# Petition for Writ of Certiorari — V-1 Oil Co. v. Idaho Petroleum Clean Water Trust Fund > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1553%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 519 U.S. 1009 ## Text FILED meee ce 7 No. 9G 518 SEP 3.019% In The gpp@e OF THE CLERK Supreme Court of the United States — October Term, 1995 V-1 OIL COMPANY, an Idaho Corporation, Petitioner, vs. IDAHO PETROLEUM CLEAN WATER TRUST FUND, Respondent. Petition for Writ of Certiorari to the Supreme Court of the State of Idaho PETITION FOR WRIT OF CERTIORARI PETER STIRBA Counsel of Record STIRBA & HATHAWAY 215 South State Street Suite 1150 Salt Lake City, Utah 84111 (801) 364-8300 KENT W. GAUCHAY SIMPSON, GAUCHAY & GARDNER 497 North Capitol Avenue Suite 200 P.O. Box 50494 Idaho Falls, Idaho 83405 (208) 523-2000 Attorneys for Petitioner Nargis (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 ervices, inc. Cy RP PE TEI Em @ PRGA LEI 0 TI ne oacape QUESTIONS PRESENTED I. Whether the decision of the Idaho Supreme Court, denying V-1 Oil the right to a refund or other relief after paying a tax found to be unconstitutional, violates the Fourteenth Amendment Due Process Clause, depriving V-1 Oil a meaningful opportunity to postpayment relief for taxes paid pursuant to a tax scheme found unconstitutional. Il. Whether the Idaho Supreme Court's opinion should be vacated as to the refund/relief issue as violative of the Fourteenth Amendment due process, when that issue was never briefed, argued or a question raised on appeal. ii LIST OF PARTIES All parties to the Idaho Supreme Court proceedings below whose judgment is sought to be reviewed include: Idaho Clean Water Trust Fund, Respondent; Western Petroleum Marketer's Association, Idaho Division, Amicus Curiae; Idaho Highway Users, Inc., Amicus Curiae; V-1 Oil Company, (“V-1”") an Idaho Corporation, Petitioner. Petitioner, V-1 Oil Company, Inc., has no parent companies, subsidiaries or affiliates. TABLE OF CONTENTS Questions Presented ............ cece cece cece eens SERENE TEC EE ETT PET PECL IUCR ECT oe cy ee dk eee eeWeeee die seesse ER Ue ie een eebeWeereeveeet Opinions Below ........ ccc cccccecccccesersccess OR os nk ee deeeceeeacceuees Constitutional Provision and Statutes Involved ....... rr occa eeetccvesedes Reasons for Granting the Writ ...............--5555 I. Il. The decisions below violate V-1 Oil’s Fourteenth Amendment right of due process, entitling an opportunity to postpayment relief for taxes already paid pursuant to a tax scheme found unconstitutional, and directly conflicts with this Court’s due process analysis established in McKesson v. Division of Alcoholic Beverages and Tobaccoand its progeny. ...........-++++55: The Idaho Supreme Court’s sua sponteruling on the refund/relief issue is a violation of the due process clause because the ruling denied V-1 the opportunity to brief and argue the issue, is iv Contents Page contrary to regularized and orderly judicial process, and ignores statutory and constitutional provisions, therefore, this Court should vacate the judgment as to that issue and remand for further proceedings consistent with due process. ..... 13 CGD 5 iv is A xataad be seabesnkeneansdsbeeakeus 23 TABLE OF CITATIONS Cases Cited: Atchison, T. & S.F.R. Co. v. O’Connor, 223 U.S. 280 COPED s vaciainn wads bees 02 cake LES PERE 9,10 Automobile Club of Oregon v. State, 840 P.2d 674 (1992) oOeR Sd bh Due oc Su dba ons see cena aheekecsEes 7 Boddie v. Connecticut,401 U.S.371 (1971) .......... 16 Dorchy v. Kansas, 264 U.S. 286 (1924) .............. 21 Epperson v. Howell, 154 P.621(1918) .............. 21 George v. Donovan, 757 P.2d 651 (Idaho 1988) ....... 20 Hammond Packing Co. v. Arkansas,212 U.S. 322 (1909) cred nds twee ae Koteaeds Selena Nkerie eraeeer 18 Idaho County Property Owners Assn. v. Syringo Gen. Hosp. Dist.,805 P.2d 1233 (Idaho 1991) .......... 20, 21 Contents Page McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18(1990) ........... 5,6,7,8,9, 12,23 Montana National Bank of Billings v. Yellowstone County, 276 U.S. 499 (1928) ......cccccccccccees 11,12 Mullane v. Central Hanover Tr. Co.,339 U.S. 306 (1950) eee Eee PEEP OeTET PEC PTET TPP EL ere? 14 Northcutt v. Sun Valley Co.,787 P.2d 1159 (Idaho 1990) FF Pe np pr EE Ee TT Pe 18 Patterson v. New York, 432 U.S. 197(1977) .......... 17 Sandpoint Convalescent v. Dept. of Health, 756 P.2d 398 SOUND ROE Silvan) odaouceseedeeseidincaes 18 State v. Hoisington,657 P.2d 17 (Idaho 1983) ........ 17 State v. Langdon, 785 P.2d 679 (Idaho Ct. App. 1990) .. 18 Sun Valley Shopping CTR. v. Idaho Power, 803 P.2d 993 CO TOBE DE oo os Fede nidie 0 eae su yn dee hide wns 18 Ward v. Love County Board of Comm’rs, 253 U.S. 17 I a a 10, 11 vi Contents Page Statutes Cited: Fe CAs SOUS ba 6k Seba sanceciaceis gece needa. l SS UDA COPE OUEE bee veccaderedeentbesecic wt 3 Ute tk fk EET PETE O TE ELLE LEO 3 eee eg REPEC T TES REET Pee T Tee PEE ey 20, 21 Tk PIE PEO MEETS TES ET ESTE TT REC eTy 21 hee eg a RORL ETT POR LEE TES PRUT ET Pe cles 20 EA DTU bs RSCREVSinaeabescta ce baveetEonses 19 BA. PPP ROROD As Capen ecWaReiwencdnse kiwekoa as 22 Be je ery ee Peer rere rer yy re 19, 20, 23 BAL. SOP ENUME 0 ccd akan buanes cdaN ss cudnetisexee 2,20 Pub. L. No. 99-499, 100 Stat. 1696 (1986) ........... 3 Pub. L. No. 98-616, 98 Stat. 3277 (1984) ............ 3 United States Constitution Cited: Fourteenth Amendment .................... Ry ay bes Soa vii Contents Page Rule Cited: Co eo. AREER gee ie 15 Other Authorities Cited: Idaho Constitution Article VII,§13 ................ 20 Idaho Constitution Article VII,§17 ............. 2,3, 14,15 ers We 55.0655 54 es Oh OR hose bec hccs 3 APPENDIX Appendix A — Opinion of the Supreme Court of the State of Idaho Dated July 2,1996 ..................... la Appendix B — Opinion of the Supreme Court of the State of Idaho Dated April 16,1996 ............,...... 18a Appendix C — Opinion of the Supreme Court of the State of Idaho Dated August 3,1996 .................. 33a Appendix D — Order Granting Summary Judgment of the District Court of the Seventh Judicial District of the State of Idaho Filed January 12,1994 .......... 48a Appendix E — Memorandum Decision Granting Plaintiff’s Motion for Summary Judgment in the District Court of the Seventh Judicial District of the State of Idaho Filed December 13, 1993 ........... 52a vili Contents Appendix F — Letter from Idaho State Tax Commission SE UR, BO ns ck ks ead ee bc deve Oaeeuniens Appendix G — Memorandum in Support of Petition for Rehearing in the Supreme Court of the State of Idaho OUP BT BO han c hee eek lo 4s h das chains Appendix H — Page 8 of Brief ..................... Appendix I — Relevant Statutes and Constitutional FRI TCUOE op oid 65 6.5.05 bawecedsna hanes Page 78a 8la 99a ] OPINIONS BELOW The opinion of the Supreme Court of Idaho dated July 2, 1996 is unreported as of yet. It is reprinted in the Appendix hereto at Appendix A at la-17a. The opinion of the Supreme Court of Idaho dated April 16, 1996 is unreported as of yet. It is reprinted in the Appendix hereto at Appendix B at 1 8a-32a. The opinion of the Supreme Court of Idaho dated August 3, 1995 is unreported as of yet. It is reprinted in the Appendix hereto at Appendix C at 33a-47a. The Memorandum Decision granting summary judgment, dated December 13, 1993, and the Order granting summary judgment dated January 11, 1994, are unreported. They are reprinted in the Appendix hereto at Appendix D at 48a-5 1a and Appendix E at 52a-77a. STATEMENT OF JURISDICTION The Substitute Opinion of the Supreme Court of Idaho, denying V-1’s Petition for Rehearing, sought to be reviewed was entered July 2, 1996. It is unreported. It is reprinted in the Appendix hereto at Appendix A. This opinion substitutes for the April 16, 1996 opinion. This opinion is unreported. It is reprinted in the Appendix hereto at Appendix B. This Petition for Writ of Certiorari is timely filed September 30, 1996. This Court has jurisdiction pursuant to Title 28 U.S.C. § 1257(a). CONSTITUTIONAL PROVISION AND STATUTES INVOLVED United States Constitution, Amendment XIV, provides: . .. Norshall any State deprive any person of life, liberty, or property, without due process oflaw... 2 Idaho Constitution, Article V1, Section 13, provides: No money shall be drawn from the treasury, but in pursuance of appropriations made by law. Idaho Constitution, Article VII, Section 17, is reprinted in the Appendix hereto at Appendix | at 1 10a. Relevant provisions of Idaho Code Title 63, Chapter 24, are reprinted in the Appendix hereto at Appendix I at 100a- 104a. Relevant provisions of Idaho Code Title 41, Chapter 49, are reprinted in the Appendix hereto at Appendix I at 105a-108. Idaho Code Title 67, Chapter 3511(2) is reprinted in the Appendix hereto at Appendix I at 109a. STATEMENT OF THE CASE This case involves the fundamental principle of due process in two areas. One, as it relates to a state’s requirement to afford meaningful postpayment relief to a party for taxes already paid pursuant to a scheme found unconstitutional. Two, as it relates to the protection of individual property rights from arbitrary termination when a state’s highest court chooses to rule on an issue, sua sponte, without allowing for a party's constitutional right to be heard. The state of Idaho enacted the Idaho Petroleum Clean Water Trust Fund Act of 1990, (“ACT”) which imposes a one cent per gallon “transfer fee” upon distributors of petroleum products and then used to fund a trust for underground storage tank insurance. The state of Idaho enacted this ACT in order to assist Idaho underground storage tank owners and operators in 3 complying with congressional legislation that provided for the regulation of underground storage tanks and the clean up of leaks and releases from these tanks. 42 U.S.C. §§ 6991-69911. These implementing regulations set out a comprehensive framework for the operation of underground storage tanks, including requirements for technical performance standards, corrective action to investigate and remediate tank releases, and, as appiies here, financial responsibility standards. 40 C.F.R. § 280.' On March 12, 1992, Petitioner V-1 Oil Company, (“V-1")a distributor of petroleum products, filed a complaint against Respondent, Idaho Petroleum Clean Water Trust Fund (“Trust Fund”), alleging that (1) the transfer fee is actually a tax on gasoline and motor fuels and its intended use therefore violates Idaho Constitution Art. VII, § 17, (2) that all funds collected pursuant to the Act should be refunded, and (3) the Act violates the constitutional right to freedom of contract and anti-trust laws. On September 17, 1992, the freedom of contract and anti- trust claims were dismissed. On January 29, 1993, V-1 filed a Motion for Summary Judgment in which V-1 requested the court to rule as a matter of law that the transfer fee imposed pursuant to the Act is unconstitutional. On June 1, 1993, the Trust Fund filed a Cross-motion for Summary Judgment on the constitutionality of the Act and a Motion for Summary Judgment on V-1’s right to arefund. On December 13, 1993, the trial court granted partial summary judgment in favor of V-1 on its first allegation holding that the transfer fee was a tax. 1. This legislation was enacted in two stages as amendments to the Resource Conservation and Recovery Act of 1976. 42 U.S.C. §§ 6901- 6992k. The first provisions were added by the Hazardous and Solid Waste Amendments of 1984. Pub. L. No. 98-616, 98 Stat. 3277 (1984). Additional components of the program were enacted as part of the Super Fund Amendments and Reauthorization Act of 1986. Pub. L. No. 99-499, 100 Stat. 1696 (1986). 4 (Appendix D, p. 49a). The court however, denied the Trust Fund’s summary judgment and left for trial the resolution of V- 1’s refund claim asserting that the record was not sufficient to determine what remedy was available to V-1. (Appendix D); (Appendix C, p. 38a; Appendix A, p. 7a). The Trust Fund subsequently appealed the issue of the constiutionality of the transfer fee only, and on August 3, 1995, the Idaho Supreme Court issued an opinion which correctly affirmed the trial court’s finding that the transfer fee was a tax. The Trust Fund then petitioned for a rehearing on this August 3, 1995 opinion. The Idaho Supreme Court then issued a substitute opinion dated April 16, 1996, which again reaffirmed that the transfer fee was a tax. However, the Idaho Supreme Court took it upon itself to revisit the issue of V-1’s refund claim upon which the trial court had received no evidence, heard argument or ruled upon. Without having a sufficient record, briefs submitted or argument, the Idaho Supreme Court ruled that V-1 was not entitled to a refund of the taxes paid pursuant to the unconstitutional tax scheme. (Appendix B, 29a). In response to the court’s opinion, V-1 filed a Petition for Rehearing, detailing and indicating that the court’s decision on the refund issue was contrary to Idaho and United States Supreme Court precedent, in violation of state statutes and the United States Constitution. (Appendix I). Despite V-1’s Petition pointing out the numerous problems with the Idaho Supreme Court deciding on an issue never raised before them, the court denied V-1’s Petition and upheld its decision by reissuing a substitute opinion on July 2, 1996, (Appendix A) replacing the court’s opinion of April 16, 1996. V-1 now has timely filed this Petition for Certiorari. REASONS FOR GRANTING THE WRIT This case involves the fundamental principle of due process in two areas. One, as it relates to a state’s requirement to afford meaningful postpayment relief to a party for taxes already paid pursuant to a scheme found unconstitutional. Two, oe ee ee eee ee ee FS en eee ee ee 5 as it relates to the protection of individual property rights from arbitrary termination when a state’s highest court chooses to rule on an issue, sua sponte, without allowing for a party's constitutional right to be heard. The Supreme Court of Idaho erroncously ruled, sua sponte, that V-1 Oil is not entitled to a refund for taxes paid pursuant to a scheme the Idaho Supreme Court found unconstitutional. In so doing, the court has gone beyond simple error or misapplication of law; the court has made decisions that reek of gross injudicious conduct. By precluding V-1, and countless others who have paid into the insurance fund, from making a rightful refund claim against the tax moneys unconstitutionally taken, the Idaho Supreme Court has givena $50,000,000 windfall to the state of Idaho. (Letter dated May 6, 1996 of Deputy Attorney General Theodore V. Spangler, Jr., Appendix F, p. 80a). In support of their ruling, the Idaho Supreme Court has cited no constitutional, statutory, case or policy arguments. The court simply dispenses with the substance of the refund/relief litigation with six vague sentences. (Appendix A, p. 12a). Without this Courts review, the Idaho Supreme Court will have given a $50,000,000 gift to the state in an arbitrary and patently unconstitutional manner. The Idaho Supreme Court's decision denying any postpayment relief also directly conflicts with this Court’s decision in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990), and ignores this Court's precedents that a state provide retrospective reliefto a party for its payment of an unlawful tax. Further, the Idaho Supreme Court’s ruling on the refund/relief issue, sua sponte, is & violation of due process by, not allowing argument or briefing, ignoring regularized, orderly judicial process, statutory and constitutional interpretation and case precedent. Therefore, the Idaho Supreme Court has deprived V-1 of its opportunity to be heard before the final termination of its rightful property claim. 