COUGAR DEN, INC., а Yakama Nation corporation, Respondent, v. WASHINGTON STATE DEPARTMENT OF LICENSING, Appellant.
No. 92289-6
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MAR 16 2017
JOHNSON, J.; FAIRHURST, C.J. (dissenting)
En Banc
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JOHNSON, J.—Article III of the Yakama Nation Treaty of 1855 provides in pertinent part:
[I]f necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right; in common with citizens
of the United States, to travel upon all public highways.
Treaty with the Yakamas, 12 Stat. 951, 952-53 (1855).
The issue in this case centers on the interpretation of the “right to travel” provision in the treaty, in the context of importing fuel into Washington State. The Washington State Department of Licensing (Department) challenges Cougar Den Inc.‘s importation of fuel without holding an importer‘s license and without paying state fuel taxes under former chapter
An administrative law judge (ALJ) ruled in favor of Cougar Den, holding that the right to trаvel on highways should be interpreted to preempt the tax. The Department‘s director, Pat Kohler, reversed. On appeal, the Yakima County Superior Court reversed the director‘s order and ruled in favor of Cougar Den. We affirm.
FACTS AND PROCEDURAL HISTORY
Cougar Den is a Confederated Tribes and Bands of the Yakama Nation (Yakama Nation) corporation that transports fuel from Oregon to the Yakama Indian Reservation, where it is sold. Kip Ramsey, Cougar Den‘s owner and president, is an enrolled member of the Yakama Nation.
Cougar Den began transporting fuel in 2013 from Oregon to the Yakama Indian Reservation. Cougar Den contracted with KAG West, a trucking company, to transport the fuel into Washington from March 2013 to October 2013.
On December 9, 2013, the Department issued assessment number 756M against Cougar Den, demanding $3.6 million in unpаid taxes, penalties, and licensing fees for hauling the fuel across state lines. Cougar Den appealed the assessment to the Department‘s ALJ, who held in his initial order that the assessment was an impermissible restriction under the treaty. The Department sought review of the ALJ‘s initial order. Upon review, the director of the Department reversed the ALJ and entered findings of fact and conclusions of law.
The director held that the Yakama treaty did not preempt the taxes, license requirements, and penalties sought against Cougar Den. Cougar Den then petitioned for review of the final order by the Department. The Yakima County Superior Court, sitting in an appellate capacity, reversed the director‘s order and held that the taxation violated the tribe‘s right to travel. The Department appealed the superior court‘s decision and sought direct review under RAP 4.2(a)(2). We granted direct review.
ANALYSIS
This case began as a challenge to an administrative order; therefore, review is governed by chapter
Ins. Co. v. Office of Ins. Comm‘r, 178 Wn.2d 120, 133, 309 P.3d 372 (2013) (“The agency‘s interpretation of pure questions of law is not accorded deference.” (citing Hunter v. Univ. of Wash., 101 Wn. App. 283, 292, 2 P.3d 1022 (2000))). This court sits in the same position as the superior court, reviewing the standards of the Washington Administrative Procedure Act, chapter
Washington State law imposes a tax on fuels used for the propulsion of motor vehicles on the highways of the state. In 2013, when Cougar Den transported fuel into the
The Yakama Indian Reservation is a federally recognized Indian tribal reservation located within the state of Washington. Outside an Indian reservation, Indian citizens are subject to state tax laws, “[a]bsent express federal law to the contrary.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S. Ct. 1267, 36 L. Ed. 2d 114 (1973). A treaty constitutes an express federal law. There is no dispute that
the taxes and licensing requirements would apply if the treaty provision does not apply here. However, Cougar Den asserts that the right to travel provision in the treaty precludes the State from demanding unpaid taxes, penalties, and licensing fees for hauling the fuel across state lines (relying on treaty language that “the right of way . . . is secured to them . . . to travel upon all public highways“).
The United States Supreme Court has established a rule of treaty interpretation: Indian treaties must be interpreted as the Indians would have understood them.
The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm‘s-length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court hаs often held that treaties with the Indians must be interpreted as they would have understood them.
Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31, 90 S. Ct. 1328, 25 L. Ed. 2d 615 (1970).
It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.
Tulee v. Washington, 315 U.S. 681, 684-85, 62 S. Ct. 862, 86 L. Ed. 1115 (1942).
