author: ANDERSON, Paul H., Justice.

text:
    AMOCO CORPORATION and Affiliates, Respondents, Relators, v. COMMISSIONER OF REVENUE, Relator, Respondent.
    Nos. C1-02-680, C3-02-681.
    Supreme Court of Minnesota.
    April 3, 2003.

      Thomas R. Muck, Fredrikson & Byron, P.A., Minneapolis, for Relators/Cross-Re-spondents.
    Mike Hatch, Attorney General, State of Minnesota, Bradford S. Delapena, James W. Neher, Assistant Attorneys General, St. Paul, for Respondent/Cross-Relator.
   OPINION

ANDERSON, Paul H., Justice.

Relators, Amoco Corporation and eight of its fully owned subsidiaries, challenge the Commissioner of Revenue’s computation of their corporate franchise taxes for the audit period from 1986 through 1990. During the audit period, relators filed Minnesota corporate franchise tax returns on a separate entity basis and paid aggregate corporate franchise taxes in the amount of $5,132,340. After conducting an audit of relators’ returns, the Commissioner concluded that Amoco Corporation was a unitary business engaged in exploration, production, refining, and marketing; the entire income of the unitary business was therefore apportionable to Minnesota. Re-lators protested through an administrative appeal.

In a separate proceeding, one of the relators, Amoco Oil Company (AOC), filed amended corporate franchise tax returns, claiming a net refund for the years 1986-1990. During this time period, AOC paid Minnesota corporate franchise taxes in the amount of $3,768,533 and as a distributor of gasoline paid Minnesota gasoline excise taxes in the amount of $215,015,749. AOC asserted that its revenue from gasoline sales was not subject to the corporate franchise tax because the gasoline excise tax is in lieu of the corporate franchise tax. The Commissioner denied the refund claims and AOC protested through an administrative appeal.

The Commissioner consolidated the protests and concluded that Amoco Corporation existed as a unitary business and that AOC was not entitled to a refund. The Commissioner issued a notice of determination on appeal stating that relators owed an additional $23,629,300.38 in taxes and interest. Relators appealed. In an order granting summary judgment in favor of the Commissioner, the Minnesota Tax Court concluded that the gasoline excise tax is not in lieu of the corporate franchise tax. The unitary business issue went to trial, after which the court concluded that Amoco Corporation’s exploration and production were not part of a unitary business with its refining, marketing, and transportation operations. The court then ordered the Commissioner to compute relators’ tax, excluding all exploration and production income. We affirm both rulings.

Amoco Corporation and its Subsidiaries

Amoco Corporation is an Indiana corporation with its principal place of business in Illinois. It fully owns over 175 subsidiaries. Amoco Corporation and its subsidiaries operate a large integrated petroleum and chemical enterprise and conduct business throughout the world. Amoco Corporation defines itself as “a parent corporation concerned with overall policy guidance, financing, coordination of operations, staff services, performance evaluation, and planning for its subsidiaries.” Operations are conducted through three principal, wholly-owned subsidiaries: Amoco Production Company (APC), Amoco Oil Company (AOC), and Amoco Chemical Company (ACC). APC and AOC are each stand-alone corporations with their own subsidiaries and operate independently from Amoco Corporation on a daily basis.

AOC is a Maryland corporation with its principal place of business in Illinois. It engages in the refining, marketing, and transportation of petroleum and related products. Specifically, AOC purchases crude oil, refines it into useful products such as gasoline, home heating fuel, and jet fuel, and then markets the refined products. The products are sold to a variety of users including AOC’s own service stations, third-party service stations, or third-party fuel oil distributors. AOC’s own stations sell retail and wholesale gasoline and other petroleum products. During the audit period, AOC did not operate a refinery in Minnesota, but it did market refined petroleum products here. AOC’s marketing operations in Minnesota primarily consisted of storing refined products in terminals and selling those products to its own service stations and to third-party service stations and fuel oil distributors.