6 The sole issue on appeal before the Idaho Supreme Court was whether a “transfer fee is a tax on motor vehicle fuels.” (Appendix A, 10a). The trial court originally granted partial summary judgment on this issue holding that the transfer fee was a tax. The trial court also, at that time, denied Idaho Petroleum Clean Water Trust Fund’s (Trust Fund) summary judgment and left for trial the resolution of V-1's refund claim because the record was not sufficient to determine what remedy was available to V-1. (Appendix C, p. 38a; Appendix A, p. 7a). On appeal, the Idaho Supreme Court issued a August 3, 1995 opinion which correctly affirmed the trial court’s finding that the transfer fee was a tax. The Trust Fund subsequently petitioned for a rehearing and the Idaho Supreme Court issued a substitute opinion on April 16, 1996 which also reaffirmed that the transfer fee was a tax. However, the Idaho Supreme Court went one step further and addressed the issue of V-1’s refund claim, notwithstanding it had not been at all developed or ruled upon below, was not part of the appeal, and had not been briefed or argued. Without having a sufficient record, briefs submitted or argument, the court ruled that V-1 was not entitled toa refund of the taxes paid pursuant to the unconstitutional tax scheme. The Idaho Supreme Court’s decision on V-1’s refund claim conflicts with this Court’s analysis in McKesson, and the opinion provides no rational explanation or support for its sua sponte ruling. In response to the court’s opinion, V-1 filed a Petition for Rehearing, supported by memorandum (Appendix G, 81a), outlining specific state and United States Supreme Court precedent that were violated by that court’s ruling, including the McKesson decision. Despite the apparent constitutional and procedural problems and the fact that the refund claim was not an issue on appeal, the Idaho Supreme Court callously denied V-1’s petition without further argument or briefing and upheld its decision by reissuing a substitute opinion on July 2, 1996, replacing the court’s opinion of April 7 16, 1996. Since the nature of this ruling is contrary to fundamental notions of due process, this Court's established precedent and the fact that there is no support for the court’s decision on issues not presented to it, the Idaho Supreme Court’s ruling warrants review by this court.’ THE DECISIONS BELOW VIOLATE V-1 OIL’S FOURTEENTH AMENDMENT RIGHT OF DUE PROCESS, ENTITLING AN OPPORTUNITY TO POSTPAYMENT RELIEF FOR TAXES ALREADY PAID PURSUANT TO A TAX SCHEME FOUND UNCONSTITUTIONAL, AND DIRECTLY CON- FLICTS WITH THIS COURT’S DUE PROCESS ANALYSIS ESTABLISHED IN MCKESSON V. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO AND ITS PROGENY. This Court’s precedents establish that: if a State penalizes taxpayers for failure to remit their taxes in timely fashion, this requiring them to pay first and obtain review of the tax’s validity later in a refund action, the Due Process Clause requires the State to afford taxpayers a meaningful opportunity 2. The result of this litigation has far reaching impact beyond the borders of Idaho. Oregon has already ruled on this issue and held that their underground storage tank assessment “tax” was unconstitutional. Automobile Club of Oregon v. State, 840 P.2d 674 (1992). Cases are also pending in Utah and Wyoming. Virtually every state has adopted similar schemes to provide underground storage tank owners and operators compliance with EPA mandated “financial responsibility” requirements for the maintenance and use of underground storage tanks. 8 to secure postpayment relief for taxes already paid pursuant to a tax scheme ultimately found unconstitutional. McKesson Corp v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18,22 (1990). McKesson is the most recent ina line of cases which stands for the Constitutional principle that a taxpayer is entitled to a clear and certain remedy for a state’s unlawful exaction of tax moneys pursuant to an unconstitutional scheme. McKesson involved a suit by a liquor distributor to recover taxes it had paid under protest, alleging that the tax scheme violated the Commerce Clause because a tax preference providing special rate reductions was given to certain products grown within the state and used in alcoholic beverages. McKesson’s products did not qualify for the rate reductions. A Florida trial court granted partial summary judgment invalidating the tax scheme. The court however, declined to order a refund or any other form of relief for the taxes previously paid under the unconstitutional scheme. The Florida Supreme Court affirmed, ruling that the tax scheme was unconstitutional and that the refusal to order a refund was proper. This Court agreed that the tax scheme was unconstitutional but disagreed with the Florida Supreme Court and concluded that the liquor distributor was entitled to a refund or, because the state court did not invalidate the scheme in its entirety, the state was free to choose some alternative course in providing a meaningful remedy. Justice Brennan, for a unanimous Court explained: Because exaction of a tax constitutes a deprivation of property, the state must provide procedural safeguards against unlawful exactions in order to satisfy the commands of Due Process. The state may Te 9 choose to provide a form of “predeprivation process,” ... or [the state can allow] taxpayers to withhold payment and then interpose their objections as defenses in a tax enforcement proceeding initiated by the state... . To satisfy the requirements of the Due Process Clause, therefore, in this refund action the state must provide taxpayers with, not only a fair opportunity to challenge the accuracy and legal validity of their tax obligation, but also a “clear and certain remedy,” for any erroneous or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one. Id. at 36-39 (citations omitted) (emphasis added). In the case at hand, however, the Idaho Supreme Court did not provide any safeguards against unlawful exaction of taxes or allow for any “clear and certain remedy” for the unconstitutional tax collection. In fact, the Idaho Supreme Court did not allow V-1 even a fair opportunity to make a refund claim because the court decided the issue without having allowed the presentation of evidence below, much less briefs and argument submitted by either party on appeal. This sua sponte ruling ignores this Court’s additional case precedent highlighting a state’s constitutional duty to provide retrospective relief to a party for its payment of an unlawful tax. In Atchison, T. & S.F.R. Co. v. O'Connor, 223 U.S. 280 (1912), this Court explained the scope ofa state’s obligation to provide retrospective relief as part of its postdeprivation procedures in a tax refund suit. Here, a railroad company brought suit to recover taxes it had paid under protest, alleging 10 that the law under which the tax was levied was in violation of the Commerce Clause because most of the franchise tax was apportioned to business conducted wholly outside the state. In ruling that the company was entitled to arefund, Justice Holmes stated: It is reasonable that a man who denies the legality of a tax should have a clear and certain remedy. ... [A]part from special circumstances he cannot interfere by injunction with the state’s collection of its revenues, [therefore] an action at law to recover back what he has paid is the alternative left. Id. at 285. Here, the law was invalidated in its entirety. Therefore the only appropriate relief was for this Court to order a refund. By issuing a judgment entitling the railroad company to a refund of the tax, the taxpayer was provided with a “clear and certain remedy” for the state’s unconstitutional exaction of tax moneys. This Court in 1920, again, reiterated its due process analysis when it ordered a refund of taxes paid when a taxing scheme was ruled unconstitutional. In Ward v. Love County Board of Comm'rs, 253 U.S. 17 (1920), members of the Choctaw tribe filed a refund suit to recover moneys collected from them by Love County, Oklahoma as taxes on their allotments, which under the laws and Constitution of the United States were nontaxable. In reversing the Oklahoma Supreme Court’s refusal to award a refund for the unlawful tax this Court stated: Ea SSS 11 It is a well settled rule that ‘money got through imposition’ may be recovered back; ... [and] [t]o say that the county could collect these unlawful taxes by coercive means and not incur any obligation to pay them back is nothing short of saying that it could take or appropriate the property of these Indian allottees arbitrarily and without due process of law. Of course this would be in contravention of the Fourteenth Amendment, ... Id. at 24 (citations omitted). Eight years later this Court again applied the same Due Process analysis when it held that one forced to pay a tax in violation of a federal law is entitled, in addition to prospective relief, to a refund of the excess tax paid unless the disparity is removed in some other manner. Montana National Bank of Billings v. Yellowstone County, 276 U.S. 499 (1928). In Montana, state officials had imposed a tax on shares of banks incorporated under federal law but not on shares of state- incorporated banks. The Montana National Bank of Billings paid this tax and then brought suit for a refund. On appeal, the Montana Supreme Court overruled a previous state court decision and held shares of state banks should be taxed in order to comply with a federal statute. Although the court ruled in favor of the Montana National Bank of Billings, it declined, however, to order a refund of the taxes paid. On writ of error, this Court acknowledged the Montana Supreme Court’s prospective relief that ensured equal treatment of banks in the future. This Court expressed, however, that prospective relief alone would not satisfy the notions of the Fourteenth Amendment Due Process Clause. Justice Sutherland opined: 12 It is true that the state supreme court in the present case expressly repudiated the construction therefore put by it upon the state statutes. ..and,... adopted one tothe exact contrary. But that does not cure the mischief which had been done under the earlier construction. ... Plaintiff in error cannot be deprived of its legal right to recover the amount of the tax unlawfully exacted ofit... Id. at 504-505. The following cases are similar to our case at hand. Each time the state had wished to keep the money wrongfully taken and had attempted to deprive the wronged parties of their rightful claim to a refund or other appropriate relief. These cases have demonstrated this Court’s traditional analysis when determining a state’s constitutional duty to provide relief toa party for its payment of an unconstitutional tax. “Because exaction ofa tax constitutes a deprivation of property, the state must provide procedural safeguards against unlawful exaction in order to satisfy the commands of the Due Process Clause.” McKesson, at 36 (footnote omitted). In the instant case, Idaho has failed to provide the necessary procedural safeguards to satisfy due process. In fact, the Idaho Supreme Court has blocked any opportunity V-1 may have had in further challenging their tax obligation. They have stripped V-1 of their constitutional right to claim a refund or to avail themselves to other forms of relief. Without allowing for the opportunity to develop a sufficient record, brief, argue or present a refund/relief issue, the Idaho Supreme Court has effectively silenced V-1 before they have been given the opportunity to speak. The Supreme Court of Idaho has ee 13 disregarded the Fourteenth Amendment Due Process Clause and has turned its back on precedent established by this Court.’ Although the Idaho Supreme Court has ruled in a manner which is inconsistent with this Court’s precedent and in total disregard of the Due Process Clause, it is more shocking that the court made these rulingssua sponte. V-1 was never given the opportunity to develop a record, brief or argue the issue of a refund or other appropriate relief. II. THE IDAHO SUPREME COURT’S SUA SPONTE RULING ON THE REFUND/RELIEF ISSUE IS A VIOLATION OF THE DUE PROCESS CLAUSE BECAUSE THE RULING DENIED V-1 THE OPPORTUNITY TO BRIEF AND ARGUE THE ISSUE, IS CONTRARY TO REGULARIZED AND ORDERLY JUDICIAL PROCESS, AND IGNORES STATU- TORY AND CONSTITUTIONAL PROVISIONS, THEREFORE, THIS COURT SHOULD VACATE THE JUDGMENT AS TO THAT ISSUE AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH DUE PROCESS. Early in this Nation’s jurisprudence, this Court voiced the due process doctrine that “[w]herever one is assailed in his person or his property, there he may defend.” Windsor v. McVeigh, 93 U.S. 274, 277 (1876). The Fourteenth Amendment stands for the fundamental principle that, as a matter of due 3. Itcan be noted again that this Court’s precedent was brought to the attention of the Idaho Supreme Court in V-1’s Petition for Rehearing. However, this precedent was disregarded as evidenced by the court's denial out of hand of V-1’s Petition for rehearing and issuance of the July 2, 1996 Substitute Opinion. 14 process, parties whose rights are to be affected are entitled to an opportunity to be heard. And although a precise definition of the Due Process Clause cannot be penned, Justice Jackson in 1950 asserted, “there can be no doubt that at a minimum [the words Due Process] require that deprivation of life, liberty or property by adjudication be preceded by noticeand opportunity for a hearing appropriate to the nature of the case.” Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313 (1950) (emphasis added). In the instant case, the Supreme Court of Idaho has ignored V-1’s fundamental right to be heard by ruling on an issue, sua sponte, without allowing for notice, presentation of evidence below, briefs of authorities or an opportunity to be heard. In so doing, the Idaho Supreme Court has deprived V-1 of their right to a refund or other relief in regards to unconstitutionally exacted taxes in excess of 50 million dollars. (Appendix F, 78a). In March of 1992, V-1 filed a complaint in the district Court of the Seventh Judicial District of the State of Idaho seeking a reimbursement for fees paid under the Clean Water Trust Fund Act. V-1 argued the transfer fee was actually a fuel tax in violation of Article VII, § 17 of the Idaho Constitution. V-1 moved for and was granted a partial summary judgment. The district court agreed that the transfer fee was effectively a tax and in violation of the Idaho Constitution (Appendix C, p.38a; Appendix A, p. 7a). However, the district court held that the record was not sufficient to determine, as a matter of law, what remedy was available to V-1. Respondent, Trust Fund, sought and was granted permission to appeal the district court’s partial summary judgment. In the opinion issued on August 3, 1995, the Idaho Supreme Court affirmed the district court and the unconstitutionality of the transfer fee was settled. V-1’s refund/relief issue was properly left for the trial court. On rehearing, the Idaho iain iia 15 Supreme Court issued a second opinion on April 16, 1996 which substantially reincorporated all of its earlier opinion except that the court had inserted a new paragraph IV entitled, V-1 OIL IS NOT ENTITLED TO A REFUND. However, the trial court never ruled on that issue, V-1’s entitlement to a refund was never briefed, argued or presented as an issue on appeal. Despite these inadequacies, the court disposed of the substance of the refund issue in summary fashion. Finally, after denying V-1’s petition for rehearing, the Idaho Supreme Court issued a substitute opinion which reiterated the April 16, 1996 holding. V-1’s entitlement to a refund was never an issue on appeal. The trial court never ruled on that issue, recognizing that there were contested issues of fact and difficult legal issues involved in the refund question. The only issue decided by the district court’s partial summary judgment was its holding that the petroleum transfer fee was, in effect, an excise tax on motor fuels which violated Article VII, § 17 of the Idaho Constitution. In fact, the sole issue raised and certified for appeal under I.R.C.P. 54(b) was: Whether the district court erred in failing to construe Section 41-4908(7) as imposing a constitutionally permissible charge reasonably related to the pollution liability insurance services made available by the trust fund to licensed petroleum distributors and their customers? (Opening Brief of Appellant, p.8 - Appendix H, 99a). The Idaho Supreme Court has also clearly acknowledged that “the sole issue before this court is whether the transfer fee is a tax on motor vehicle fuels.” (Appendix A, 12a). That was the 16 only issue which was briefed and argued by the parties; there was never any discussion or analysis of V-1's entitlement to a refund. By ruling on this refund/relief issue sua sponte, the Idaho Supreme Court has denied V-1 a meaningful opportunity to be heard and has scoffed at the procedure within our judicial system that prides itself on fair and impartial operation. The right to due process, at its core, reflects a fundamental scheme of regularized, orderly process. It is this process that gives those persons, like V-1, who are forced to settle their claims of right through the judicial process a sense of comfort that they will be given the opportunity to be heard before a final determination of their rights. As Justice Harlan so passionately stated: Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a “legal system,” social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society. Boddie v. Connecticut, 401 U.S. 371, 374 (1971) (emphasis added). It is this common-law model that the American society has rested its “systematic definition of individual rights and duties, as well as its machinery for dispute settlement.” Jd. at er eer ON, ae 17 375. Without this due process of law, the State’s control over methods for binding conflict resolution would be ineffectual. By providing for, and enforcing, this social and legal framework society can count on a regularized, orderly process of dispute settlement. “It is upon this premise that this Court has through years of adjudication put flesh upon the due process principle.” /d. The Idaho Supreme Court has deviated from this regularized and orderly system of dispute resolution and, in so doing, has violated V-1's due process rights. Specifically, by ruling on the refund/relief issue that was reserved for the trial court, the Idaho Supreme Court has denied V-1 the right to brief and cite authorities in support or to argue their claim for a refund or other relief for the unconstitutional taxes exacted from them. In short, the court’s sua sponte ruling has stripped V-1 of their property claim without the opportunity for a hearing. It is commonly known that a state may regulate the procedure of its courts in accordance with its own conception of policy and fairness. Patterson v. New York, 432 U.S. 197 (1977). However, as in this case, when the highest state court deviates from the notions of fairness there must be an avenue for relief to protect those property rights in jeopardy. It is evident that the Idaho Supreme Court has turned its back on due process and on notions of fairness within its own judicial system. On several occasions, the Idaho Supreme Court has made it explicit that they will not review an issue which neither party raised or argued in their briefs. State v. Hoisington, 657 P.2d 17 (Idaho 1983). “This Court has consistently followed the rule that it will not review the actions of a district court which have not been specifically assigned as error[,] [e]specially where there are no authorities cited nor argument contained in the briefs upon the question.” Jd. at 23 (citations omitted). 18 Further, the Supreme Court of Idaho has held that it will not review the actions of a trial court unless the action has been listed as an issue on appeal, especially where no authorities are cited and no argument is contained in the appellate briefs. Sun Valley Shopping CTR. v. Idaho Power, 803 P.2d 993 (Idaho 1991); see Northcutt v. Sun Valley Co., 787 P.2d 1159 (Idaho 1990); Sandpoint Convalescent v. Dept. of Health, 756 P.2d 398 (Idaho 1988). Finally, even the Idaho Court of Appeals has recognized the inherent unfairness of a sua sponte ruling. State v. Langdon, 785 P.2d 679 (Idaho Ct.App.1990). “Where, as here, the order has been entered sua sponte, without prior notice and opportunity to be heard or to respond by memorandum, concerning the reason for a contemplated dismissal, we think justice requires an opportunity to seek the court’s reconsideration.” Jd. at 681. Even with this case precedent to reflect upon, the Idaho Supreme Court insisted on taking a course of procedure that skewed away from the regular and orderly procedure which is characteristic of due process. There are some exceptions that allow acourt to stray from its ordinary procedures without violating the fundamental notions of due process. For example, a state can enter a default judgment against a defendant who, after adequate notice, fails to make a timely appearance. Windsor v. McVeigh, 93 U.S. at 278. Similarly, a state accords due process when it terminates a claim for failure of a party to comply with a reasonable procedural or evidentiary rule necessary for orderly adjudication. Hammond Packing Co. v. Arkansas, 212 U.S. 322, 351 (1909). However, none of the circumstances which allow for acourt to stray from its traditional procedures existed here. In fact, the court has given no authority or reasoning to support their sua sponte ruling and has not offered authoritative support as to why V-1 is precluded from any type of relief/refund. In support, the Idaho Supreme Court has meagerly stated that the legislature had the authority to levy a 19 tax on motor vehicle fuels and that it was the appropriation of the moneys from the taxing scheme that was unconstitutional, and not the creation and collection of the transfer fee. (Appendix A, 12a). By ruling on the refund/relief issue sua sponte, the Idaho Supreme Court has highlighted significant Statutory and legal issues which, because of their difficult nature, ought not have been addressed without the issues having been raised, briefed and argued by the parties. First, while the court's opinion does not directly state that the Idaho Tax Commission can continue to collect the one cent per gallon “transfer fee” as an excise tax on motor fuels, the court's July 2, 1996 opinion is being construed to mean that the one cent per gallon fee is still collectible as an excise tax on motor fuels because the language of the court’s opinion states that “it is uncontested that the legislature had the authority to levy a tax on motor fuels.” (Appendix A, 12a). This result is contrary to several statutes and constitutional provisions enacted by the Idaho legislature. In Idaho Code Title 63, Chapter 24, the legislature provided for the only, 21 cent per gallon, excise tax on motor fuel. (I.C. § 63-2405, Appendix I). Specifically, the legislature was clear and unambiguous that it did not want any other excise taxes on motor fuels when it enacted I.C. § 63-2431, which provides: The taxes imposed by this chaptershall be in lieu of all other excise taxes, license fees or Property taxes imposed upon gasoline, aircraft engine fuel or special fuels by this State or any political subdivision of this state. (Emphasis added) (Appendix I, p. 104a).As the court’s opinion 20 reads today, the Idaho Supreme Court has disregarded the legislature’s intent and has unilaterally and unconstitutionally imposed another one cent per gallon excise tax on motor fuels. Next, if we examine that the Clean Water Trust Fund Act as a whole, it is clear that the legislature did not intend that the transfer fee imposed in I.C. § 41-4908(7) (Appendix I, p. 107a) to be anything other than a source of funding for the underground storage tank insurance program. InI.C. § 41-4914 (Appendix I) the legislature declared that, “[a]ll moneys which may come into the Idaho Petroleum Clean Water Trust Fund are hereby perpetually appropriated to the manager of the State Insurance Fund as Trustee. . .” There is no intimation that the legislature would have intended the one cent transfer fee to be upheld as an additional one cent tax on motor fuel in the event the fee was found unconstitutional. I.C. § 63-2431 expressly prohibits any other excise taxes or license fees on motor fuels. The third procedural problem with the Idaho Supreme Court’s holding on the relief/refund issue is that the court attempts to reapportion the moneys in violation of I.C. § 67- 3511(2) (Appendix I, p. 109a) which states, in part, “Legislative appropriations shall not be transferred from one fund to another unless expressly approved by the legislature.” (emphasis added). In addition, the holding is in conflict with Article VII, § 13 ofthe Idaho Constitution which provides that “No money shall be drawn from the treasury, but in pursuance of appropriations made by law.” Therefore, the court could have voided the transfer fee because it was unconstitutional, but the fee cannot be transmuted into an excise tax on motor fuels. Not only has the court disregarded the above mentioned constitutional and statutory provisions, but it has also ignored case precedent which has generally held that funds cannot be constitutionally transferred from one funding program to another. See George v. Donovan, 757 P.2d 651 (Idaho 1988); Idaho County Property Owners Assn. v. Syringa Gen. Hosp. ae 21 Dist., 805 P.2d 1233 (Idaho 1991); Epperson v. Howell, 154 P. 621 (1918). It also is important to note that even if the legislature had not stated that the 21 cent per gallon motor fuels tax was “in lieu ofall other excise taxes and license fees” on motor fuels, the one cent transfer fee imposed in I.C. § 41-4908(7) is so integrally intertwined with the entire Clean Water Trust Fund Act that, under the standard established by this Court, the license fee cannot reasonably be severed from the Act. Dorchy v. Kansas, 264 U.S. 286 (1924). In Dorchy, this Court opined, after analyzing a state statutory scheme providing for compulsory arbitration of industrial disputes, that: [a] statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad. But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall. Id. at 289-290. The transfer fee is integrally intertwined in the Trust Fund in several ways. I.C. § 41-4908(10)(Appendix I, p. 108a) provides that: The director [of the Clean Water Trust Fund] shall certify to the [Tax] commission when the unencumbered balance in the trust fund equals thirty million dollars ($30,000,000). 