The Ninth Circuit has recognized this rule of treaty construction. See United States v. Smiskin, 487 F.3d 1260, 1264 (9th Cir. 2007); Cree v. Flores, 157 F.3d 762, 769 (9th Cir. 1998) (Cree II). Treaties are broadly interpreted, with doubtful or ambiguous expressions resolved in the Indians’ favor.
The Department argues that Cougar Den‘s reading of the right to travel provision is overly broad. It asserts that the Ninth Circuit cases involving the right to travel forbid the State from specifically restricting the right to travеl on a highway, but allow the State to restrict or regulate a specific good that is incidentally brought over a highway. The Department argues that the treaty does not preempt Washington State fuel taxes in this case. Both parties here support their arguments by citing several Ninth Circuit cases.
The Department‘s interpretation of the treaty provision ignores the historical significance of travel to the Yakama Indians and the rule of treaty interpretation established by the United States Supreme Court. In ruling in Cougar Den‘s favor, both the ALJ and the Yakima County Superior Court based their decisions on the history of the right to travel provision of the treaty, relying on the findings of fact and conclusions of law from Yakama Indian Nation v. Flores, 955 F. Supp. 1229 (E.D. Wash. 1997).
The factual record regarding the treaty interpretation of the historical meaning of the right tо travel relied on below was developed in a federal action, Cree II.3
Because
At the time the treaty was drafted, agents of the United States knew of the Yakamas’ reliance on travel. During negotiations, the Yakamas’ right to travel off reservation had been repeatedly broached, and assurances were made that entering into the treaty would not infringe on or hinder their tribal practices. Promises were made to protect the Indians from “‘bad white men‘” if the tribes agreed to live within designated reservations. Yakama Indian Nation, 955 F. Supp. at 1243. Agents of the United States thus repeatedly emphasized in negotiations that tribal members would retain the “‘same liberties . . . to go on the roads to markеt.‘” Yakama Indian Nation, 955 F. Supp. at 1244. The court further determined that “both parties to the treaty expressly intended that the Yakamas would retain their right to travel outside reservation boundaries, with no conditions attached.” Yakama Indian Nation, 955 F. Supp. at 1251. The treaty was presented as a means to preserve Yakama customs and protect against further encroachment by white settlers. There was no mention of any sort of restriction on hunting, fishing, or travel other than the condition that the government be permitted to construct wagon roads and a railroad through the reservation. Finally, the court found that “the Treaty was clearly intended to reserve to the Yakamas’ right to travel on the public highways to engage in future trading endeavors.” Yakama Indian Nation, 955 F. Supp. at 1253.
In reliance on these vital promises, the Yakamas forever ceded 90 percent of their land in exchange for these rights. Yakamа Nation thus understandably assigned a special significance to each part of the treaty at the time of the signing and continues to view the treaty as a sacred document today. It is important to note that although the United States negotiated with many Northwest tribes, only the treaties with the Yakamas and Nez Perce contained highway clauses like this one. Cree II, 157 F.3d at 772.
With the historical importance of the right to travel in mind, on review, the Ninth Circuit adopted the findings and treaty interpretation from the district court and held that the treaty exempted the Yakama Indians from various Washington truck license and overweight permit fees. In that case, the plaintiff, Yakama Indian Nation, sold timber and hauled logs from within reservation lands to off-reservation mills. Defendants were state officers authorized to issue traffic citаtions for violations of state vehicle registration, licensing, and permitting statutes. Plaintiff brought suit after the officers issued citations for violation of these statutes. In determining whether the treaty exempted Yakama Indian Nation from the fees, the court considered the historical context of the treaty and recognized the significance of travel to the Yakamas. The court agreed with the district court‘s finding that the treaty secured for the Yakamas’ the right to use future roads and to trade their goods. The court held that the treaty exempted the tribe from truck license and permitting fees. Cree II, 157 F.3d at 774.
Washington State requires wholesalers to affix either a “tax paid” or “tax exempt” stamp to cigarette packaging prior to sale. See
Again, to determine whether the treaty precluded the State from prosecuting the Smiskins’ violation of the State‘s prenotification requirement, the Ninth Circuit looked to the right to travel provision of the treaty. The court held that the Smiskins were not required to notify anyone prior to transporting goods to market because the treaty “‘expressly intended that the Yakamas would retain their right to travel outside reservation boundaries, with no conditions attached.‘” Smiskin, 487 F.3d at 1266 (quoting Yakama Indian Nation, 955 F. Supp. at 1251). It held that applying a prenotification requirement was a condition on travel that violated the Yakamas’ treaty right to transport goods to market without restriction.
