Fore v. Mississippi Department of Revenue
90 So. 3d 572
| Miss. | 2012Background
- After Hurricane Katrina, Fore contracted with Harrison County to remove debris for a price per cubic yard.
- MSTC assessed a $1.00 per ton disposal fee on all emergency debris disposal sites.
- Fore appealed the fee assessments through MSTC’s Board of Review and Full Commission, then to Harrison County Chancery Court.
- Governor Barbour issued an Emergency Order authorizing emergency waste disposal sites, including Delancey and Lo-Bouy Road sites.
- MDEQ approved the Delancey and Lo-Bouy Road sites for debris disposal; Fore billed and collected fees from P&J for site use; Fore reported debris volumes using a 0.25 tons per cubic yard conversion.
- The MSTC ultimately assessed Fore a large fee total, penalties, and interest; the chancery court and appellate courts upheld the assessments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Delancey and LoBouy Road sites were commercial nonhazardous waste facilities subject to the $1/ton fee. | Fore argues the sites were emergency/disposal sites not commercial facilities. | MSTC/MDEQ treated the sites as commercial nonhazardous facilities under §17-17-219. | Yes; the sites were commercial nonhazardous facilities and subject to the fee. |
| Whether MSTC’s treatment violated Fore’s equal-protection rights. | Fore claims he was treated differently from similarly situated operators (class of one). | Fore was not similarly situated to others or there was a rational basis for differences. | Fore failed to prove disparate treatment from similarly situated operators; issue lacking merit. |
| Whether Fore, as operator of the Delancey site, was responsible for the entire Delancey-fee liability despite P&J’s use of a portion of the site. | Fore contends P&J’s use of the Delancey site absolves him of some disposal-fee liability. | Fore was authorized to operate the Delancey facility and was compensated for disposal; he remained the operator. | Fore is responsible for the entire Delancey-site disposal fees. |
Key Cases Cited
- Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (greater-scrutiny class-of-one equal-protection claim requires arbitrary, irrational treatment)
- Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) (class-of-one concerns in public-employment context; limits applicability)
- Miss. State Tax Comm’n v. ANR Pipeline Co., 806 So.2d 1081 (Miss. 2001) (standard for reviewing tax assessments; de novo in chancery court)
- City of Jackson v. Perry, 764 So.2d 373 (Miss. 2000) (review of factual findings; substantial evidence standard)
- Bolivar County v. Wal-Mart Stores, Inc., 797 So.2d 790 (Miss. 1999) (emergency-studies/statutory interpretation in emergency context)