22 Effective the first day of the second month following the date of such certification, the imposition of the transfer fee shall be suspended. Thereafter, the director shall certify to the commission when the unencumbered balance in the trust fund equals twenty million dollars ($20,000). Effective the first day of the second month following the date of such certification, the imposition of the transfer fee shall be reinitiated. As an executive branch officer, the director has been given authority to suspend or reimpose the transfer fee. This control is an integral part of the Clean Water Trust Fund Act which cannot be ignored. Furthermore, the Trust Fund Act, by its own terms, requires that collections of the license fee cease when the unencumbered balance exceeds $50,000,000. If this Court had a factually developed record it would demonstrate that the State Tax Commission has collected over $50,000,000 since the inception of the transfer fee. (Appendix F). Since the license fee cannot constitutionally be collected to fund the trust fund insurance program, the effect of the Idaho Supreme Court's opinion is to unencumber all of the $50,000,000 collected to date. The Act would then require the collections to cease, which is inconsistent with treating the transfer fee as a motor fuels tax. Finally, the court’s sua sponte holding is contradictory to express statutory authority for V-1 Oil to claim a refund. I.C. § 63-2410(4) (Appendix I, p. 102a) provides: Any licensed distributor paying the gasoline tax. . .to the state of Idaho erroneously shall be allowed a credit or refund of the amount of tax paid by him if a written claim for 23 refund is filed with the commission within three (3) years after the date those taxes were paid. The court makes no reference to or analysis of that statute in Part IV of its opinion on rehearing. The statements in Part IV of the Idaho Supreme Court’s opinion on rehearing suggesting that the unconstitutional transfer fee can survive as a valid excise tax on motor fuels, are in direct violation of I.C. § 63-2431, and the clear intent expressed in the Clean Water Trust Fund Act. In effect, Part IV of the court’s opinion has imposed an additional one cent excise tax on motor fuels. That result is contrary to the statutes and Idaho Constitution. And in reaching this result the Idaho Supreme Court has disregarded the due process rights of V-1, the orderly and regularized judicial procedures inherent in the Fourteenth Amendment, case precedent and constitutional and statutory provisions. CONCLUSION The Fourteenth Amendment is preemptory. It provides no state shall “deprive any person of life, liberty or property without due process of law. . .” Given the incomplete record, statutory and constitutional contradiction, lack of authority, briefing and argument on the issue, it baffles common sense that the Idaho Supreme Court took it upon themselves to decide the relief/refund issue after it had been left for the trial court. Under McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990), and its progeny, this court has specifically provided for a clear and certain remedy to taxpayers for a state’s unlawful exaction of tax moneys pursuant to an unconstitutional scheme. at The Idaho Supreme Court has ignored this precedent, and in so doing, the court has erroneously and arbitrarily extinguished the rights of V-1 to make a legitimate property claim against the moneys wrongfully exacted from them under the unconstitutional tax scheme. We do not live ina system where a person’s property rights can be so easily extinguished. V-1, without this Court’s review, is without recourse and, with all other payees into the Trust Fund, has bestowed what is tantamount to a $50,000,000 gift to the state of Idaho. As this Court has emphasized time and again, the Due Process Clause grants an aggrieved party the opportunity to present their case and have its merits fairly judged. No such opportunity has been provided to V-1. Here, the deprivation of V-1’sclaim for relief is final. Unlike aclaimant whose charge is dismissed on the merits for lack of evidence or whose claim is dismissed for failure to comply with procedural rules, V-1 cannot obtain further judicial review except to this Court. A system or procedure that deprives persons of their claims ina random manner, as is evident in the case here, cannot go uncorrected. Therefore it is imperative that this Court give V-1 the due process opportunity it is entitled. 25 Respectfully submitted, PETER STIRBA Counsel of Record STIRBA & HATHAWAY 215 South State Street Suite 1150 Salt Lake City, Utah 84111 (801) 364-8300 KENT W. GAUCHAY SIMPSON, GAUCHAY & GARDNER 497 North Capitol Avenue Suite 200 P.O. Box 50494 Idaho Falls, Idaho 83405 (208) 523-2000 Attorneys for Petitioner la APPENDIX A —OPINION OF THE SUPREME COURT OF THE STATE OF IDAHO DATED JULY 2, 1996 IN THE SUPREME COURT OF THE STATE OF IDAHO 1996 OPINION NO. 86 Docket No. 21222 V-1 OIL COMPANY, Plaintiff-Respondent, v. IDAHO PETROLEUM CLEAN WATER TRUST FUND, Defendant-Appellant. Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Ted V. Wood, District Judge. Appeal from partial summary judgment declaring dedication of petroleum transfer fee to non-highway purposes unconstitutional. Affirmed. Holland & Hart, Boise, for appellant. B. Newal Squyers argued. Simpson, Gauchay & Gardner, Idaho Falls; Mofatt, Thomas, Barrett, Rock & Fields, Boise, for respondent. Robert E. Bakes, argued. 2a Appendix A In response to a congressional mandate directing the upgrading and cleanup of underground petroleum storage tanks, the Idaho Legislature enacted the Clean Water Trust Fund Act. This act provide a trust fund for storage-tank liability insurance (Trust Fund). The Trust Fund is primarily funded through a transfer fee levied on the first licensed petroleum distributor to transfer title to petroleum in this state. In March 1992, V-1 Oil Company (V-1 Oil) filed a complaint in district court seeking reimbursement for the fees it had paid under the Clean Water Trust Fund Act. V-1 Oil argued that the transfer fee is actually a gasoline tax, and the proceeds of the tax are not dedicated to highway maintenance and construction projects as required by Article VII, Section 17 of the Idaho Constitution. V-1 Oil moved for and was granted a partial summary judgment. The district court agreed with V-1 Oil that the transfer fee is effectively a tax and the proceeds of that tax must be dedicated to highway construction or maintenance. The district court reserved ruling on the amount of the potential refund. Respondent, Trust Fund, sought and was granted permission to appeal the district court’s partial summary judgment in favor of V-1 Oil. The Supreme Court granted petitions by Western Petroleum Marketers’ Association and Idaho Highway Users, Incorporated, to appear as amicus curiae in this appeal. V-1 Oil seeks attorney fees on appeal under Idaho Code Section 12-117 and the private attorney general doctrine. In an opinion issued on August 3, 1995, the Idaho Supreme Court affirmed the district court. The Supreme Court held that clearly the Legislature had the power to assess or impose the 3a Appendix A “fee” but the Court further held that the fee assessed for transferring title to petroleum products is not a charge for services provided by the Trust Fund. The Supreme Court concluded that the transfer fee is a tax on gasoline and like motor vehicle fuels. Because Article VII, Section 17 of the Idaho Constitution requires that the proceeds of fuel taxes be dedicated exclusively to highway maintenance, construction, and supervision, the Supreme Court held that the proceeds of the fee cannot be allocated to the Trust Fund. The Supreme Court rejected V-1 Oil’s argument that V-1 Oil was entitled to attorney fees on appeal. Noting that the Trust Fund is not a “state agency” within the meaning of | Idaho Code Section 12-117, the Court held that V-1 Oil could not recover attorney fees under the statute. The Supreme Court also denied V-1 Oil’s claim for attorney fees under the private attorney general doctrine, noting that V-1 oil initiated and prosecuted this action in an attempt to recover the transfer fees it has paid. On rehearing, the Idaho Supreme Court held that clearly the Legislature had the power to assess or impose the “fee” but the Court further held that the transfer fee is a tax on gasoline and like motor fuels, stating that “[t]he per-gallon transfer fee assessed for engaging in the privilege of delivering petroleum products in this state is not reasonably related to the benefits provided by the Trust Fund. The transfer fee is thus a tax.” The Supreme Court held that V-1 Oil is not eatitled to a refund of transfer fees that have been paid, noting that the transfer fee itself is not unconstitutional, but rather the appropriation of the revenue raised from the transfer fee is unconstitutional. The Idaho Supreme Court has issued a substitute opinion for the Court’s prior opinion dated April 16, 1996, which has 4a Appendix A been withdrawn. The Court revised the Ist sentence of section IV, which now states that “[t}he revenue raised from the imposition of the transfer fees must be appropriated by the Idaho Legislature for uses consistent with Article VII, Section 17 of the Idaho Constitution.” In addition, the Court has added a new section V, titled “Applicability of this Opinion.” In this new section V, the Court states that its opinion will be applied in a modified prospective fashion, applying the decision to the case before the Court, to all pending actions at the date of the Court’s decision, and to all actions arising in the future. The Court specifically noted that its decision will not be retroactively applied to insurance policies issued by the Trust Fund, insurance reserves, or surplus existing prior to the Supreme Court’s August 3, 1995 decision. The Supreme Court denied attorney fees on appeal. Sa Appendix A IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 21222 Boise, December 1995 Term 1996 Opinion No. 86 Filed: July 2, 1996 Frederick C. Lyon, Clerk V-1 OIL COMPANY, Plaintiff-Respondent, v. IDAHO PETROLEUM CLEAN WATER TRUST FUND, Defendant-Appellant. SUBSTITUTE OPINION THE COURT’S PRIOR OPINION DATED APRIL 16, 1996 IS HEREBY WITHDRAWN Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Ted V. Wood, District Judge. Appeal from partial summary judgment declaring dedication of petroleum transfer fee to non-highway purposes unconstitutional. Affirmed. 6a Appendix A Holland & Hart, Boise, for appellant. B. Newal Squyers argued. Simpson, Gauchay & Gardner, Idaho Falls; Mofatt, Thomas, Barrett, Rock & Fields, Boise, for respondent. Robert E. Bakes, argued. ON REHEARING McDEVITT, Chief Justice I. BACKGROUND AND FACTS This case presents no disputed facts. V-1 Oil Company (V- 1 Oil) is a distributor of petroleum products licensed to do business in Idaho. As to at least some of the petroleum products V-1 Oil sells in Idaho, V-1 Oil is the first licensed distributor to transfer the petroleum products within this state.' As the first licensed distributor to transfer title to a petroleum product in this state, V-1 Oil is required by the Idaho Petroleum Clean Water Act to pay a one cent per-gallon transfer fee on those petroleum products. The proceeds of that transfer fee are committed to the Idaho Petroleum Clean Water Trust Fund (Trust Fund), which insures the owners and operators of petroleum storage tanks who participate in the program against claims for personal injuries and property damage arising from the accidental release of petroleum from the storage tanks. V-1 Oil does not participate in the Trust Fund. 1. The record establishes that V-1 Oil is both a primary and secondary distributor of petroleum products in this state. As discussed below, the district court denied V-1 Oil's motion for summary judgment on the issue of to what extent V-1 Oil was impacted by the imposition of the transfer fee. 7a Appendix A On March 2, 1992, V-1 Oil filed a complaint in district court against the Trust Fund, seeking an order that the petroleum transfer fee charged under the Idaho Petroleum Clean Water Trust Fund Act, I.C. § 41-4908(7), constitutes a gasoline tax. Because the Idaho Constitution requires that the proceeds of any tax on gasoline be dedicated exclusively to the construction, repair, maintenance, and traffic supervision of the public highways of this state, V-1 Oil sought to obtain a refund of the “fees” it had paid and to have the fee declared unconstitutional under Article VII, Section 17 of the Idaho Constitution. V-1 Oil filed a motion for summary judgment on both the constitutionality of the transfer fee and V-1 Oil’s entitlement to a refund of those fees it has paid. The Trust Fund filed a cross motion for summary judgment on the constitutionality of the transfer fee. On December 13, 1993, the district court issued a memorandum decision and order granting V-1 Oil’s motion in part and denying the Trust Fund’s motion. The district court concluded that the petroleum transfer fee is, in effect, a gasoline tax. Because the proceeds of that tax are not dedicated to the construction and maintenance of highways as required by the Idaho Constitution, the district court held that the tax was unconstitutional under Article VII, Section 17 of the Idaho Constitution. The district court also held that the record was not sufficient to determine, as a matter of law, what remedy was available to V-1 Oil. The Trust Fund sought and was granted permission to appeal the partial summary judgment. The Trust Fund argues on appeal that the district court erred in concluding that the transfer fee constitutes a “tax on gasoline and like motor vehicle fuels” under the Idaho Constitution Article VII, Section 17. V-1 Oil seeks attorney fees on appeal. 8a Appendix A IL. STANDARD OF REVIEW When reviewing a district court’s ruling on a motion for summary judgment, this Court liberally construes the record in favor of the party opposing the motion, resolving all inferences that reasonably can be drawn from the record in that party’s favor. E.g., Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994); Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994). This standard is not lessened because both parties have moved for summary judgment. City of Idaho Falls v. Home Indem. Co., 126 Idaho 604, 606, 888 P.2d 383, 385 (1995); Kromrei v. AID Ins. Co., 110 Idaho 549, 551, 716 P.2d 1321, 1323 (1986). However, this Court has recently observed that “when both parties move for summary judgment on the same issues and legal theories based on the same, essentially uncontroverted facts, the record is unlikely to reveal genuine issue of material fact.” City of Chubbuck v. City of Pocatello, 127 Idaho 198, 200, 899 P.2d 411, 413 (1995). When reviewing a district court’s ruling on such motions, this Court must examine each motion separately, alternatively resolving the reasonable inferences presented by the record in opposition to each party’s motion. Id. at 201, 899 P.2d at 414. Iti. THE TRANSFER FEE IMPOSED UNDER THE IDAHO CLEAN WATER TRUST FUND ACTIS A TAX ON GASOLINE AND LIKE MOTOR VEHICLE FUELS | The Idaho Constitution expressly provides that the proceeds of all gasoline taxes must be dedicated exclusively to the construction, repair, maintenance, and supervision of public ee nnn men ee 9a Appendix A highways. Article VII, Section 17 of the Idaho Constitution provides: GASOLINE TAXES AND MOTOR VEHICLE REGISTRATION FEES TO BE EXPENDED ON HIGHWAYS. On and after July 1, 1941 the proceeds from the imposition of any tax on gasoline and like motor vehicle fuels sold or used to propel motor vehicles upon the highways of this State ... shall be used exclusively for the construction, repair, maintenance and traffic supervision of the public highways of this state and the payment of the interest and principal of obligations incurred for said purposes; and no part of such revenues shall, by transfer of funds or otherwise, be diverted to any other purposes whatsoever. Idaho Const. art. VII, § 17. This Court has held that this provision is unambiguous, and the plain meaning of this section prohibits the transfer of revenues collected from taxes on motor vehicle fuels to any purpose other than construction, repair, maintenance, and supervision of public highways. Williams v. Swensen, 93 Idaho 542, 544, 467 P.2d 1, 3 (1970) (“The plain meaning of Art. 7, § 17 of the Constitution is that all moneys collected from the sources must be used for the designated purpose and may not be diverted therefrom.”);State ex rel. Moon v. Jonasson, 78 Idaho 205, 209-10, 299 P.2d 755, 757 (1956) (“The constitutional provision prohibiting the transferring of revenues specified therein to any other purpose than those enumerated is all inclusive; it was enacted by the people of the State. It is plain and unambiguous and is not 10a Appendix A subject to the construction contended for by appellant.”). Based upon our conclusion that there is no interpretation of the fund that would bring the fund within the purposes provided for in Article VII, Section 17 of the Idaho Constitution, the sole issue before this Court is whether the transfer fee is a tax on motor vehicle fuels. The Trust Fund argues that the transfer fee is a charge imposed on those who participate in the storage tank insurance program. As such, the Trust Fund argues that the transfer fee is a fee charged tc provide a service, rather than a tax on gasoline. In support of this proposition, the Trust Fund relies on Kootenai County Property Ass'n v. Kootenai County, 115 Idaho 676, 769 P.2d 553 (1989). In Kootenai, this Court held that an annual solid waste disposal fee was not a tax because that fee was “reasonably related to the services rendered by the county in acquiring, establishing, maintaining and operating its solid waste disposal system.” Jd. at 680, 769 P.2d at 557. It is important to note at the outset that the prior cases in which this Court was required to determine whether a fee constituted a tax, involved municipal and county actions. In those cases, the question of whether the fee constituted a tax was relevant to the authority of the entity to assess the fee. In the present case, there is no dispute that the legislature has the authority to levy a tax on motor vehicle fuels, and the significance of whether the petroleum transfer fee constitutes a tax is relevant only to whether the proceeds of that fee must be dedicated to the purposes required under Article VII, Section 17 of the Idaho Constitution.’ 