The court noted the “tremendous importance” of the right to travel provision and “refuse[d] to draw what would amount to an arbitrary line between travel and trade.” Smiskin, 487 F.3d at 1265-66. “[W]hether the goods at issue are timber or tobacco products, the right to travel overlaps with the right to trade under the Yakama Treaty such that excluding commercial exchanges from its purview would effectively abrogate our decision in Cree II and render the Right to Travel provision truly impotent.” Smiskin, 487 F.3d at 1266-67 (footnote omitted).
Of importance in the decision is the court‘s discussion of the regulatory exception. In resolving conflicts between state laws and Indian treaties, the United States Supreme Court has stated that pure regulatory restrictions may be validly applied to tribal members. The State in Smiskin argued that the State‘s tax collection effects had a regulatory purpose. However, the court found that Washington‘s stated purpose for requiring cigarette stamps, and hence for requiring notice before unstamped cigarettes are transported within the State, was to “‘enforce collection of the tax hereby levied.‘” Smiskin, 487 F.3d at 1269 (quoting
More recently, in 2014, the Ninth Circuit addressed the right to travel provision again. The Deрartment relies on King Mountain Tobacco Co. v. McKenna, 768 F.3d 989 (9th Cir. 2014), to assert that the trial court interpreted the right to travel provision too broadly. In King Mountain, the plaintiff was a private tobacco company owned by Delbert Wheeler, an enrolled member of the Yakama Nation. King Mountain sought relief from application of Washington‘s escrow statute, which required King Mountain to place money into escrow to reimburse the State for health care costs related to the use of tobacco products. The court analyzed the treaty again and held that the plain text reserved to
The Department argues that this case is analogous to King Mountain because both companies “claim[] a right to engage in trade in addition to or above and beyond a right to travel upon the highways.” Appellant‘s Opening Br. at 27. The Department asserts that Cougar Den is not facing a tax for “‘using public highways . . . . [Rather, it] is being taxed for importing fuel.‘” Appellant‘s Opening Br. at 27 (quoting Clerk‘s Papers at 1008). The Department argues that Cougar Den relies “heavily on dicta” in Smiskin. Appellant‘s Opening Br. at 29. The Department argues that in Smiskin, the State restricted the right to travel on the highway, whereas here, the State is regulating fuel. The Department argues, and the Director agreed, that the taxes are assessed based on incidents of ownership or possession of fuel, and not incident to use of or travel on the roads or highways. It distinguishes Smiskin by asserting that Cougar Den does not need a fuel importer licеnse in order to use public highways. “Rather, Cougar Den needs a fuel importer license to engage in business as a fuel trader.” Appellant‘s Opening Br. at 30. The “tax applies without regard to travel on a highway,” and “Cougar Den happens to hire trucks,” but “[t]he tax is not a condition or restriction on Cougar Den‘s use of highways.” Appellant‘s Opening Br. at 30, 31. It argues that the tax is imposed at the border and is assessed regardless of whether Cougar Den uses the highway.
The Department‘s argument is unpersuasive. Smiskin is nearly identical to this case. In both cases, the State placed a condition on travel that affected the Yakamas’ treaty right to transport goods to market without restriction. The difference between Smiskin and King Mountain is that in King Mountain, travel was not at issue. In King Mountain, the court held under the facts that “there is no right to trade in the Yakama Treaty.” King Mountain, 768 F.3d at 998. Where trade does not involve travel on public highways, thе right to travel provision in the treaty is not implicated. Here, travel on public highways is directly at issue because the tax was an importation tax. The fact that the tax is imposed at the border and is assessed regardless of whether Cougar Den uses the highway is immaterial because, in this case, it was impossible for Cougar Den to import fuel without using the highway.
In addition, the tax does not, as the State argues, fall under the regulatory exception. In Smiskin, the purpose of the notice requirement was the collection of taxes on the transported goods. The prenotification requirement was triggered by the transportation of cigarettes into the state. Likewise, here, the Department requires that companies obtain a license prior to hauling goods into the state: the purpose of the licensing requirement is to collect taxes. We hold that the right to travel provision in the treaty protects the Tribe‘s historical practice of using the roads to engage in trade and commerce.
