Pourier v. Sd Dept. of Revenue & Regulation

778 N.W.2d 602

2010 SD 10

Loren POURIER d/b/a Muddy Creek Oil and Gas, Inc. and Muddy Creek Oil and Gas, Inc., Claimants and Appellants, v. SOUTH DAKOTA DEPARTMENT OF REVENUE AND REGULATION, Respondent and Appellee.

No. 25198.

Supreme Court of South Dakota.

Argued November 17, 2009.

Decided February 3, 2010.

Vanya S. Hogen, Jessica Intermill of Jacobson, Buffalo, Magnuson, Anderson & Hogen, P.C., St. Paul, Minnesota, Attorneys for claimants and appellants.

Marty J. Jackley, Attorney General, Meghan Jo Sonstegard, Meghan N. Dilges, Assistant Attorneys General, Pierre, South Dakota, Attorneys for respondent and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Loren Pourier and Muddy Creek Oil and Gas Inc. (collectively, "Pourier") appeal the circuit court's order affirming the decision of the South Dakota Department of Revenue and Regulation (Department). The Department's order denied Pourier's motion for leave to amend his tax refund claims to include his Oglala Sioux Tribe (OST) member customers as a class. The Department determined, and the circuit court agreed, that South Dakota's limited waiver of sovereign immunity precludes a class action for motor fuel tax refunds. We affirm.

FACTS

[¶ 2.] This is the third time this case has come before us. An in-depth narration of the facts can be found at Pourier v. S.D. Dep't of Revenue (Pourier I), 2003 SD 21, 658 N.W.2d 395, modified on reh'g, 2004 SD 3, 674 N.W.2d 314. We review the history of this case and recite the salient facts for purposes of this third appeal.

[¶ 3.] In Pourier I, we unanimously ruled that South Dakota motor fuel taxes were illegally collected from Muddy Creek Oil and Gas, Inc., a corporation solely owned by an enrolled member of the Oglala Sioux Tribe and located on the Pine Ridge Reservation. We decided Muddy Creek's consumers who were enrolled members of the Oglala Sioux Tribe, not Pourier and his company, bore the legal incidence of the tax; therefore, those consumers were entitled to "the bulk of [the] refund." To the extent Pourier and Muddy Creek were consumers, we held they were entitled to a refund. We reversed and remanded with specific instructions for the trial court to: 1) determine the correct amount of the invalid tax (refund) that applies to purchases by Muddy Creek for its use on the reservation; 2) determine, upon proper application, the correct amount of the invalid tax (refund) that applies to purchases by reservation Indian consumers; and, 3) determine related questions, such as prejudgment interest. Pourier I, 2003 SD 21, ¶ 38, 658 N.W.2d at 407.

[¶ 4.] After Pourier I was handed down, both Pourier and the State petitioned for rehearing. We granted the State's petition on the question of the proper limitations period for refund applications. We held that the fifteen-month limitations period is applicable under SDCL 10-47B-141, and that claims predating December 17, 1997, were untimely. We vacated Issue 4 of Pourier I and replaced it with the discussion found in Pourier v. S.D. Dep't of Revenue (Pourier II), 2004 SD 3, 674 N.W.2d 314. We specifically noted that Pourier I stands in "all other respects." Pourier II, 2004 SD 3, ¶ 2, 674 N.W.2d at 315.

[¶ 5.] On remand after Pourier II, Pourier filed a motion for leave to amend his claims to add a class of Oglala Sioux tribal-member-customer claimants. The circuit court remanded the matter to the Department. A hearing was held before a Hearing Examiner where briefs and oral arguments were considered. Prior to a final decision by the Department, Pourier stipulated to a judgment determining the amount of the refund due to him as a consumer between December 17, 1997, and November 30, 2003. However, the State and Pourier stipulated that his receipt of those funds would not preclude Pourier from appealing any final decision denying his motion for leave to amend his pleadings to include class claimants.

[¶ 6.] Subsequently, Secretary Kinsman of the Department adopted the proposed decision submitted by the Office of Hearing Examiners and issued a final decision denying Pourier's motion for leave to amend. The basis for this decision was that the State has waived its sovereign immunity in a limited fashion for motor fuel taxes claims according to SDCL 10-59-1, 10-59-17, and 10-47B-131.2. The Secretary reasoned that because class actions are not expressly permitted under those statutes, South Dakota has not waived its sovereign immunity for a class action refund lawsuit. On appeal, the circuit court affirmed the decision of the Department. Pourier appeals the circuit court's judgment. We affirm.

ISSUES

[¶ 7.] We rephrase the issues:

1. Whether SDCL ch. 1-26 or SDCL ch. 10-59 constitute an express waiver of sovereign immunity which authorizes a class action tax refund claim against the State.