APC explores for and finds crude oil and gas reserves around the world and brings them to the surface. After locating an oil reserve and bringing the crude oil to the surface, APC engages in the production of the crude oil, which requires treatment to separate impurities. The crude oil then passes thorough a Lease Automatic Custody Transfer Unit, also known in the industry as the “wellhead.” At the wellhead, the volume of oil that is moved to the market is measured and is “the basis on which the producer [is] paid for the crude oil that the company produced.” APC sells the crude oil at the wellhead to refiners or brokers. A competitive pricing mechanism controls the prices of crude oil, and buyers place bids on the crude oil by posting competitive field prices. During the audit period, APC did not conduct any exploration or production activities in Minnesota, nor did it have any property, payroll, or sales in Minnesota. APC is not a party in this appeal.

a.Relationship between AOC and APC

APC and AOC made their operating decisions independently from one another. APC did not consider AOC’s needs when deciding where to explore or how much crude oil to produce. It produced all the crude oil it was legally allowed to produce. AOC used the same bidding process and paid the same prices as other third parties when it purchased crude oil from APC. An employee of Amoco Corporation, the vice president of crude oil supply, set the field price used by AOC to bid on APC’s crude oil. The price was set at a competitive market rate even though it was in APC’s best interest for the price to be high and AOC’s best interest for the price to be low.

AOC purchased both proprietary and nonproprietary crude oil. Proprietary crude oil is oil in which APC has an ownership interest and nonproprietary crude oil is crude oil that another company owns when it is being produced. AOC made decisions about whether to purchase proprietary or nonproprietary crude oil based on its operational needs and without regard to the production capabilities of APC. Throughout the audit period, the percentage of proprietary crude oil produced in the United States and then refined in Amoco Corporation refineries was about 15 percent while about 24 percent was from proprietary crude oil produced worldwide.

Despite the day-to-day independence of APC and AOC, Amoco Corporation retained some centralized management control over the subsidiaries. For example, Amoco Corporation offered subsidiaries, for a fee, services such as payroll, corporate insurance, legal counsel, and lobbying. The Commissioner asserts that in 1998, APC purchased about 227 million dollars worth of these services provided by Amoco Corporation.

b. Purchasing

Examination of Amoco Corporation’s different operational areas sheds light on the extent of centralized management. We turn first to purchasing. APC and AOC each operated its own purchasing department and APC and AOC each made its own “decisions around how they ran them and how they staffed them.” No single purchasing plan applied to all of the subsidiaries, However, the general manager of purchasing for Amoco Corporation reviewed the operations of the subsidiaries’ purchasing departments with the goal of enhancing the subsidiaries’ operations. Moreover, Amoco Corporation implemented a general policy for the subsidiaries to follow. The policy was directed at procuring goods and services at the most effective price and minimizing excess supplies. In their independent operations, the subsidiaries followed this policy and thereby accessed the capabilities of Amoco Corporation to improve cost effectiveness. Amoco Corporation’s purchasing department also developed “master contracts” to assist the individual subsidiaries in purchasing their goods and supplies.

c. Personnel Policy

Amoco Corporation’s human resources department also maintained a level of control over the subsidiaries. Each subsidiary maintained its own human resources department and staff and functioned independently of Amoco Corporation’s human resources department. Nevertheless, the vice president of Human Resources for Amoco Corporation oversaw the human resources departments of the subsidiaries.

The employee compensation system illustrates how Amoco Corporation’s human resources department interacted with its subsidiaries. Amoco Corporation’s human resources department established employee compensation policies for the top 350 employees of Amoco Corporation and its subsidiaries. However, management of each individual subsidiary recommended policies for lower level employees based on that subsidiary’s specific market.

Amoco Corporation also oversaw the subsidiaries’ human resources departments by implementing a human resources corporate policy. The Amoco Personnel Policy Manuel codified “[policies governing the various aspects of employee-employer relations in all domestic operations of Amoco Corporation and its subsidiaries.” The manual set out broad policy, to be administered by each subsidiary in areas such as employee behavior, pay classifications, smoking, office environment, occupational health, and safety.

d. Budget and Financing

We next turn to the area of budget and financing. Amoco Corporation maintained some control over the financing and budget policies of the subsidiaries. For example, Amoco Corporation created one “consolidated control budget.” The budget was based on a single forecast of corporate performance for the year and encompassed the three major operating subsidiaries. Amoco Corporation also maintained some control over the financing and debt of its subsidiaries. As a general policy, subsidiaries did not borrow money on their own and major items of long-term debt were issued in the name of Amoco Corporation, not in the name of the subsidiaries. When the subsidiaries borrowed money independently, Amoco Corporation usually guaranteed their debt. Amoco Corporation also financed the subsidiaries and funded subsidiaries that needed money from internal sources. Excess working capital from the subsidiary companies was regularly transferred to Amoco Corporation.