Finally, the Department argues that applying the Ninth Circuit‘s reasoning would lead to “unimagined and unintended preemption of fundamental state powers.” Appellant‘s Opening Br. at 32. The Department noted that the superior court‘s reasoning “could allow Yakama tribal members to avoid state laws that regulate goods by simply contriving to possess the goods on public highways.” Appellant‘s Opening Br. at 33. An example the Department gave was that Yakama tribal members could avoid the law barring a felon from possessing a firearm simply because by traveling on a public highway, the treaty preempts state law. This same argument was made by the Defendants in Smiskin: if affirmed, the court‘s ruling would “preclude the State of Washington and the federal government from regulating tribal transportation of other ‘restricted goods,’ such as illegal narcotics and ‘forbidden fruits
“The Yakama Nation is a sovereign nation, with its own government, laws and courts, not a rogue organization or menace to civil order. The Yakama Nation does not and never has asserted that its members have a right under its treaty to traffic in narcotics. For the government of the United States to be suggesting оtherwise is irresponsible.
“The Yakama Nation must and will intercede as litigant or amicus to protect its members’ treaty right to travel when the federal government overreaches, as it has here. But the Nation has no interest in promoting, condoning, or protecting activities by its members that pose real dangers to public health, public safety, natural resources, or public infrastructure. The Nation has no such interest not only because irresponsible overreaching on its part would likely prompt Congress to exercise its constitutional/ political power to abrogate or limit the treaty right to travel, but also because the Yakama Nation and its members share the interest all citizens have in public health, public safety, conservation and equitable exploitation of natural resources, and adequate public infrastructure.”
Smiskin, 487 F.3d at 1271. We agree.
We аlso note that this case does not present the “parade of horribles” concern raised by the State. In interpreting the treaty, we are bound to read the provisions as the Tribe understood them. As noted, the right to travel provision appears to be unique to the Yakama and Nez Perce tribes. If the State has concerns about this treaty provision, only Congress can revise or restrict the provisions, not this court.
As determined by the federal courts, any trade, traveling, and importation that requires the use of public roads fall within the scope of the right to travel provision of the treaty. The Department taxes the importation of fuel, which is the transportation of fuel. Here, it was simply not possible for Cougar Den to import fuel without traveling or transporting that fuel on public highways. Basеd on the historical interpretation of the Tribe‘s essential need to travel extensively for trade purposes, this right is protected by the treaty.4
We affirm.
JOHNSON, J.
WE CONCUR:
MADSEN, J.
STEPHENS, J.
GONZÁLEZ, J.
YU, J.
Cougar Den, Inc. v. Dep‘t of Licensing
No. 92289-6
Fairhurst, C.J. (dissenting)
FAIRHURST, C.J. (dissenting)—Washington‘s fuel excise tax burdens trade—the first instance of wholesale possession of fuel within Washington—not fuel transport. The Confederated Tribes and Bands of the Yakama Nation‘s (Yakama Nation) “right . . . to travel,” as described in article III of their treaty, Treaty with the Yakamas, 12 Stat. 951, 953 (1855) (treaty right to travel), is not a right to trade. The majority‘s holding, if taken to its logical conclusion, would create a hole, bigger than that required to drive a tanker truck, in Washington‘s ability to tax goods consumed within the state, without legal basis. Therefore, I respectfully dissent.
“Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S. Ct. 1267, 36 L. Ed. 2d 1114 (1973). This includes state fuel excise taxes. Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 97, 126 S. Ct. 676, 163 L. Ed. 2d 429 (2005) The majority hоlds that the treaty right to travel preempts Washington‘s motor vehicle fuel excise tax, former chapter
A. Former chapters 82.36 and 82.38 RCW represent a tax on the wholesale possession, not transportation, of fuel
The majority reaches its holding after finding that Washington‘s fuel excise tax regime “taxes the importation of fuel, which is the transportation of fuel.” Majority at 16. But “import,” as used here, is a term of art not requiring transportation of any kind. Former
Washington first levied an excise tax on motor vehicle fuel in 1921. Auto. United Trades Org. v. State, 183 Wn.2d 842, 845, 357 P.3d 615 (2015) (citing LAWS OF 1921, ch. 173, § 2). Until 1999, retailers were primarily responsible for paying the tax. Id. at 847. To improve compliance and reduce administrаtive costs, Washington shifted the reporting and collection burden to the suppliers at the top of the fuel supply chain in 1999. S.B. REP. ON SUBSTITUTE H.B. 2659, at 1-2, 55th Leg., Reg. Sess. (Wash. 1998).2
Refiners and terminal operators were now charged with collecting, reporting, and remitting excise tax when fuel was removed “from a terminal ... at the rack,” LAWS OF 1998, ch. 176, § 7(2)(a) (formatting omitted), or “from a refinery” by “bulk transfer” or “refinery rack,” id. § 7(2)(b)(i), (ii) (formatting omitted). “‘Rack‘” is defined as a “mechanism for delivering ... fuel from a refinery or terminal.”3 Id. §§ 6(23), 50(20) (formatting omitted). But distributors, and ultimately retailers, remained burdened with paying the tax. Squaxin Island Tribe v. Stephens, 400 F. Supp. 2d 1250, 1261 (W.D. Wash. 2005). They were required to reimburse refiners and terminal operators for tax those
In 2007, the legislature revised the statute to address the opportunity Squaxin Island Tribe, 400 F. Supp. 2d at 1250, gave tribal retailers operating on Indian lands to avoid the imposition of Washington‘s fuel excise tax for their fuel sales to both tribal and nontribal members.5 S.B. REP. ON S.B. 5272, at 1-2, 60th Leg., Reg. Sess. (Wash. 2007). Under the revised 2007 regime, those at the top of the supply chain—refiners and terminal operators—would now be solely responsible for the payment of tax when fuel is removed from their rack.6 Id.; LAWS OF 2007, ch. 515, §§ 2, 6, 9, 18, 21. They would no longer prepay tax on behalf of the distributors and retailers they sold to. Id. §§ 4, 23.7 Should there be any question, the legislature also added the following language: “It is the intent and purpose ... that the tax shall be imposed at the time and place of the first taxable event and upon the first taxable person within this state.” Id. at §§ 20, 33 (emphasis added); former
The legislature made another change in 2007 that reinforces this notion. From 1999 through 2007, tax applied to imported motor vehicle fuel only when that fuel was imported for purposes of “sale, consumption, use, or storage” within Washington. LAWS OF 1998, ch. 176, § 7(2)(c) (formatting omitted). Beginning in 2007, all imported motor vehicle fuel would be subject to tax, regardless of the purpose for which it was imported.8 LAWS OF 2007, ch. 515, § 2(2)(c); former
This history further demonstrates the legislature‘s intent—to impose tax at the highest level possible in the supply chain. For importation activities, this would be the first instance of wholesale possession of fuel within Washington. I fail to see how such a scheme directly implicates travel.
B. The Yakama Nation‘s treaty right to travel applies to trade only when it cannot be meaningfully separated from travel, not when travel is merely necessary for trade
Both Smiskin and King Mountain provide that a treaty right to travel applies to trade only when Washington law imposes a limitation on travel and trade, and the two cannot be meaningfully separated. United States v. Smiskin, 487 F.3d 1260, 1266 (9th Cir. 2007); King Mountain Tobacco Co. v. McKenna, 768 F.3d 989, 997-98 (9th Cir. 2014). Such is not the case with Washington‘s fuel excise tax. The majority fails to see this distinction and, instead, concludes that Cougar Den‘s trading activity is exempt from Washington‘s fuel excise tax merely because travel is necessary for trade. But neither Smiskin nor King Mountain held this to be a relevant consideration.
At issue in Smiskin was the application of the contraband cigarette trafficking act (CCTA),
In ruling for Smiskin, the United States Court of Appeals for the Ninth Circuit held that his treaty right to travel preempted Washington‘s transportation notice requirement because the right includes the right to “‘transport goods to market’ for ‘trade and other purposes‘” and the notice requirement burdened such transport. Smiskin, 487 F.3d at 1266 (quoting Cree v. Flores, 157 F.3d 762, 769 (9th Cir. 1998)). The court noted that when “the right to travel overlaps with the right to trade ... such that excluding commercial exchanges ... would effectively abrogate our [priоr decisions] and render the Right to Travel provision truly impotent,” it should not “draw what would amount to an arbitrary line between travel and trade.” Id. at 1266-67. But Smiskin does not stand for the proposition the majority asserts—the Yakama Nation‘s treaty right to travel is a de facto right to trade simply because travel is necessary for trade. Indeed, a reading of King Mountain confirms the opposite to be true. 768 F.3d at 989. Travel was necessary for the trade at issue in King Mountain, yet the Ninth Circuit found the state obligation burdened only trade, rather than travel and, therefore, was not preempted by the Yakama Nation‘s treaty right to travel. Id. at 997-98. Smiskin simply stands for the proposition that when travel and trade cannot be meaningfully separated within a state scheme, a Yakama Nation member‘s treaty right to travel preempts both aspects of that scheme.