2. Whether a class action lawsuit is outside the scope of the remand order of this Court.

3. Whether this case should be remanded back to the Department if Pourier is allowed to amend his pleading.

STANDARD OF REVIEW

[¶ 8.] Our standard of review for administrative appeals is provided by SDCL 1-26-36.

The statute requires us to give great weight to the findings and inferences made by the [agency] on factual questions. We examine agency findings in the same manner as the circuit court to decide whether they were clearly erroneous in light of all of the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Questions of law, of course, are fully reviewable.

Pourier I, 2003 SD 21, ¶ 6, 658 N.W.2d at 398 (citing Sopko v. C & R Transfer Co., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228) (internal citations omitted). "Statutory interpretation and application are questions of law, and are reviewed by this Court under the de novo standard of review." State v. Anders, 2009 SD 15, ¶ 10, 763 N.W.2d 547, 551 (citation omitted).

ANALYSIS & DECISION

[¶ 9.] 1. Whether SDCL ch. 1-26 or SDCL ch. 10-59 constitute an express waiver of sovereign immunity which authorizes a class action tax refund claim against the State.

[¶ 10.] The Department and circuit court properly denied Pourier's motion for leave to amend his pleadings to include class claimants. Pourier contends the circuit court and Department erred because class action claims are permitted for motor fuel tax refund claims. Pourier notes SDCL ch. 10-59 mandates that tax refund claims "shall follow the procedure established in this chapter[,]" and because that chapter does not prohibit class action claims, they are necessarily allowed. Pourier also argues that because SDCL 1-26-32.1 applies the rules of civil procedure to administrative appeals, a class action pursuant to SDCL 15-6-23(a) is possible under SDCL ch. 1-26. Therefore, Pourier contends class action claims are allowed for motor fuel tax refund claims with the Department. However, the statutory basis for administrative review of motor fuel tax refund claims and the State's limited waiver of sovereign immunity suggest an interpretation contrary to Pourier's.

[¶ 11.] The statutory basis for a motor fuel tax refund claim is found in SDCL 10-59-1, SDCL 10-59-17, and SDCL 10-47B-131.2. SDCL 10-47B-131.2 provides for motor fuel tax refund claims. It states:

A consumer of motor fuel or undyed special fuel may apply for and obtain a refund of fuel taxes imposed and paid to this state, if a state or federal court of final appeals finds that taxation of the purchase or use of the fuel is preempted by federal law or unconstitutional. If applicable, the claim shall be supported by fuel purchase invoices, odometer readings, log books and calculated on an average mile per gallon basis.

Id. (emphasis added). SDCL 10-59-17 provides:

A taxpayer seeking recovery of tax ... imposed by [SDCL ch. 10-47B] shall follow the procedure established in this chapter. No court has jurisdiction of a suit to recover such taxes ... unless the taxpayer seeking the recovery of tax complies with the provisions of this chapter.

(emphasis added). Moreover, "[a] taxpayer seeking recovery of an allegedly overpaid tax ... shall file a claim for recovery with the [S]ecretary[.]" SDCL 10-59-19 (emphasis added). Finally, SDCL 10-59-22 requires the Secretary to "determine the amount of any tax overpayment recoverable by a taxpayer. The Secretary's determination of the amount of the overpayment recoverable is, for the purposes of judicial review, a final decision in a contested case." (Emphasis added.) These statutes indicate that each taxpayer is required to pursue his claim individually with the Secretary of the Department in order to receive a final decision for appellate review. Simply put, subject matter jurisdiction of the circuit court does not attach until each taxpayer exhausts the statutory prerequisites provided in SDCL ch. 10-59.

[¶ 12.] Pourier and the dissent would have this Court adopt a type of "vicarious exhaustion" allowing a single taxpayer (Pourier) to confer jurisdiction on the circuit court on behalf of the entire class. This argument is misplaced. First, Pourier and the dissent state that SDCL 1-26-32.1, the gap-filler statute, provides for a class action claim in all administrative proceedings. SDCL 1-26-32.1 provides Title 15 shall apply "so far as the same may be consistent and applicable[.]" Id. Under the motor fuel tax refund statutes, a taxpayer seeking a refund must comply with the procedures established in SDCL ch. 10-59. SDCL 10-59-17, -47B-131.2. Those statutes outline a procedure whereby each individual taxpayer files a claim for recovery with the Secretary. SDCL 10-59-17 ("A taxpayer seeking recovery ... shall follow the procedure established in this chapter."); SDCL 10-47B-131.2 ("A consumer ... may apply for and obtain a refund[.]"); see SDCL 10-59-19 ("A taxpayer seeking recovery ... shall file a claim for recovery with the [S]ecretary[.]"). Therefore, SDCL 15-6-23 is not applicable and should not be...