2. Although there is no dispute that the legislature is authorized to assess and collect the fee at issue in this appeal, V-1 Oil’s standing to challenge the constitutionality of the way in which the proceeds of that fee are spent has not been challenged by the Trust Fund and therefore will not be resolved by this Court on appeal. lla Appendix A In order for the transfer fee to be a “fee for service” under Kootenai, the fees collected must bear a reasonable relationship to the service provided to those paying the fee. In the present case, however, the transfer fee is not related to participation in or the opportunity to participate in the Trust Fund's insurance program. The fee is charged to the first licensed petroleum distributor to transfer title to petroleum in Idaho “for the privilege of engaging in the delivery or storage of petroleum products[,]” I.C. § 41-4908(7), not for participating in the Trust Fund’s insurance program. This case is not analogous to Kootenai, where everyone who paid the solid waste disposal fee was entitled to the benefit of solid waste disposal services. Eligibility to participate in the insurance program is not related to payment of the transfer fee. Distributors who do not store petroleum in storage tanks in Idaho are required to pay the transfer fee although they do not participate in the insurance program, while people and entities who store petroleum in storage tanks but are not licensed petroleum distributors are entitled to participate in the Trust Fund's insurance program without paying the fee. During oral argument, counsel for both parties confirmed that persons or entities are required to pay the transfer fee who cannot participate in the Trust Fund. The per-gallon transfer fee assessed for engaging in the privilege of delivering petroleum products in this state is not reasonably related to the benefits provided by the Trust Fund. The transfer fee is thus a tax. Kootenai County Property Ass'n, 115 Idaho at 680, 769 P.2d at 557 (“The law only requires that the fee be reasonably related to the benefit conveyed.”). The parties do not dispute that the transfer fee is levied, in 12a Appendix A part, on “gasoline and like motor vehicle fuels” within the meaning of Article VII, Section 17 of the Idaho Constitution. The Idaho Petroleum Clean Water Act defines the terms “petroleum” and “petroleum products” to expressly include “motor gasoline, gasohol, other alcohol blended fuels, diesel fuel, heating oil and aviation fuel.” I.C. § 41-4903(23). Moreover, according to the affidavits submitted by V-1 Oil, the only petroleum products relevant to this appeal are diesel fuel and gasoline. To the extent that the petroleum transfer fee has been assessed against “gasoline and like motor vehicle fuels[,]” the allocation of the proceeds of that fee to fund the Trust Fund violates Article VII, Section 17 of the Idaho Constitution. IV. V-1 OIL IS NOT ENTITLED TO A REFUND Although we agree with V-1 Oil that the revenue raised from the imposition of the transfer fee cannot constitutionally be used to finance the Trust Fund, we do not agree that V-1 Oil is entitled to a refund. It is uncontested that the legislature had the authority to levy a tax on motor vehicle fuels. The creation and collection of the transfer fee was not unconstitutional pursuant to Article VII, Section 17 of the Idaho Constitution, but rather the appropriation of the revenue, raised from the transfer fee, to the Trust Fund was unconstitutional. Article VII, Section 17 of the Idaho Constitution mandates that all revenue raised from any tax on gasoline, the transfer fee in this case, must go toward the construction, repair, maintenance, and traffic supervision of the public highways. V-1 Oil is not entitled to a refund of the transfer fees it has paid, based upon our holding that the transfer fee was not unconstitutional and that the appropriation of the 13a Appendix A transfer fees to the Trust Fund was unconstitutional. The revenue raised from the imposition of the transfer fees must be appropriated by the Idaho Legislature for uses consistent with Article VII, Section 17 of the Idaho Constitution. V. APPLICABILITY OF THIS OPINION Since this action involves an interpretation of a statute, the result of which is to declare the appropriation of the proceeds of the transfer fee to be for an unconstitutional purpose, the question of the applicability of this Court’s opinion to past, pending and future cases must be addressed. In Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974), this Court set forth three different approaches for determining the applicability of an opinion of this Court. Thompson, 96 Idaho at 25, 523 P.2d at 1371. The Thompson Court adopted three criteria for determining which approach would be appropriate for a given case. Jd. Under the first criteria, the purpose of the new decision must be analyzed in connection with the question of retroactivity. Jd. The second criteria is reliance on the prior rule of law or the statutory procedure. Jd. the third criteria is the effect on the administration of justice, that is, the number of cases that would be reopened if the decision was applied retroactively. Jd. Subsequently, in Rogers v. Yellowstone Park Co., 97 Idaho 14, 25-26, 539 P.2d 566, 577-78 (1975), Baker v. Shavers, Inc., 117 Idaho 696, 697, 791 P.2d 1275, 1276 (1990), and Potlatch Corp. v. Idaho State Tax Comm'n, 120 Idaho 1, 2-3, 813 P.2d 340, 341-42 (1991), this Court further defined and applied the criteria adopted in Thompson. l4a Appendix A The purpose of this decision is to determine the constitutionality of the appropriation of the proceeds of the transfer fee imposed by the legislature. We recognize the reliance on the statute at issue by the Executive Department of the state in creating the insurance process contemplated by the Idaho Petroleum Clean Water Act and the service it provided in insuring hundreds of individuals and companies, who, in reliance on this insurance program, installed or maintained storage tanks. The expenditure by the State of Idaho of a significant portion of the funds collected in claims and administration of the Trust Fund is very compelling. The effect of this decision on the administration of justice is slight based upon the representation made to this Court that following this Court’s August 3, 1995 decision, the transfer fee funds collected have not been expended and have been held in a separate account by the Idaho State Tax Commission. As in Thompson, this Court finds that the factor of reliance on the constitutionality of the funds appropriated and the past issuance of policies, which will produce claims and losses in the future, and the reliance of significant number of individuals and enterprises on the existence of that insurance, is very strong. Therefore, this Court applies the decision adopted in this case in @ modified prospective fashion, applying the decision to the case before the Court, to all pending actions at the date of the Court’s decision, and to all actions arising in the future. This case will not be retroactively applied to insurance policies issued by the Trust Fund, insurance reserves, or surplus existing prior to this Court’s August 3, 1995 decision. 15a Appendix A VI. V-1 OIL IS NOT ENTITLED TO ATTORNEY FEES ON APPEAL V-1 Oil seeks attorney fees on appeal under I.C. § 12-117 and the private attorney general doctrine. I.C. § 12-117 is inapplicable. The Trust Fund is not a state agency within the meaning of I.C. § 67-5201, which is incorporated into I.C. § 12- 117 by reference. I.C. § 12-117(4)(b). The definition provided by I.C. § 67-5201 provides that an “agency” is “each state board, commission, department or officer authorized by law to make rules or to determine contested cases ....” I.C. § 67- 5201(2) The Trust Fund has no power to promulgate rules or decide contested cases, and is not an agency subject to attorney fees under I.C. § 12-117. We also reject V-1 Oil’s invitation to award attorney fees under the private attorney general doctrine. In Hellar v. Cenarrusa, 106 Idaho 571, 682 P.2d 524 (1984), this Court adopted a three-factor test to determine whether attorney fees should be awarded under the private attorney general doctrine. When making such a determination, this Court must consider (1) the strength of the societal importance of the public policy vindicated by the litigation; (2) the need for private enforcement and the magnitude of the resultant burden on the plaintiff; and (3) the number of people standing to benefit from the decision sought. Jd. at 577-78, 682 P.2d at 530-31; see also Miller v. Echohawk, 126 Idaho 47, 49, 878 P.2d 746, 748 (1994) (applying Hellar test to review award of fees under private attorney general doctrine). V-1 Oil filed a complaint in district court seeking a refund of all funds paid by V-1 Oil pursuant to the Idaho Petroleum 16a Appendix A Trust Fund Act. Regardless of whether V-1 Oil is entitled to such a refund, the record of the proceedings below and the arguments presented to this Court clearly establish that V-1 Oil initiated and has pursued this litigation for the limited purpose of obtaining a refund of the fees it has paid into the Trust Fund. As such, we conclude that V-1 Oil is not entitled to an award of attorney fees under the private attorney general doctrine. Vil. CONCLUSION The district court’s order granting partial summary judgment in favor of V-1 Oil and denying the Trust Fund’s motion for summary judgment is affirmed. The issue of whether V-1 Oil is entitled to a refund is not remanded to the district court, as we hold that V-1 Oil is not entitled to a refund of the transfer fees it has paid. This Court’s decision will be applied in a modified prospective fashion. Costs to respondent; no attorney fees are awarded on appeal. Justices TROUT, SILAK and SCHROEDER,CONCUR. Justice JOHNSON,CONCURRING IN THE RESULT. I concur in the result reached in the Court’s opinion. In doing so, I announce that I consider the opinion in this case effectively to overrule Kootenai County Property Ass’n v. Kootenai County., 115 Idaho 676, 769 P.2d 553 (1989). The Court’s opinion attempts to distinguish Kootenai by stating that in Kootenai “everyone who paid the solid waste disposal fee entitled to the benefit of solid waste disposal services,” while in this case, “[e]ligibility to participate in the 17a Appendix A insurance program is not related to payment of the transfer fee.” Slip. op 5. In my view, this attempted distinction is not valid. In Kootenai, the Court held that because any owner of a habitable residential dwelling was eligible to use the county waste disposal site, the charge imposed on them was a fee and not a tax. 115 Idaho at 678, 769 P.2d at 555. The essence of this logic was that it was up to the owner whether they chose to send their solid waste, if they had any, to the county waste disposal site. In the present case, anyone who pays the transfer fee is eligible to participate in the Trust Fund’s insurance program, if they choose to have storage tanks, as V-1 has. In Kootenai, only those who chose to use the county waste disposal site received a benefit. Here, only those who choose to have storage tanks benefit. Having disagreed with the Court in Kootenai, and having attempted without success to convince the Court that Kootenai controlled, I now enthusiastically accept what I consider to be the demise of Kootenai as precedent. “It is said that there is nothing so dangerous to the status quo as an idea whose time has come. More dangerour yet is the continuance of an idea whose time has past.” Olsen » Olsen, 98 Idaho 10, 21, 557 P.2d 604, 615 (1976) (Shepard J., dissenting). 18a APPENDIX B —OPINION OF THE SUPREME COURT OF THE STATE OF IDAHO DATED APRIL 16, 1996 IN THE SUPREME COURT OF THE STATE OF IDAHO 1996 OPINION NO. 40 Docket No. 21222 V-1 OIL COMPANY, Plaintiff-Respondent, v. IDAHO PETROLEUM CLEAN WATER TRUST FUND, Defendant-Appellant. Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Ted V. Wood, District Judge. Appeal from partial summary judgment dutiving dedication of petroleum transfer fee to non-highway purposes unconstitutional. Affirmed. Holland & Hart, Boise, for appellant. B. Newal Squyers argued. Simpson, Gauchay & Gardner, Idaho Falls; Mofatt, Thomas, Barrett, Rock & Fields, Boise, for respondent. Robert E. Bakes, argued. 