Citizens' Group Loses Pass-Through Appeal



Yakima, WA - A Toppenish citizen's group has lost an appeal of its case against two companies and the state Utilities and Transportation Commission over a pass-through charge paid by non-Indians living within the Yakama Nation reservation.

The Washington Court of Appeals upheld an earlier decision by Yakima County Superior Court Judge Heather Van Nuys that keeps the charge on ratepayer bills.

But the group, Citizens Standup Committee, is not deterred and said it will appeal to the state Supreme Court.

"We're not surprised, but we're troubled that neither court has taken a hard look at what has happened," said Elaine Willman, executive director of Standup.

The case stems from a 2002 Yakama Nation franchise ordinance requiring Pacific Power and Cascade Natural Gas to pay 3 percent of its annual operating revenue to the tribe in exchange for access to the reservation.

The state Utilities and Transportation Commission let stand the utilities' request to pass on the fee to reservation customers.

Standup's lawyers argue the utilities passed on an invalid charge against nontribal members living within the reservation. They say nontribal members should not have to pay the charge because they have no say in tribal government and don't benefit from it.

The group also believes the case opens the door for the Yakama Nation to indiscriminately tax nonmembers.

In upholding the lower court's decision, the appeals panel cited other court rulings that establish the sovereign power of Indian governments to tax.

The court said the state Utility Commission "does not act arbitrarily or capriciously" when it allows utilities to recover valid taxes.

While Standup may have established that the franchise fee is questionable, said the court, "it is not possible to conclude the fee is clearly invalid."

The utility companies and the state Attorney General's Office, which is counsel to the commission, could not be reached Monday because of the holiday.



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