Commissioner’s Audit

Between 1986 and 1990, relators established a tax nexus to Minnesota by conducting some business within the state. During the audit period, relators filed Minnesota corporate franchise tax returns on a separate entity basis. The Commissioner audited relators’ returns for the 1986 and 1987 tax years and on November 29,1993, issued notices of change in tax for those years. As part of the basis for the notices of change in tax, the Commissioner determined that Amoco Corporation and its subsidiaries existed as a unitary business. Relators protested the notices of change through administrative appeal.

The Commissioner then audited relators’ returns for the 1988, 1989, and 1990 tax years and on August 12, 1996, issued notices of change in tax for those years. The Commissioner again found that Amoco Corporation existed as a unitary business. Relators timely protested the August 12, 1996, notices of change through administrative appeal. On January 6, 1997, the Commissioner began a full unitary audit of relators’ business.

In a separate matter, one of the relators, AOC, filed amended corporate franchise tax returns claiming a net refund for the audit period. AOC based its refund claims on the argument that revenue from its sales of gasoline was not subject to the corporate franchise tax because AOC was subject to the gasoline excise tax. AOC claimed it was entitled to a net refund of $1,360,915. The Commissioner denied the refund claims in a Notice of Change in Tax dated December 21, 1998. On February 17, 1999, AOC protested the refund denial through an administrative appeal.

Administrative Appeal

The Commissioner consolidated AOC’s protest with relators’ two protests and issued a single notice of determination on appeal, concluding that relators owed an additional $23,629,800.38 in taxes and interest for the audit period. As part of its determination, the Commissioner found a unitary relationship existed between Amoco Corporation’s production and exploration operations and its refining, marketing, and transportation operations.

Tax Court Proceedings

In January 2000, relators filed notices of appeal with the tax court. Relators did not dispute that they are part of a unitary business; however, they argued that APC’s petroleum exploration and production operations were not part of a unitary business with the refining, marketing, and transportation operations. In its notice of appeal, AOC also maintained that because it is subject to the gasoline excise tax, income earned from the sale of gasoline is not subject to the corporate franchise tax.

a.Gasoline Excise Tax

In July 2001, the parties filed cross-motions for partial summary judgment. AOC asserted that under the in lieu provision of the gasoline excise tax statute, it was exempted from paying the corporate franchise tax. See Minn.Stat. § 296.20 (1990). The statute provides, “[gjasoline excise taxes shall be in lieu of all other taxes imposed upon the business of selling or dealing in gasoline.” Id. In response, the Commissioner argued that the in lieu provision of the statute applies only to taxes specifically imposed upon the gasoline industry; therefore, AOC is subject to both the gasoline excise tax and the corporate franchise tax because the corporate franchise tax is not imposed upon the gasoline industry in particular. The tax court issued an order denying AOC’s motion for summary judgment and granted the Commissioner’s motion for summary judgment. The court found that the in lieu provision applies only to taxes imposed specifically on the gasoline industry. Thus, the court concluded that the corporate franchise tax is not in lieu of the gasoline excise tax.

b. Unitary Business

At a trial in September 2001, relators and the Commissioner presented evidence pertaining to the unitary business issue. The Commissioner argued that the operations of APC and AOC were unitary and offered evidence to show centralization of management by Amoco Corporation over both of the subsidiaries. Relators argued that Shelly Oil Co. v. Comm’r of Taxation, 269 Minn. 351, 131 N.W.2d 632 (1964), controlled and required the tax court to conclude that APC and AOC are not in a unitary relationship. In response, the Commissioner argued that the law has changed since Shelly and that the statutory definition of unitary business has evolved along with United States Supreme Court cases. The court concluded that APC and AOC were “not of mutual benefit, dependent upon, or contributory to each other” and therefore did not constitute a unitary business.

c. Issues on Appeal

Relators filed a petition for writ of cer-tiorari with this court to review the tax court’s order of partial summary judgment. The Commissioner filed a petition for writ of certiorari to review the unitary business decision of the court. We consolidated the cases and consider two distinct issues on appeal: (1) whether APC’s exploration and production operations are unitary with AOC’s refining, marketing, and transportation operations, and (2) whether the gasoline excise tax is in lieu of the corporate franchise tax.