19a Appendix B In response to a congressional mandate directing the upgrading and cleanup of underground petroleum storage tanks, the Idaho Legislature enacted the Clean Water Trust Fund Act. This act provide a trust fund for storage-tank liability insurance (Trust Fund). The Trust Fund is primarily funded through a transfer fee levied on the first licensed petroleum distributor to transfer title to petroleum in this state. In March 1992, V-1 Oil Company (V-1 Oil) filed a complaint in district court seeking reimbursement for the fees it had paid under the Clean Water Trust Fund Act. V-1 Oil argued that the transfer fee is actually a gasoline tax, and the proceeds of the tax are not dedicated to highway maintenance and construction projects as required by Article VII, Section 17 of the Idaho Constitution. V-1 Oil moved for and was granted a partial summary judgment. The district court agreed with V-1 Oil that the transfer fee is effectively a tax and the proceeds of that tax must be dedicated to highway construction or maintenance. The district court reserved ruling on the amount of the potential refund. Respondent, Trust Fund, sought and was granted permission to appeal the district court’s partial summary judgment in favor of V-1 Oil. The Supreme Court granted petitions by Western Petroleum Marketers’ Association and Idaho Highway Users, Incorporated, to appear as amicus curiae in this appeal. V-1 Oil seeks attorney fees on appeal under Idaho Code Section 12-117 and the private attorney general doctrine. In an opinion issued on August 3, 1995, the Idaho Supreme Court affirmed the district court. The Supreme Court held that clearly the Legislature had the power to assess or impose the 20a Appendix B “fee” but the Court further held that the fee assessed for transferring title to petroleum products is not a charge for services provided by the Trust Fund. The Supreme Court concluded that the transfer fee is a tax on gasoline and like motor vehicle fuels. Because Article VII, Section 17 of the Idaho Constitution requires that the proceeds of fuel taxes be dedicated exclusively to highway maintenance, construction, and supervision, the Supreme Court held that the proceeds of the fee cannot be allocated to the Trust Fund. The Supreme Court rejected V-1 Oil’s argument that V-1 Oil was entitled to attorney fees on appeal. Noting that the Trust Fund is not a “state agency” within the meaning of Idaho Code Section 12-117, the Court held that V-1 Oil could not recover attorney fees under the statute. The Supreme Court also denied V-1 Oil’s claim for attorney fees under the private attorney general doctrine, noting that V-1 oil initiated and prosecuted this action in an attempt to recover the transfer fees it has paid. On August 24, 1995, the Idaho Petroleum Clean Water Trust Fund filed a petition for rehearing, which was granted by the Idaho Supreme Court on September 25, 1995. in support of its petition for rehearing, the Idaho Petroleum Clean Water Trust Fund argued that the majority opinion in this case failed to apply the fundamental rules of statutory construction, which require a court to construe a statute with every presumption in favor of its constitutionality. The Idaho Petroleum Clean Water Trust Fund contended that the majority opinion failed to follow Idaho precedent for analyzing whether a fee will be considered a “tax” ora “fee,” and after determining it was a tax, failed to consider whether the Idaho Petroleum Clean Water Trust Fund was within the purposes of Article VII, Section 17 of the Idaho Constitution. 21a Appendix B On rehearing, the Idaho Supreme Court held that clearly the Legislature had the power to assess or impose the “fee” but the Court further held that the transfer fee is a tax on gasoline and like motor fuels, stating that “(t]he per-gallon transfer fee assessed for engaging in the privilege of delivering petroleum products in this state is not reasonably related to the benefits provided by the Trust Fund. The transfer fee is thus a tax.” The Supreme Court ruled that V-1 Oil is not entitled to a refund of transfer fees that have been paid, noting that the transfer fee itself is not unconstitutional, but rather the appropriation of the revenue raised from the transfer fee is unconstitutional. The Supreme Court concluded that “[t}he revenue raised from the imposition of the transfer fees must be appropriated to the Idaho Department of Transportation, for uses consistent with Article VII, Section 17 of the Idaho Constitution.” The Supreme Court denied attorney fees on appeal. 22a Appendix B IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 21222 Boise, December 1995 Term 1996 Opinion No. 40 Filed: April 16, 1996 Frederick C. Lyon, Clerk V-1 OIL COMPANY, Plaintiff-Respondent, v. IDAHO PETROLEUM CLEAN WATER TRUST FUND, Defendant-Appellant. SUBSTITUTE OPINION | THE COURT’S PRIOR OPINION DATED AUGUST 3, 1996 IS HEREBY WITHDRAWN Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Ted V. Wood, District Judge. Appeal from partial summary judgment declaring dedication of petroleum transfer fee to non-highway purposes unconstitutional. Affirmed. 23a Appendix B Holland & Hart, Boise, for appellant. B. Newal Squyers argued. Simpson, Gauchay & Gardner, Idaho Falls; Mofatt, Thomas, Barrett, Rock & Fields, Boise, for respondent. Robert E. Bakes, argued. ON REHEARING McDEVITT, Chief Justice I. BACKGROUND AND FACTS This case presents no disputed facts. V-1 Oil Company (V- 1 Oil) is a distributor of petroleum products licensed to do business in Idaho. As to at least some of the petroleum products V-1 Oil sells in Idaho, V-1 Oil is the first licensed distributor to transfer the petroleum products within this state.' As the first licensed distributor to transfer title to a petroleum product in this state, V-1 Oil is required by the Idaho Petroleum Clean Water Act to pay a one cent per-gallon transfer fee on those petroleum products. The proceeds of that transfer fee are committed to the Idazo Petroleum Clean Water Trust Fund (Trust Fund), which insures the owners and operators of petroleum storage tanks who participate in the program against claims for personal injuries and property damage arising from the accidental release of petroleum from the storage tanks. V-1 Oil does not participate in the Trust Fund. 1. The record establishes that V-1 Oil is both a primary and secondary distributor of petroleum products in this state. As discussed below, the district court denied V-1 Oil's motion for summary judgment on the issue of to what extent V-1 Oil was impacted by the imposition of the transfer fee. 24a Appendix B On March 2, 1992, V-1 Oil filed a complaint in district court against the Trust Fund, seeking an order that the petroleum transfer fee charged under the Idaho Petroleum Clean Water Trust Fund Act, I.C. § 41-4908(7), constitutes a gasoline tax. Because the Idaho Constitution requires that the proceeds of any tax on gasoline be dedicated exclusively to the construction, repair, maintenance, and traffic supervision of the public highways of this state, V-1 Oil sought to obtain a refund of the “fees” it had paid and to have the fee declared unconstitutional under Article VII, Section 17 of the Idaho Constitution. V-1 Oil filed a motion for summary judgment on both the constitutionality of the transfer fee and V-1 Oil’s entitlement to a refund of those fees it has paid. The Trust Fund filed a cross motion for summary judgment on the constitutionality of the transfer fee. On December 13, 1993, the district court issued a memorandum decision and order granting V-1 Oil’s motion in part and denying the Trust Fund’s motion. The district court concluded that the petroleum transfer fee is, in effect, a gasoline tax. Because the proceeds of that tax are not dedicated to the construction and maintenance of highways as required by the Idaho Constitution, the district court held that the tax was unconstitutional under Article VII, Section 17 of the Idaho Constitution. The district court also held that the record was not sufficient to determine, as a matter of law, what remedy was available to V-1 Oil. The Trust Fund sought and was granted permission to appeal the partial summary judgment. The Trust Fund argues on appeal that the district court erred in concluding that the transfer fee constitutes a “tax on gasoline and like motor vehicle fuels” under the Idaho Constitution Article VII, Section 17. V-1 Oil seeks attorney fees on appeal. 25a Appendix B Il. STANDARD OF REVIEW When reviewing a district court’s ruling on a motion for summary judgment, this Court liberally construes the record in favor of the party opposing the motion, resolving all inferences that reasonably can be drawn from the record in that party’s favor. E.g., Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994); Farm Credit Bank of Spokane vy. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994). This standard is not lessened because both parties have moved for summary judgment. City of Idaho Falls v. Home Indem. Co., 126 Idaho 604, 606, 888 P.2d 383, 385 (1995); Kromrei v. AID Ins. Co., 110 Idaho 549, 551, 716 P.2d 1321, 1323 (1986). However, this Court has recently observed that “when both parties move for summary judgment on the same issues and legal theories based on the same, essentially uncontroverted facts, the record is unlikely to reveal genuine issue of material fact.” City of Chubbuck v. City of Pocatello, 127 Idaho 198, 200, 899 P.2d 411, 413 (1995). When reviewing a district court’s ruling on such motions, this Court must examine each motion separately, alternatively resolving the reasonable inferences presented by the record in opposition to each party’s motion. Id.at201, 899 P.2d at 414. Il. . THE TRANSFER FEE IMPOSED UNDER THE IDAHO CLEAN WATER TRUST FUND ACT IS A TAX ON GASOLINE AND LIKE MOTOR VEHICLE FUELS The Idaho Constitution expressly provides that the proceeds of all gasoline taxes must be dedicated exclusively to the construction, repair, maintenance, and supervision of public 26a Appendix B highways. Article VII, Section 17 of the Idaho Constitution provides: GASOLINE TAXES AND MOTOR VEHICLE REGISTRATION FEES TO BE EXPENDED ON HIGHWAYS. On and after July 1, 1941 the proceeds from the imposition of any tax on gasoline and like motor vehicle fuels sold or used to propel motor vehicles upon the highways of this state ... shall be used exclusively for the construction, repair, maintenance and traffic supervision of the public highways of this state and the payment of the interest and principal of obligations incurred for said purposes; and no part of such revenues shall, by transfer of funds or otherwise, be diverted to any other purposes whatsoever. Idaho Const. art. VII, § 17. This Court has held that this provision is unambiguous, and the plain meaning of this section prohibits the transfer of revenues collected from taxes on motor vehicle fuels to any purpose other than construction, repair, maintenance, and supervision of public highways. Williams v. Swensen, 93 Idaho 542, 544, 467 P.2d 1, 3 (1970) (“The plain meaning of Art. 7, § 17 of the Constitution is that all moneys collected from the enumerated sources must be used for the designated purpose and may not be diverted therefrom.”);State ex rel. Moon v. Jonasson, 78 Idaho 205, 209-10, 299 P.2d 755, 757 (1956) (“The constitutional provision prohibiting the transferring of revenues specified therein to any other purpose than those enumerated is all inclusive; it was enacted by the people of the State. It is plain and unambiguous and is not 27a Appendix B subject to the construction contended for by appellant.”). Based upon our conclusion that there is no interpretation of the fund that would bring the fund within the purposes provided for in Article VII, Section 17 of the Idaho Constitution, the sole issue before this Court is whether the transfer fee is a tax on motor vehicle fuels. The Trust Fund argues that the transfer fee is a charge imposed on those who participate in the storage tank insurance program. As such, the Trust Fund argues that the transfer fee is a fee charged to provide a service, rather than a tax on gasoline. In support of this proposition, the Trust Fund relies on Kootenai County Property Ass'n v. Kootenai County, 115 Idaho 676, 769 P.2d 553 (1989). In Kootenai, this Court held that an annual solid waste disposal fee was not a tax because that fee was “reasonably related to the services rendered by the county in acquiring, establishing, maintaining and operating its solid waste disposal system.”/d. at 680, 769 P.2d at 557. It is important to note at the outset that the prior cases in which this Court was required to determine whether a fee constituted a tax, involved municipal and county actions. In those cases, the question of whether the fee constituted a tax was relevant to the authority of the entity to assess the fee. In the present case, there is no dispute that the legislature has the authority to levy a tax on motor vehicle fuels, and the significance of whether the petroleum transfer fee constitutes a tax is relevant only to whether the proceeds of that fee must be dedicated to the purposes required under Article VII, Section 17 of the Idaho Constitution.” 2. Although there is no dispute that the legislature is authorized to assess and collect the fee at issue in this appeal, V-1 Oil’s standing to challenge the constitutionality of the way in which the proceeds of that fee are spent has not been challenged by the Trust Fund and therefore will not be resolved by this Court on appeal. 