Seattle Times editorial columnist Bruce Ramsey dissects a case brought by gas-station owners against Gov. Chris Gregoire concerning gas-tax compacts with Indian tribes.

Here is a lawsuit that will make news next year when the Washington Supreme Court decides it.
The case is Automotive United Trades Organization v. State. It was filed by the trade association of gas-station owners and has been accepted for review by the court. It involves the price of gasoline and diesel at tribal filling stations — and an old legal doctrine called sovereign immunity.
Start this complicated story in 2006. That year, Gov. Chris Gregoire signed deals with several Indian tribes refunding three-quarters of the state fuel tax, amounting to 28 cents, from every gallon of fuel the tribes sold. This refund, which added up to $24.6 million in fiscal 2011, gives the tribes a business advantage enjoyed by no one else. It is one more in a series of legal advantages that allow the tribes to prosper in certain markets, whether it be salmon, fireworks or casino gambling.
In defense of the gas-tax deals, the state cites federal rulings that it cannot impose a gas tax on the tribes. It imposes the tax on the nontribal importers and refiners that sell fuel to the tribes. No tribe owns a refinery or imports fuel, but under these rulings, one could — and escape the tax. The 28-cent refund is essentially a payment not to do this.
In the agreements with the state, the tribes promise to spend all the refund money on roads and things related to roads, and not share a penny of it with customers.
The free-market Washington Policy Center, which has entered the case on the side of the nontribal owners, says it surveyed eight tribal stations in Western Washington. In all of July, according to the center, the price of fuel at all eight stations was below the average price around them.
This is suggestive, but it does not prove the agreements are violated, because the penny shared with the customer may be a different penny than the one paid by the state. That wouldn't matter to an economist or a business owner, but it might to a judge.
Gregoire's brief to the court says, "nothing in [the law] obligates the tribe to sell fuel at a particular price." The tribes say they price their fuel the same as Safeway and Costco.
The nontribal owners say they are being pushed out of the market. They wanted to sue. They could not sue the tribes, because the tribes have sovereign immunity. Instead, they sued the state and the governor, arguing that the agreements are illegal under the state constitution's 18th amendment, which governs the use of the gas tax.
At Grays Harbor County Superior Court, Judge Gordon Godfrey declined to rule on that question. He accepted the state's argument, which was that the station owners could not sue without including the tribes, and that they could not sue the tribes, and therefore, on this issue, they could not sue anyone. Their lawsuit had to be thrown out.
Which Godfrey did, while expressing regret that he believed the law compelled him to do it.
Says the station-owners' attorney, Phil Talmadge, a former justice of the Washington Supreme Court:
"In other words, the state argues, any contract signed by the governor or any other executive branch officer that involves a tribe — no matter how unconstitutional or illegal the actions of the governor or that officer may be under Washington law — is immune from all judicial review."
That is the state's position — and it is ripe for review.
Bruce Ramsey's column appears regularly on editorial pages of The Times. His email address is bramsey@seattletimes.com