I.

We first consider whether APC’s exploration and production operations are unitary with AOC’s refining, marketing, and transportation operations. While review of the tax court’s factual determinations is limited to whether there is reasonable evidence to sustain the findings, Great Lakes Gas Transmission L.P. v. Comm’r of Revenue, 638 N.W.2d 435, 438 (Minn.2002) (citation omitted), we have plenary power with respect to questions of law. Watlow Winona, Inc. v. Comm’r of Revenue, 495 N.W.2d 427, 431 (Minn.1993) (citation omitted). Resolution of the issue before us here involves interpretation of statutory and case law; we review such questions de novo. Am. Nat. Gen. Ins. Co. v. Solum, 641 N.W.2d 891, 895 (Minn.2002); BFW Co. v. County of Ramsey, 566 N.W.2d 702, 704 (Minn.1997).

Taxation of interstate business activity is governed primarily by Minn. Stat. § 290.17, subd. 3 (2002). Income derived from business conducted wholly within Minnesota is assigned to this state, whereas income derived from business conducted wholly outside of Minnesota is assigned outside this state. Id. Income from multistate businesses, i.e., business conducted partly within Minnesota and partly without, is apportioned between Minnesota and the other states. Id.

In assessing the tax liability of a multistate' business, Minnesota may not tax value earned outside its borders. Comm’r of Revenue v. Assoc. Dry Goods, Inc., 347 N.W.2d 36, 38 (Minn.1984) (citing ASARCO Inc. v. Idaho State Tax Comm’n, 458 U.S. 307, 102 S.Ct. 3103, 73 L.Ed.2d 787 (1982)). However, recognizing that it is sometimes unclear what portion of a multistate business’s income is earned within the state, Minnesota adopted the unitary business principal. Id. Under the unitary business principle

[i]f a trade or business conducted wholly within this state or partly within and partly without this state is part of a unitary business, the entire income of the unitary business is subject to apportionment pursuant to section 290.191.

Minn.Stat. § 290.17, subd. 4(a) (2002). Thus, when a business is “unitary,” the apportionment formula is applied to the income of the entire business. Assoc. Dry Goods, 347 N.W.2d at 38.

In 1955 in Western Auto, we defined the term “unitary business”: a business is unitary when “the operation of the business within the state [is] ‘dependent upon or contributory to the operation of the business outside the state.’ ” W. Auto Supply Co. v. Comm’r of Taxation, 245 Minn. 346, 356, 71 N.W.2d 797, 804 (1955) (citation omitted). Further, we stressed that “[t]he test of whether a business is unitary is whether its various parts are interdependent and of mutual benefit so as to form one business unit rather than separate business entities.” Id. at 357, 71 N.W.2d at 805.

In 1982, the legislature codified the unitary business principle and defined unitary business as

a number of business activities or operations which are of mutual benefit, dependent upon, or contributory to one another, individually or as a group.

Act of Jan. 15, 1982, ch. 2, art. 3, § 13, 1982 Minn. Laws 77, 95 (codified as amended at Minn.Stat. § 290.17, subd. 4(b) (1990)). The legislature also created a presumption of unity:

Unity shall be presumed whenever there is unity of ownership, operation, and use, evidenced by centralized management or executive force, centralized purchasing, advertising, accounting, or other controlled interaction.

Act of Jan. 15, 1982, ch. 2, art. 3, § 13, 1982 Minn. Laws 77, 95 (codified as amended at Minn.Stat. § 290.17, subd. 4(c) (2002)). The statutory definition of unitary business was derived from the common law definition developed in Western Auto. Assoc. Dry Goods, 347 N.W.2d at 38. From the time of its codification through the audit period at issue in this case, the statutory definition of unitary business remained substantially unchanged.

