A subsidiary of Siena Pacific operates several electricity-generating power plants in Nevada. Under Nev. Rev. Stat. 372.270, an exemption is given from the state use tax for the sale, storage or use of the proceeds of Nevada mines. Since the plants purchase their coal from out-of-state mines, they pay a use tax on the value of that coal. They file this action seeking to invalidate § 372.270 because it violates the Dormant Commerce Clause. The trial court finds that the exemption from the use tax for the proceeds of the sale of products from Nevada mines is a per se violation of the Dormant Commerce Clause. That issue is not disputed by the parties. Instead the issue is whether the offending language of § 372.270 may be severed from the rest of the statute and whether Sierra Pacific is entitled to a refund of over $25 million for the use taxes it paid. The trial court found the entire statutory provision unconstitutional but refused to order a refund. Held: affirmed. While there is a judicial preference to apply the severability doctrine, which in this case would allow the exemption to be applied not only to Nevada-originated minerals but to all minerals, the court looks at the purpose of the statute which was to create a very narrow exemption from the use tax. That would be defeated by greatly expanding the exemption. The court also affirms the trial court's decision not to award a refund. While Dormant Commerce Clause cases that involve discriminatory tax provisions normally require the granting of monetary damages, where there has been no actual injury, damages in the form of a refund are not required. In this case, there were no competitors of Sierra Pacific who purchased Nevada-mined coal who would have a competitive advantage because they were entitled to the exemption. Likewise, there is nothing unconstitutional about the imposition of a use tax if it does not discriminate against interstate commerce. Therefore, Sierra Pacific was paying a lawful tax because it could only be applied in a non-discriminatory manner as between Nevada-based production and non-Nevada-based production.
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