In a split decision, Appellate Court sides with the State in NOVA funds case.
On September 13 Division II of the Washington State Appellate Court handed down their decision on Washington Off Highway Vehicle Alliance versus State of Washington. Two of the three judges ruled in favor of the State, allowing the State to get away with misappropriating 9.5 million dollars of offroad vehicle gas tax funds in 2009 and giving those funds to state parks instead of allocating them to the Nonhighway and Offroad Vehicle Activities (NOVA) account.
WOHVA and the Northwest Motorcycle Association, with representation by attorney James Buchal brought this case before the court because it is our strong belief that it is unconstitutional to use ORV gas tax money for purposes that do not benefit ORV users.
According to the Washington State Constitution gas tax collected must be used only for roads. To comply with that the state allows refunds on gas tax paid for other uses.
In 1972 the offroad vehicle community supported passage of legislation that waived their right to a direct refund of the taxes they paid for ORV fuel in exchange for having those same funds “refunded” into a dedicated account to promote and protect their sport. Later on, their ORV license tab money was added to this account too. The NOVA program was established to administer these funds.
Instead, all of the money for 2009-2010 went to State Parks and State Parks did not spend the money on offroad vehicle recreation, so this was no longer a legitimate refund for the benefit of these taxpayers.
In their ruling the court states “The legislature is entitled to great deference and it is our duty to uphold a statute as constitutional whenever possible”.
They went on to explain that “The decision to create a program as well as whether and to what extent to fund it is strictly a legislative prerogative.”
The ruling goes on further to rationalize the misappropriation of NOVA by explaining that since some of the normal NOVA fund expenditures benefit non-motorized recreationalists and those recreationalists benefit from state parks, that makes the appropriation to state park acceptable as a refund of ORV gas tax money.
We are encouraged to see that one of the three judges on the panel was able to understand the plain language of the Washington State Constitution. She stated, in part “despite the fact that we presume that statutes to be constitutional and we generally defer to the legislature in light of its plenary taxing and spending powers, I still find the appropriation here to be improper. By endorsing the State’s expansive interpretation of article II, section 40, the majority has essentially authorized the legislature to enact a NOVA excess fund balance transfer for nearly any purpose”.
At this point it is the intent of WOHVA and the NMA to take this to the next level and bring this case before the Washington State Supreme Court.
Political Action Committee Chairman – Washington Off Highway Vehicle Alliance
Legislative/Land Use Coordinator – Northwest Motorcycle Association
16015 62nd Ave NW
Stanwood, WA 98292-5680