Addressing the issue of whether APC’s exploration and production operations are unitary with AOC’s refining and marketing operations, the tax court first considered whether a presumption of unity existed, as shown by unity of ownership, operation, and use. The court found that the evidence offered by the Commissioner to show centralized management failed to invoke the presumption of the statutory test for unity because Amoco Corporation’s management departments did not exercise daily operational control over AOC or APC.

Further, the tax court stated that even if the presumption of unity had been triggered, relators overcame that presumption. Noting that the statutory test requires the business activities to be of “mutual benefit, dependent upon, or contributory to one another,” the court concluded that there was no significant mutual benefit or codependency between APC and AOC. Minn.Stat. § 290.17, subd. 4(b) (1990). The court based its conclusion on evidence that APC and AOC each made capital and operational decisions independently of each other. The court held that “[t]he two businesses were distinct and driven by worldwide supply and demand, not by each other’s needs. Either business could exist on its own without significant change in operation or earning potential.”

The tax court next addressed the Shelly decision and determined that it controlled the instant case. The court first noted that the facts of Shelly are similar to the present case. The court also concluded that the definition of unitary business we used in Shelly is consistent with the statutory definition of unitary business. Reasoning that the legislature defined unitary business using a common law standard that existed when Shelly was decided, the court rejected the Commissioner’s argument that the unitary business definition adopted by the legislature extended to the constitutional limits of taxation. Thus, the court reversed the order of the Commissioner with respect to the unitary business issue and ordered the Commissioner to recompute relators’ tax, excluding all exploration and production income.

On appeal, the Commissioner argues that Shelly has been superseded by: (1) Minnesota’s adoption of a statutory unitary standard; (2) the U.S. Supreme Court’s modern analysis of unitary criteria; and (3) our use of the federal criteria in applying the Minnesota statute. In response, relators assert that Skelly controls the instant case because the legal test applied in Skelly is the same test as codified in Minn. Stat. § 290.17, subd. 4(b) (1990). We must therefore examine Skelly in detail to determine whether it is still relevant to our analysis.

The oil company in Skelly produced and sold crude oil and natural gas, refined crude oil, and marketed the refined products. Skelly, 269 Minn, at 852, 181 N.W.2d at 634. The company was organized into two discrete operating departments: (1) exploration and production, and (2) marketing and refining. During the audit period, 1951-1955, the exploration and production operations took place entirely outside of Minnesota. Id. However, the marketing and refining operations were conducted partly within and partly without Minnesota. The production department made decisions about exploration and production independently and without input from the manufacturing or marketing departments and without regard to the needs of the refineries. Id. at 353-54, 131 N.W.2d at 635.

Crude oil produced by Skelly was sold at the place of production, the wellhead. Id. at 354, 131 N.W.2d at 635. All sales of crude oil were made at competitive posted field prices. Id. at 355, 131 N.W.2d at 636. When purchasing crude oil from the production department, the marketing department paid the posted field price. Id. at 355-56, 131 N.W.2d at 636. The majority of Skelly crude oil was sold to third parties; only 7.49 to 9.32 percent of Skelly’s crude oil was refined at Skelly’s refineries. Id. at 362,131 N.W.2d at 640.

During the audit period, Skelly filed Minnesota tax returns, including in the returns only income derived from its manufacturing and marketing operations. Id. at 358-59, 131 N.W.2d at 637-38. The Commissioner determined that Skelly owed additional taxes from its production income. Skelly appealed the decision to the Board of Tax Appeals. The board found that “the taxpayer was engaged in two separate businesses, that of ‘producing’ and that of ‘marketing.’ ” Id. at 362, 131 N.W.2d at 640. The board concluded that the business of producing was not dependent upon the business of marketing, the businesses could operate independently of each other, and that production income was earned entirely at the wellhead and not increased by the activities of manufacturing and marketing. Id. at 365, 131 N.W.2d at 641^2. However, the board concluded that the two businesses were “integrated” and that a percentage of production income should be allocated to Minnesota for tax purposes. Id. at 366, 131 N.W.2d at 642.