The state obligation in King Mountain arose from a Washington statute requiring tobacco product manufaсturers to place into escrow funds to reimburse Washington for health care costs associated with the tobacco products they sold to Washington consumers. Id. at 991-92;
Cougar Den and amicus make similar arguments as King Mountain attempted to make—the treaty applies equally to trade and travel. Resp‘t‘s Br. at 24-26; Amicus Curiae Br. of Yakama Nation at 12-13; see King Mountain, 768 F.3d at 992 (King Mountain asserts treaty right applies to “state eсonomic regulation“). But this is not so. The treaty right applies to trade only if inextricably linked to travel. Otherwise, the argument fails. Smiskin, 487 F.3d at 1266. As a result, it should fail here, as it failed in King Mountain, 768 F.3d at 997-98.
The escrow payment in King Mountain had nothing to do with travel, other than to impose a financial burden on the products King Mountain sought to bring to market in Washington.10 Id. at 991; see
Without travel, most goods have no market. But as King Mountain demonstrates, necessity of transport, without an inextricable link between travel and trade, is not sufficient for preеmption. 768 F.3d at 997-98. The necessity to bring its burdened goods to market did not entitle King Mountain to an exemption on its escrow obligation. Nor should Cougar Den be entitled to such an exemption.
Curiously, the majority claims, ”Smiskin is nearly identical to this case.” Majority at 13. I disagree. The specific provision Harry Smiskin was accused of violating required a wholesaler to “‘give[] notice to the [Liquor Control Board] in advance of the commencement of transportation‘” of unstamped cigarettes. Smiskin, 487 F.3d at 1263 (emphasis added) (second alteration in original) (quoting
C. The implications of the majority‘s holding extend beyond this tax regime
The majority is too quick to dismiss the “‘parade of horriblеs‘” the State claims could arise from the majority‘s ruling. Majority at 16. True, felons will not avoid firearm possession charges as a result of this holding, even if they are Yakama Nation members traveling on public highways. Nor would Washington be precluded from regulating the transportation of restricted goods by tribal members. The regulatory exception covers such instances. Smiskin, 487 F.3d at 1271.
But what this ruling puts at risk is Washington‘s, and potentially other states‘, ability to tax goods consumed within its borders. A simple extension of the majority‘s logic would allow nontribal members to avoid the imposition of state use, excise, or sales tax on goods they consume through a contrived transport by Yakama Nation or Nez Perce tribal members.11 The majority provides no clear limits. Transport is necessary to bring many goods to market. See Appellant‘s Opening Br. at 33 (discussing the potential
Ours is a case in point. Cougar Den delivers almost all of its fuel to retail gas stations in Washington. Those gas stations, in turn, sell not just to tribal members, but the general public.12 Cougar Den seeks an exemption from Washington‘s fuel excise tax on all of the fuel it distributes. Indeed, another Yakama Nation member has made similar claims in California, with detrimental impacts not just to the state‘s ability to tax, but its competitive business environment. See Salton Sea Venture, Inc. v. Ramsey, No. 11CV1968-IEG, 2011 WL 4945072, at *7 (S.D. Cal. Oct. 18, 2011) (court order) (competitor asserts a Yakama Nation member‘s claimed exemption from the imposition of California‘s fuel excise tax due based on the treaty right to travel was an unfair business advantage). The majority‘s ruling would, undoubtedly, provide a basis for further examples.
For the reasons stated above, I dissent. The Yakama Nation‘s treaty right to travel on public highways does not preclude taxation of Cougar Den‘s off-reservation fuel distribution activities pursuant to former chapters
Fairhurst, C.J.
Wiggins, J.