A divided Washington state Supreme Court Thursday ruled that a 2009 diversion of gas tax proceeds from off-road-vehicle recreation accounts to the Washington State Parks and Recreation Commission did not violate state constitutional restrictions on the use of the gas tax.
The case in the Washington Off-Highway Vehicle Alliance v. State of Washington
Three justices agreed with a state court of appeals decision that the recession-era diversion that softened pending cuts to the parks department was a legitimate use of gas tax revenue. Two other justices agreed with the outcome but thought the court should have dismissed the lawsuit brought by off-road-vehicle enthusiasts because the diversion had already ended and the issue was moot.
Four justices joined in a minority opinion that the diversion was unconstitutional.
The state constitution requires that all gas tax revenue be used for highway purposes such as the construction and maintenance of roads and bridges. It does allow gas tax revenues to be refunded and the Legislature has created several programs that refund portions of the gas tax when gasoline is purchased for vehicles that don’t use the highways. The refunds don’t go to individuals but for purposes that serve those individuals.
One of those refunds went for the development of facilities for off-road recreation parks and facilities. The money went to the state departments of Natural Resources, Fish and Wildlife and Parks to build and maintain recreation areas for off-roaders and later to the same agencies to develop camping and hiking facilities to benefit those who buy gas to drive to these often-remote locations on non-highway roadways.
But in 2009, in the midst of the Great Recession, the Legislature diverted some money in the account to Parks and Recreation for general purposes. That led to the legal challenge from off-road recreation advocates.
The court of appeals found that the Legislature’s diversion was legal because it had declared that the money would be used for park department salaries and most of those employees worked to manage and maintain facilities that “will benefit boaters and off-road vehicle users and others who use nonhighway and nonmotorized recreational facilities.”
Justice Susan Owens, writing for the three-justice plurality, concluded: “While the 2009 appropriation stretches the statutory refund to its constitutional limits, the legislative finding of a benefit to affected taxpayers in addition to the ample evidence in the record supports upholding the appropriation.”
And, in regard to the assertion by two justices that the case was moot because the diversion was not repeated in 2011, Owens wrote that “the issue is likely to recur as the legislature could still use (the) funds to cover other budgetary shortfalls in the future. The mere fact that sales of discover passes and day-use permits now supplement the Parks budget, does not foreclose the possibility of future budgetary shortfalls.”
Writing for the four dissenters, Justice James Johnson wrote: “I would require any expenditure of gas tax purportedly not used on highway roads under article II, section 40 to have a specifically targeted
benefit to the affected nonhighway taxpayers in order to comply with the constitutional restrictions on the expenditure of motor vehicle fuel tax revenue.
“In my view,” he concluded, “the proposed benefit to nonhighway taxpayers in the 2009 appropriation for Parks employees’ salaries is beyond attenuated so as to be fiction.”