28a Appendix B In order for the transfer fee to be a “fee for service” under Kootenai, the fees collected must bear a reasonable relationship to the service provided to those paying the fee. In the present case, however, the transfer fee is not related to participation in or the opportunity to participate in the Trust Fund’s insurance program. The fee is charged to the first licensed petroleum distributor to transfer title to petroleum in Idaho “for the privilege of engaging in the delivery or storage of petroleum products[,]” I.C. § 41-4908(7), not for participating in the Trust Fund’s insurance program. This case is not analogous to Kootenai, where everyone who paid the solid waste disposal fee was entitled to the benefit of solid waste disposal services. Eligibility to participate in the insurance program is not related to payment of the transfer fee. Distributors who do not store petroleum in storage tanks in Idaho are required to pay the transfer fee although they do not participate in the insurance program, while people and entities who store petroleum in storage tanks but are not licensed petroleum distributors are entitled to participate in the Trust Fund’s insurance program without paying the fee. During oral argument, counsel for both parties confirmed that persons or entities are required to pay the transfer fee who cannot participate in the Trust Fund. The per-gallon transfer fee assessed for engaging in the privilege of delivering petroleum products in this state is not reasonably related to the benefits provided by the Trust Fund. The transfer fee is thus a tax. Kootenai County Property Ass'n, 115 Idaho at 680, 769 P.2d at 557 (“The law only requires that the fee be reasonably related to the benefit conveyed.”). The parties do not dispute that the transfer fee is levied, in AIRE NO ARE LS GENIN ac RRER AE TD RS BR - ac ag ne: SE OLEH 29a Appendix B part, on “gasoline and like motor vehicle fuels” within the meaning of Article VII, Section 17 of the Idaho Constitution. The Idaho Petroleum Clean Water Act defines the terms “petroleum” and “petroleum products” to expressly include “motor gasoline, gasohol, other alcohol blended fuels, diesel fuel, heating oil and aviation fuel.” I.C. § 41-4903(23). Moreover, according to the affidavits submitted by V-1 Oil, the only petroleum products relevant to this appeal are diesel fuel and gasoline. To the extent that the petroleum transfer fee has been assessed against “gasoline and like motor vehicle fuels[,}” the allocation of the proceeds of that fee to fund the Trust Fund violates Article VII, Section 17 of the Idaho Constitution. IV. V-1 OIL IS NOT ENTITLED TO A REFUND Although we agree with V-1 Oil that the revenue raised from the imposition of the transfer fee cannot constitutionally be used to finance the Trust Fund, we do not agree that V-1 Oil is entitled to a refund. It is uncontested that the legislature had the authority to levy a tax on motor vehicle fuels. The creation and r’ “section of the transfer fee was not unconstitutional pursuant to article VII, Section 17 of the Idaho Constitution, but rather the appropriation of the revenue, raised from the transfer fee, to the Trust Fund was unconstitutional. Article VII, Section 17 of the Idaho Constitution mandates that all revenue raised from any tax on gasoline, the transfer fee in this case, must go toward the construction, repair, maintenance, and traffic supervision of the public highways. V-1 Oil is not entitled to a refund of the transfer fees it has paid, based upon our holding that the transfer fee was not unconstitutional and that the appropriation of the 30a Appendix B transfer fees to the Trust Fund was unconstitutional. The revenue raised from the imposition of the transfer fees must be appropriated by the Idaho Legislature for uses consistent with Article VII, Section 17 of the Idaho Constitution. V. V-1 OILIS NOT ENTITLED TO ATTORNEY FEES ON APPEAL V-1 Oil seeks attorney fees on appeal under I.C. § 12-117 and the private attorney general doctrine. I.C. § 12-117 is inapplicable. The Trust Fund is not a state agency within the meaning of I.C. § 67-5201, which is incorporated into I.C. § 12- 117 by reference. I.C. § 12-117(4)(b). The definition provided by I.C. § 67-5201 provides that an “agency” is “each state board, commission, department or officer authorized by law to make rules or to determine contested cases... .” I.C. § 67- 5201(2) The Trust Fund has no power to promulgate rules or decide contested cases, and is not an agency subject to attorney fees under I.C. § 12-117. We also reject V-1 Oil’s invitation to award attorney fees under the private attorney general doctrine. In Hellar v. Cenarrusa, 106 Idaho 571, 682 P.2d 524 (1984), this Court adopted a three-factor test to determine whether attorney fees should be awarded under the private attorney general doctrine. When making such a determination, this Court must consider (1) the strength of the societal importance of the public policy vindicated by the litigation; (2) the need for private enforcement and the magnitude of the resultant burden on the plaintiff; and (3) the number of people standing to benefit from the decision sought. Jd. at 577-78, 682 P.2d at 530-31; see also Miller v. Echohawk, 126 Idaho 47, 49, 878 P.2d 746, 748 (1994) (applying Hellar test to review award of fees under private attorney general doctrine). 3la Appendix B V-1 Oil filed a complaint in district court seeking a refund of all funds paid by V-1 Oil pursuant to the Idaho Petroleum Trust Fund Act. Regardless of whether V-1 Oil is entitled to such a refund, the record of the proceedings below and the arguments presented to this Court clearly establish that V-1 Oil initiated and has pursued this litigation for the limited purpose of obtaining a refund of the fees it has paid into the Trust Fund. As such, we conclude that V-1 Oil is not entitled to an award of attorney fees under the private attorney general doctrine. VI. CONCLUSION The district court’s order granting partial summary judgment in favor of V-1 Oil and denying the Trust Fund’s motion for summary judgment is affirmed. The issue of whether V-1 Oil is entitled to a refund is not remanded to the district court, as we hold that V-1 Oil is not entitled to a refund of the transfer fees it has paid. Costs to respondent; no attorney fees are awarded on appeal. Justices TROUT, SILAK and SCHROEDER,CONCUR. Justice JOHNSON,CONCURRING IN THE RESULT. I concur in the result reached in the Court’s opinion. In doing so, I announce that I consider the opinion in this case effectively to overrule Kootenai County Property Ass’n v. Kootenai County., 115 Idaho 676, 769 P.2d 553 (1989). The Court’s opinion attempts to distinguish Kootenai by stating that in Kootenai “everyone who paid the solid waste disposal fee entitled to the benefit of solid waste disposal 5 be 32a Appendix B services,” while in this case, “[e]ligibility to participate in the insurance program is not related io payment of the transfer fee.” Slip. op 5. In my view, this attempted distinction is not valid. In Kootenai, the Court held that because any owner of a habitable residential dwelling was eligible to use the county waste disposal site, the charge imposed on them was a fee and not a tax. 115 Idaho at 678, 769 P.2d at 555. The essence of this logic was that it was up to the owner whether they chose to send their solid waste, if they had any, to the county waste disposal site. In the present case, anyone who pays the transfer fee is eligible to participate in the Trust Fund’s insurance program, if they choose to have storage tanks, as V-1 has. In Kootenai, only those who chose to use the county waste disposal site received a benefit. Here, only those who choose to have storage tanks benefit. Having disagreed with the Court in Kootenai, and having attempted without success to convince the Court that Kootenai controlled, I now enthusiastically accept what I consider to be the demise of Kootenai as precedent. “It is said that there is nothing so dangerous to the status quo as an idea whose time has come. More dangerous yet is the continuance of an idea whose time has past.” Olsen v. Olsen, 98 Idaho 10, 21, 557 P.2d 604, 615 (1976) (Shepard J., dissenting). 33a APPENDIX C — OPINION OF THE SUPREME COURT OF THE STATE OF IDAHO DATED AUGUST 3, 1996 IN THE SUPREME COURT OF THE STATE OF IDAHO 1995 OPINION NO. 93 Docket No. 21222 V-1 OIL COMPANY, Plaintiff-Respondent, v. IDAHO PETROLEUM CLEAN WATER TRUST FUND, Defendant- Appellant. Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Ted V. Wood, District Judge. Appeal from partial summary judgment declaring dedication of petroleum transfer fee to non-highway purposes unconstitutional. Affirmed. Holland & Hart, Boise, for appellant. B. Newal Squyers argued. Simpson, Gauchay & Gardner, Idaho Falls; Mofatt, Thomas, Barrett, Rock & Fields, Boise, for respondent. Robert E. Bakes, argued. 34a Appendix C In response to a congressional mandate directing the upgrading and cleanup of underground petroleum storage tanks, the Idaho Legislature enacted the Clean Water Trust Fund Act. This act provide a trust fund for storage-tank liability insurance (Trust Fund). The Trust Fund is primarily funded through a transfer fee levied on the first licensed petroleum distributor to transfer title to petroleum in this state. In March 1992, V-1 Oil Company (V-1 Oil) filed a complaint in district court seeking reimbursement for the fees it had paid under the Clean Water Trust Fund Act. V-1 Oil argued that the transfer fee is actually a gasoline tax, and the proceeds of the tax are not dedicated to highway maintenance and construction projects as required by Article VII, Section 17 of the Idaho Constitution. V-1 Oil moved for and was granted a partial summary judgment. The district court agreed with V-1 Oil that the transfer fee is effectively a tax and the proceeds of that tax must be dedicated to highway construction or maintenance. The district court reserved ruling on the amount of the potential refund. Respondent, Trust Fund, sought and was granted permission to appeal the district court’s partial summary judgment in favor of V-1 Oil. The Supreme Court granted petitions by Western Petroleum Marketers’ Association and Idaho Highway Users, Incorporated, to appear as amicus curiae in this appeal. V-1 Oil seeks attorney fees on appeal under Idaho Code Section 12-117 and the private attorney general doctrine. The Supreme Court affirmed the district court. The Supreme Court held that a fee assessed for transferring title to petroleum products is not a charge for services provided by the 35a Appendix C petroleum trust fund program. Because the fee is not related to the services funded by the revenue raised by that fee, the Supreme Court concluded that the transfer fee is a tax on gasoline and like motor vehicle fuels. Because Article VII, Section 17 of the Idaho Constitution requires that the proceeds of fuel taxes must be dedicated exclusively to highway maintenance, construction, and supervision, the Supreme Court held that the proceeds of the fee cannot be allocated to the trust fund. The Supreme Court rejected V-1 Oil’s argument that V-1 Oil was entitled to attorney fees on appeal. Noting that the Trust Fund is not a “state agency” within the meaning of Idaho Code Section 12-117, the Court held that V-1 Oil could not recover attorney fees under the statute. The Supreme Court also denied V-1 Oil’s claim for attorney fees under the private attorney general doctrine, noting that V-1 oil initiated and prosecuted this action in an attempt to recover the transfer fees it has paid. 36a Appendix C IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 21222 Boise, December 1995 Term 1995 Opinion No. 93 Filed: August 3, 1995 Frederick C. Lyon, Clerk Y-1 OIL COMPANY, Plaintiff-Respondent, v. IDAHO PETROLEUM CLEAN WATER TRUST FUND, Defendant-Appellant. Appeal from the District Court of the ecih Judicial District of the State of Idaho, Bonneville County. Hon. Ted V. Wood, District Judge. Appeal from partial summary judgment declaring dedication of petroleum transfer fee to non-highway purposes unconstitutional. Affirmed. Holland & Hart, Boise, for appellant. B. Newal Squyers argued. 37a Appendix C Simpsoa, Gauchay & Gardner, Idaho Falls; Mofatt, Thomas, Barrett, Rock & Fields, Boise, for respondent. Robert E. Bakes, argued. McDEVITT, Chief Justice I. BACKGROUND AND FACTS This case presents no disputed facts. V-1 Oil Company (V- 1 Oil) is a distributor of petroleum products licensed to do business in Idaho. As to at least some of the petroleum products V-1 Oil sells in Idaho, V-1 Oil is the first licensed distributor to transfer the petroleum products within this state.' As the first licensed distributor to transfer title to a petroleum product in this state, V-1 Oil is required by the Idaho Petroleum Clean Water Act to pay a one cent per-gallon transfer fee on those petroleum products. The proceeds of that transfer fee are committed to the Idaho Petroleum Clean Water Trust Fund (Trust Fund), which insures the owners and operators of petroleum storage tanks who participate in the program against claims for personal injuries and property damage arising from the accidental release of petroleum from the storage tanks. V-1 Oil does not participate in the Trust Fund. On March 2, 1992, V-1 Oil filed a complaint in district court against the Trust Fund, seeking an order that the petroleum transfer fee charged under the Idaho Petroleum Clean Water Trust Fund Act, I.C. § 41-4908(7), constitutes a 1. The record establishes that V-1 Oil is both a primary and secondary distributor of petroleum products in this state. As discussed below, the district court denied V-1 Oil's motion for summary judgment on the issue of to what extent V-1 Oil was impacted by the imposition of the transfer fee. 38a Appendix C gasoline tax. Because the Idaho Constitution requires that the proceeds of any tax on gasoline be dedicated exclusively to the construction, repair, maintenance, and traffic supervision of the public highways of this state, V-1 Oil sought to obtain a refund of the “fees” it had paid and to have the fee declared unconstitutional under Article VII, Section 17 of the Idaho Constitution. V-1 Oil filed a motion for summary judgment on both the constitutionality of the transfer fee and V-1 Oil’s entitlement to a refund of those fees it has paid. The Trust Fund filed a cross motion for summary judgment on the constitutionality of the transfer fee. On December 13, 1993, the district court issued a memorandum decision and order granting V-1 Oil’s motion in part and denying the Trust Fund’s motion. The district court concluded that the petroleum transfer fee is, in effect, a gasoline tax. Because the proceeds of that tax are not dedicated to the construction and maintenance of highways as required by the Idaho Constitution, the district court held that the tax was unconstitutional under Article VII, Section 17 of the Idaho Constitution. The district court also held that the record was not sufficient to determine, as a matter of law, what remedy was available to V-1 Oil. The Trust Fund sought and was granted permission to appeal the partial summary judgment. The Trust Fund argues on appeal that the district court erred in concluding that the transfer fee constitutes a “tax on gasoline and like motor vehicle fuels” under the Idaho Constitution Article VII, Section 17. V-1 Oil seeks attorney fees on appeal. 