On appeal, we concluded that Skelly’s production operations and marketing operations constituted separate independent businesses because Skelly’s production operations were carried on wholly outside of Minnesota and its income earned at the wellhead. Id. at 370-71, 131 N.W.2d at 644-45. Applying the unitary business definition developed in Western Auto, we stated

the board could scarcely have been thinking in terms of “mutual benefit,” having found that Skelly’s marketing was of no benefit to its production operations since all production income was “fully earned” at the point where the crude oil was available for sale or transfer at a posted field price. Neither could the board have been thinking in terms of dependency since it had found that production was “in no way dependent upon the business of marketing.”

Id. at 370-71,131 N.W.2d at 645.

While the Commissioner correctly points out that Shelly was decided before the legislature codified the unitary business principle, this does not make Shelly irrelevant to the present case. We analyzed Shelly in the context of the unitary business definition developed in Western Auto. Id. (citing Western Auto and its definition of unitary business). In Western Auto, we defined unitary business using the terms “dependent upon,” “contributory to,” and “mutual benefit.” Western Auto, 245 Minn, at 356, 71 N.W.2d at 804. The statutory definition of unitary business pertinent to this case reads as follows “business activities or operations which are of mutual benefit, dependent upon, or contributory to one another, individually or as a group.” Minn.Stat. § 290.17, subd. 4(b) (1990) (emphasis added). The highlighted language above mirrors the language set forth in Western Auto. Therefore, Shelly’s definition of unitary business is indistinguishable from the statutory definition effective during the audit period. Thus, although we decided Shelly under the common law definition of unitary business rather than the statutory definition, it is still relevant to the present case. We conclude that the tax court did not err by using Shelly to support its determination that APC’s exploration and production operations are not unitary with AOC’s refining and marketing operations.

As previously noted, the Commissioner also argues that Shelly is inapposite because it has been superseded by federal law. The Commissioner contends that we have equated the state and federal unitary business standards and in so doing, used evolving federal criteria when defining the state standard. Specifically, the Commissioner argues that we have judicially adopted federal criteria for ascertaining when the unitary business standard has been satisfied and those criteria are functional integration, centralized management, economies of scale, loans, and loan guarantees.

The federal criteria the Commissioner points to were defined in Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 178, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983). The issue in Container Corp. was whether application of California’s unitary business principle and apportionment formula to Container Corporation was permissible under the United States Constitution. Id. at 162-63, 103 S.Ct. 2933. In Container Corp., the Court developed the “flow of value” definition of unitary business by stating that “[t]he prerequisite to a constitutionally acceptable finding of unitary business is a flow of value.” Id. at 178, 103 S.Ct. 2933. Additionally, the Court stated “a relevant question in the unitary business inquiry is whether ‘contributions to income [of the subsidiaries] resulted] from functional integration, centralization of management, and economies of scale.’ ” Id. at 179, 103 S.Ct. 2933 (citations omitted). Finally, the Court agreed with the state court that taken together the following factors indicate the existence of a unitary business: assistance in obtaining equipment and filling personnel heeds, lending funds, guaranteeing loans, interplay in corporate expansion, technical assistance, and supervisory role in providing general guidance to the subsidiaries. Id. Based on these legal principles, which define the constitutional limits of the unitary business principle, the Court concluded that the state court’s decision that Container Corporation was in a unitary relationship with its subsidiaries was constitutionally permissible. Id. at 180, 103 S.Ct. 2933.

In support of its position that we have relied on the federal criteria articulated in Container Corp. when applying Minnesota’s statutory unitary business principle, the Commissioner cites to three cases, decided after the 1982 codification of the unitary business standard: Hercules Inc. v. Comm’r of Revenue, 575 N.W.2d 111 (Minn.1998); Caterpillar, Inc. v. Comm’r of Revenue, 568 N.W.2d 695 (Minn.1997); Watlow Winona, Inc. v. Comm’r of Revenue, 495 N.W.2d 427 (Minn.1993). Rela-tors respond by asserting that in these eases we were addressing the constitutional limits of unitary business, not analyzing unitary business under the statute; therefore, any reliance on federal law in these cases is irrelevant.

