to get a complaint before a court and not on the 

issues the party wishes to have adjudicated. Flast v. Cohen 

(1968), 392 U.S. 83, 99, 88 S.Ct. 1942, 1952 , 20 L.Ed.2d 947, 961. 

Courts approach standing in two ways. The first approach focuses 

on the constitutional provisions of standing and the second 

approach focuses on the prudential restrictions that courts use to 

preserve judicial credibility and to deny standing. Olson, 726 

P.2d at 1166; Valley Forge Christian College v. Americans United 

for Separation of Church and State (1982), 454 U.S. 464, 475, 102 

S.Ct. 752, 760, 70 L.Ed.2d 700, 711. 

At a minimum, the constitutional provisions require that a 

plaintiff be personally injured or be threatened with immediate 

injury by the alleged constitutional or statutory violation. 

m, 726 P.2d at 1166-67; Chovanak v. Matthews (1948), 120 Mont. 

520, 526-27, 188 P.2d 582, 585. Thus, at the threshold of every 

case, especially those where a statutory or constitutional 

violation is alleged to have occurred, is the requirement that the 

plaintiff allege "such a personal stake in the outcome of the 

controversy as to assure that concrete adverseness which sharpens 

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the presentation of issues." Northern Border Pipeline Co. v. State 

(1989), 237 Mont. 117, 129, 772 P.2d 829, 836; Olson, 726 P.2d at 

1166 (quoting Baker v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct. 

691, 703, 7 L.Ed.2d 663, 678). This personal stake requirement is 

dispositive. If a party seeking review is not among the injured, 

that party is not entitled to judicial review. Olson, 726 P.2d at 

1166-67 (citing Sierra Club v. Morton (1972), 405 U.S. 727, 734-35, 

92 S.Ct. 1361, 1366, 31 L.Ed.2d 636, 643); but see Grossman v. 

State, Dept. of Natural Resources (1984), 209 Mont. 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 and drape the taxpayer with standing). 

For example, in Olson, the appellants challenged the 

constitutional validity of certain statutes that require county 

residence to obtain benefits such as obtaining a fishing or hunting 

license or running for county office. The appellants were citizens 

of Montana but did not live within any county boundaries. w, 

726 P.2d at 1166. We held 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 a personal stake in the outcome of the controversy. 

Similarly, Carter challenges the constitutional validity of a 

statute imposing a gasoline license tax. See 5 15-70-204, MCA. 

That statute requires every distributor to pay a license tax for 

the privilege of engaging in and carrying on business within 

Montana. Importantly, the tax does not apply to a retailer. As a 

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retailer, Carter was not among the injured and thus cannot allege 

a personal 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. 

Where the 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 be grounded in analysis that is more 

appropriately directed to the merits of the taxation issues raised 

by Carter's complaint. Accordingly, I specially concur o 

P ly in the 

result of our opinion. 

Justice Terry N. Trieweiler concurs in the foregoing special 

concurrence. 

Justice 

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