39a Appendix C Il. STANDARD OF REVIEW When reviewing a district court’s ruling on a motion for summary judgment, this Court liberally construes the record in favor of the party opposing the motion, resolving all inferences that reasonably can be drawn from the record in that party’s favor. E.g., Friel v. Boise City Hous. Auth., 126 Idaho 484, 485, 887 P.2d 29, 30 (1994); Farm Credit Bank of Spokane vy. Stevenson, 125 Idaho 270, 272, 869 P.2d 1365, 1367 (1994). This standard is not lessened because both parties have moved for summary judgment. City of Idaho Falls v. Home Indem. Co., 126 Idaho 604, 606, 888 P.2d 383, 385 (1995); Kromrei v. AID Ins. Co., 110 Idaho 549, 551, 716 P.2d 1321, 1323 (1986). However, this Court has recently observed that “when both parties move for summary judgment on the same issues and legal theories based on the same, essentially uncontroverted facts, the record is unlikely to reveal genuine issue of material fact.” City of Chubbuck v. City of Pocatello, 127 Idaho 198, 200, 899 P.2d 411, 413 (1995). When reviewing a district court’s ruling on such motions, this Court must examine each motion separately, alternatively resolving the reasonable inferences presented by the record in opposition to each party’s motion. Id. Il. THE TRANSFER FEE IMPOSED UNDER THE IDAHO CLEAN WATER TRUST FUND ACT IS A TAX ON GASOLINE AND LIKE MOTOR VEHICLE FUELS The Idaho Constitution expressly provides that the proceeds of all gasoline taxes must be dedicated exclusively to the construction, repair, maintenance, and supervision of public 40a Appendix C highways. Article VII, Section 17 of the Idaho Constitution provides: GASOLINE TAXES AND MOTOR VEHICLE REGISTRATION FEES TO BE EXPENDED ON HIGHWAYS. On and after July 1, 1941 the proceeds from the imposition of any tax on gasoline and like motor vehicle fuels sold or used to propel motor vehicles upon the highways of this State ... shall be used exclusively for the construction, repair, maintenance and traffic supervision of the public highways of this state and the payment of the interest and principal of obligations incurred for said purposes; and no part of such revenues shall, by transfer of funds or otherwise, be diverted to any other purposes whatsoever. Idaho Const. art. VII, § 17. This Court has held that this provision is unambiguous, and the plain meaning of this section prohibits the transfer of revenues collected from taxes on motor vehicle fuels to any purpose other than construction, repair, maintenance, and supervision of public highways. Williams v. Swensen, 93 Idaho 542, 544, 467 P.2d 1, 3 (1970) (“The plain meaning of Art. 7, § 17 of the Constitution is that all moneys collected from the enumerated sources must be used for the designated purpose and may not be diverted therefrom.”);State ex rel. Moon v. Jonasson, 78 Idaho 205, 209-10, 299 P.2d 755, 757 (1956) (“The constitutional provision prohibiting the transferring of revenues specified therein to any other purpose than those enumerated is all inclusive; it was enacted by the people of the State. It is plain and unambiguous and is not 4la Appendix C subject to the construction contended for by appellant.”). Based upon our conclusion that there is no interpretation of the fund that would bring the fund within the purposes provided for in Article VII, Section 17 of the Idaho Constitution, the sole issue before this Court is whether the transfer fee is a tax on motor vehicle fuels. The Trust Fund argues that the transfer fee is a charge imposed on those who participate in the storage tank insurance program. As such, the Trust Fund argues that the transfer fee is a fee charged to provide a service, rather than a tax on gasoline. In support of this proposition, the Trust Fund relies on Kootenai County Property Ass'n v. Kootenai County, 115 Idaho 676, 769 P.2d 553 (1989). In Kootenai, this Court held that an annual solid waste disposal fee was not a tax because tha: fee was “reasonably related to the services rendered by the county in acquiring, establishing, maintaining and operating its solid waste disposal system.” Jd. at 680, 769 P.2d at 557. It is important to note at the outset that the prior cases in which this Court was required to determine whether a fee constituted a tax, involved municipal and county actions. In those cases, the question of whether the fee constituted a tax was relevant to the authority of the entity to assess the fee. In the present case, there is no dispute that the legislature has the authority to levy a tax on motor vehicle fuels, and the significance of whether the petroleum transfer fee constitutes a tax is relevant only to whether the proceeds of that fee must be dedicated to the purposes required under Article VII, Section 17 of the Idaho Constitution.” 2. Although there is no dispute that the legislature is authorized to assess and collect the fee at issue in this appeal, V-1 Oil's standing to challenge the constitutionality of the way in which the proceeds of that fee are spent has not been challenged by the Trust Fund and therefore will not be resolved by this Court on appeal 42a Appendix C In order for the transfer fee to be a “fee for service” under Kootenai, the fees collected must bear a reasonable relationship to the service provided to those paying the fee. In the present case, however, the transfer fee is not related to participation in or the opportunity to participate in the Trust Fund’s insurance program. The fee is charged to the first licensed petroleum distributor to transfer title to petroleum in Idaho “for the privilege of engaging in the delivery or storage of petroleum products[,]” I.C. § 41-4908(7), not for participating in the Trust Fund’s insurance program. This case is not analogous to Kootenai, where everyone who paid the solid waste disposal fee was entitled to the benefit of solid waste disposal services. Eligibility to participate in the insurance program is not related to payment of the transfer fee. Distributors who do not store petroleum in storage tanks in Idaho are required to pay the transfer fee although they do not participate in the insurance program, while people and entities who store petroleum in storage tanks but are not licensed petroleum distributors are entitled to participate in the Trust Fund’s insurance program without paying the fee. The per-gallon transfer fee assessed for engaging in the privilege of delivering petroleum products in this state is not, as the Trust Fund argues, a fee charged for the services provided by the Trust Fund’s insurance program. The transfer fee is levied for the express purpose of raising revenue for the Trust Fund and, as such, is a tax.See Brewster v. City of Pocatello, 115 Idaho 502, 504, 768 P.2d 765, 767 (1988) (“It is quite clear that the ordinance in question in the instant case was enacted for the purpose of raising revenue only . . . . A license that is imposed for revenue is not a police regulation, but a tax, and can only be upheld under the power of taxation.”) (quoting State v. Nelson, 36 Idaho 713, 722, 213 P.358, 361 (1923)). a 43a Appendix C The parties do not dispute that the transfer fee is levied, in part, on “gasoline and like motor vehicle fuels” within the meaning of Article VII, Section 17 of the Idaho Constitution. The Idaho Petroleum Clean Water Act defines the terms “petroleum” and “petroleum products” to expressly include “motor gasoline, gasohol, other alcohol blended fuels, diesel fuel, heating oil and aviation fuel.” I.C. § 41-4903(23). Moreover, according to the affidavits submitted by V-1 Oil, the only petroleum products relevant to this appeal are diesel fuel and gasoline. To the extent that the petroleum transfer fee has been assessed against “gasoline and like motor vehicle fuels{,]” the allocation of the proceeds of that fee to fund the Trust Fund violates Article VII, Section 17 uf the Idaho Constitution? IV. V-1 OIL IS NOT ENTITLED TO ATTORNEY FEES ON APPEAL V-1 Oil seeks attorney fees on appeal under I.C. § 12-117 and the private attorney general doctrine. I.C. § 12-117 is 3. This holding does not direct that the Idaho Petroleum Clean Water Trust Fund itself is unconstitutional. Although the mechanism used to finance the trust fund is unconstitutional, the Idaho Petroleum Clean Water Trust Fund Act provides an alternative funding mechanism to be utilized in the event that the transfer fee was held unconstitutional. The Act provides: In the event the trust fund is unable to repay the funds drawn from the state general account under the temporary line of credit established under paragraph (b) of this subsection due to the dissolution of the trust fund pursuant to a court order, then an amount mecessary to repay the line of credit shall be appropriated by the next regular session of the state legislature. LC. § 41-4904(5)(c). 44a Appendix C inapplicable. The Trust Fund is not a state agency within the meaning of I.C. § 67-5201, which is incorporated into I.C. § 12- 117 by reference. I.C. § 12-117(4)(b). The definition provided by LC. § 67-5201 provides that an “agency” is “each state board, commission, department or officer authorized by law to make rules or to determine contested cases ... .” The Trust Fund has no power to promulgate rules or decide contested cases, and is not an agency subject to attorney fees under I.C. § 12-117. We also reject V-1 Oil’s invitation to award attorney fees under the private attorney general doctrine. In Hellar v. Cenarrusa, 106 Idaho 571, 682 P.2d 524 (1984), this Court adopted a three-factor test to determine whether attorney fees should be awarded under the private attorney general doctrine. When making such a determination, this Court must consider (1) the strength of the societal importance of the public policy vindicated by the litigation; (2) the need for private enforcement and the magnitude of the resultant burden on the plaintiff; and (3) the number of people standing to benefit from the decision sought. Jd. at 577-78, 682 P.2d at 530-31; see also Miller v. Echohawk, 126 Idaho 47, 49, 878 P.2d 746, 748 (1994) (applying Hellar test to review award of fees under private attorney general doctrine). V-1 Oil filed a complaint in district court seeking a refund of all funds paid by V-1 Oil pursuant to the Idaho Petroleum Trust Fund Act. Regardless of whether V-1 Oil is entitled to such a refund, the record of the proceedings below and the arguments presented to this Court clearly establish that V-1 Oil initiated and has pursued this litigation for the limited purpose of obtaining a refund of the fees it has paid into the Trust Fund. As such, we conclude that V-1 Oil is not entitled to an award of | 45a Appendix C attorney fees under the private attorney general doctrine. Vv. CONCLUSION The district court’s order granting partial summary judgment in favor of V-1 Oil and denying the Trust Fund’s motion for summary judgment is affirmed. Costs to respondent; no attorney fees are awarded on appeal. Justices SILAK and SCHROEDER,CONCUR. Justice JOHNSON, joined by Justice TROUT, dissenting. I respectfully dissent from the Court’s opinion. So far as the record before this Court discloses, characterizing the transfer fee as a tax is in conflict withKootenai County Property Ass'n v. Kootenai County, 115 Idaho 676, 769 P.2d 553 (1989). The Court’s opinion attempts to distinguish Kootenai by Stating that in Kootenai “everyone who paid the solid waste disposal fee entitled to the benefit of solid waste disposal services,” while in this case, “[e]ligibility to participate in the insurance program is not related to payment of the transfer fee.” Slip. op 5. In my view, this attempted distinction is not borne out by the evidence presented to the trial court by V-1 Oil. In Kootenai, the Court held that because any owner of a habitable residential dwelling was eligible to use the county waste disposal site, the charge imposed on them was a fee and not a tax. 115 Idaho at 678, 769 P.2d at 555. In the present case, V-1 Oil did not show that there is any licensed distributor who pays the transfer fee who is not eligible to participate in the Trust Fund’s insurance program. 46a Appendix C For the purposes of summary judgment, V-1 Oil had the initial burden of establishing that at least one of those licensed distributors who pays the transfer fee is not eligible to participate in the Trust Fund's insurance program; only then would the Trust Fund have the burden of producing evidence to the contrary. Magic Lantern Productions, Inc. v. Dolsot, __ Idaho __, 892 P.2d 480, 482 (1995). So far as the record in this case indicates, there is no licensed distributor who pays the transfer fee who is not eligible to participate in the Trust Fund's insurance program. The record discloses that V-1 Oil has twenty-four underground storage tanks and two above ground storage tanks. In fact, V-1 Oil applied for participation in the Trust Fund’s insurance program but chose not to proceed with its application when the Trust Fund requested permission to conduct an assessment on V-1 Oil's property. The only other evidence in the record concerning the eligibility to participate in the Trust Fund's insurance program by those licensed distributors who pay the transfer fee is contained in an affidavit of the principal shareholder and operator of B-D Oil Company. B-D Oil sells to V-1 Oil a significant portion of the petroleum product B-D Oil purchases for resale. The affidavit discloses that B-D Oil “does not own or operate any underground storage tanks in the State of Idaho.” (Emphasis added). The absence of underground storage tanks does not, however, eliminate B-D Oil from participation in the Trust Fund's insurance program. The program is also available for owners or operators of above ground storage tanks, farm tanks, residential tanks, and heating tanks. I.C. § 41-4908(2), (3), and (4). It was V-1 Oil's burden to show the lack of eligibility of at least one licensed distributor who pays the 47a Appendix C transfer fee. V-1 Oil failed to carry this burden, and the trial court should not have granted summary judgment. In its opinion, the Court also focuses on the fact that “entities who store petroleum in underground storage tanks but are not licensed petroleum distributors are entitled to participate in the Trust Fund’s insurance program without paying the fee.” Slip. op. 5-6. This fact does not distinguish this case from Kootenai. In Kootenai, owners of commercial property upon payment of a charge for actual usage were eligible to use the county waste disposal site. 115 Idaho at 679, 769 P.2d 556. I would vacate the summary judgment and remand the case for further proceedings. 48a APPENDIX D — ORDER GRANTING SUMMARY JUDGMENT OF THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO FILED JANUARY 12, 1994 Kent W. Gauchay, Esq. SIMPSON, GAUCHAY & GARDNER Attorneys at Law 497 North Capital Avenue, Suite 200 P.O. Box 50484 Idaho Falls, Idaho 83405-0484 Telephone: (208) 523-2000 IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF BONNEVILLE Case No. CV-92-01129 V-1 OIL COMPANY, Plaintiff, vs. IDAHO PETROLEUM CLEAN WATER TRUST FUND, Defendant. ORDER This matter came before the Court on cross motions for summary judgment. The plaintiff appeared through counsel of record, Kent W. Gauchay of the law firm of SIMPSON, GAUCHAY & GARDNER, and the defendant appeared aaooOOoOoOoOoOerere 49a Appendix D through B. Newal Squyres and Murray Feldman from the Boise [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1553%3A1. Public record. Not legal advice.