We first turn to Hercules, where the issue addressed was whether income from the sale of a business should be classified as nonbusiness or business income for purposes of determining a nondomieiliary corporation’s income tax. Hercules, 575 N.W.2d at 114. The issue was not whether the business was unitary under the statute. We determined that the income at issue was nonbusiness income and therefore not apportionable to Minnesota. Id. at 116. We then concluded that even if the income qualified as business income, apportionment of that income to Minnesota would violate the Due Process Clause of the United States Constitution. Id. Considering the constitutionality of apportioning a nondomieiliary corporation’s income from an intangible asset, we stated that due process is satisfied when either “the taxpayer and the corporation that was the source of the income have a unitary business relationship, or that the intangible asset served ‘an operational rather than an investment function.’ ” Id. at 116 (quoting Allied-Signal, Inc. v. Dir., Div. of Taxation, 504 U.S. 768, 787, 112 S.Ct. 2251, 119 L.Ed.2d 533 (1992)). We then went on to espouse the constitutional rule developed in Container Corp. that a unitary relationship requires a “flow of value,” and reiterated the test for finding a unitary business relationship: “functional integration, centralization of management, and economies of scale.” Id. Thus, in Hercules we addressed the unitary business principle in the context of due process and the constitutional limitations of that principle. We did not have occasion to consider the unitary business principle under the statutory definition found in MinmStat. § 290.17, subd. 4(b) (1990).

As in Hercules, the issue in Caterpillar was not whether the business was unitary. In Caterpillar, we addressed the issue of whether Minnesota’s corporate excise tax system facially discriminated against foreign commerce. Caterpillar, 568 N.W.2d at 696. The parties stipulated to the facts, including the fact that Caterpillar operated as a unitary business. Id. In a footnote, we defined unitary business as “[c]orpora-tions * * * related through common ownership, management, and/or functional integration so that a ‘flow of value’ and significant mutual interdependence exists between the corporations.” Id. at 696 n. 1. In support of this definition, we cited to both Minn.Stat. § 290.17, subd. 4, and Container Corp. Nevertheless, this footnote is mere dicta because the parties had stipulated that the business was unitary.

Finally, we turn to Watlow Winona. The Commissioner contends that in Wat-low Winona we “listed relevant unitary ‘factors’ from Container Corp., then upheld a finding of unitariness under Minn. Stat. § 290.17, subd. 4(b),” relying on those very factors. The Commissioner misconstrues our reasoning in Watlow Wi-nona. In Watlow Winona, the parties acknowledged facts necessary to establish a rebuttable presumption of unitariness and we therefore focused on whether Wat-low Winona had rebutted the presumption. Watlow Winona, 495 N.W.2d at 431-32. When addressing Container Corp., we said that it “is the leading case discussing the boundaries of unitary taxation.” Id. at 432 (emphasis added). Thus, we discussed the federal criteria in the context of defining the constitutional parameters of the unitary business principle. We did not equate the constitutional limits of the unitary business principle with the statutory definition of unitary business. Further, Watlow Winona was decided under both the United States Constitution and Minnesota’s income tax statute. See Watlow Winona, 495 N.W.2d at 428. Thus, as re-lators argue, for purposes of Watlow Wi-nona, we did not separate the statutory unitary business issue from our analysis of the constitutional issue. Finally, although we did note that some of the same factors were present in Watlow Winona as in Container Corp., contrary to the Commissioner’s argument, this does not constitute judicial acceptance of federal criteria. We examined the Container Corp. factors and concluded that in the aggregate the factors supported the tax court’s finding that the taxpayer failed to prove it was not engaged in a unitary business. Id. at 432. By addressing the issue in terms of the Container Corp. factors, we determined both whether the finding of unitariness was constitutional and whether the presumption had been rebutted in a single analysis.

After conducting a close examination of Hercules, Caterpillar, and Watlow Winona, we conclude that these cases demonstrate that we have not yet embraced the Container Corp. factors as part of Minnesota’s statutory standard for unitary businesses. Thus, the next step in our analysis is consideration of whether we should use those factors in applying the statute. Because we cannot ascertain a valid reason to apply a standard different from that articulated by the legislature, we conclude that we should not use the Container Corp. factors.

Our legislature expressly adopted a common law standard when it enacted the statute applicable to this case. While the Supreme Court has established due process limits of the unitary business principle using a test that is arguably broader than the statutory definition applicable to this case, the legislature did not change the statute to reflect the constitutional standard until 1999, after the audit period in question here. Minn.Stat. § 290.17, subd. 4(b) (2002) (defining unitary business as “activities or operations which result in a flow of value between them”). Moreover, the statutory presumption of unity also illustrates that the legislature did not intend the unitary business statute to reach the constitutional limits of taxation. Under the statutory presumption, unity is presumed whenever there is “unity of ownership, operation, and use.” Minn.Stat. § 290.17, subd. 4(c). Criteria such as: centralized management, purchasing, advertising, and accounting are evidence of a unity. Id. These criteria are derived from the Supreme Court’s definition of unitary business. Butler Bros. v. McColgan, 315 U.S. 501, 508, 62 S.Ct. 701, 86 L.Ed. 991 (1942) (discussing unity of use, management, and ownership). However, these criteria are not the ultimate test. By proving the existence of these factors, the Commissioner only establishes a presumption of unity, indicating that the presumption can be overcome by a showing of the actual statutory factors that the businesses are “of mutual benefit, dependent upon or contributory to” one another. Therefore, the federal criteria articulated in Container Corp. are not applicable to our analysis; rather, we must interpret the statute’s language as it is articulated in Shelly. Accordingly, we are to determine whether APC’s exploration and production operations are “of mutual benefit, dependent upon, or contributory” to AOC’s refining and marketing operations. Minn.Stat. § 290.17, subd. 4(b) (1990).

Having established the proper definition for a unitary business, we now must determine whether the tax court properly found that APC’s exploration and production operations were not engaged in a unitary business with AOC’s refining, marketing, and transportation operations. A determination of unitariness is a mixed question of law and fact, but is “basically factual.” Watlow Winona, 495 N.W.2d at 431 (citation omitted). We review the tax court’s findings of fact to determine whether there is sufficient evidence to support the tax court’s decision. /⅞ see also Great Lakes Gas Transmission L.P., 638 N.W.2d at 438.

We conclude that there is sufficient evidence to support the tax court’s conclusion that APC’s exploration and production operations were not unitary with AOC’s refining and marketing operations. As the court found, APC and AOC made their operational decisions independently. APC produced all of the crude oil it was legally permitted to produce and based its production on market demands, not on the needs of AOC. Similarly, AOC purchased crude oil based on its operational needs, not based on the production capabilities of APC. AOC also purchased the crude oil at the competitive posted field price. Moreover, on a day-to-day basis, APC and AOC operated independently from each other and Amoco Corporation.

We also conclude that the factors present in Shelly, on which the tax court relied to conclude that a unitary relationship did not exist, are also present here. In Shelly, the court based its conclusion that the business was not unitary on evidence that the income from the production operations was “fully earned” at the wellhead, where the crude oil was available for sale or transfer. Shelly, 269 Minn, at 370-71, 131 N.W.2d at 645. Moreover, the court also noted that the production operations were not dependent upon the marketing operations. Id. Here, APC earned its income at the wellhead, where it sold its crude oil at the posted field price to all buyers, including AOC. Also, APC’s production was not dependent upon the refining and marketing operations. APC did not base the amount of crude oil it produced on AOC’s refining needs and nationally sold around 85 percent of its crude oil to outside businesses. Therefore, we conclude that there is sufficient evidence to support the tax court’s finding that APC’s exploration and production operations are not in a unitary relationship with AOC’s refining, marketing, and transportation operations. Accordingly, we hold that the tax court correctly determined that the Commissioner must compute relators’ tax excluding all of APC’s exploration and production income from the computation.

II.

We next consider whether AOC, which is subject to the gasoline excise tax, is also subject to the corporate franchise tax. The issue presented, whether the “in lieu” provision of the gasoline excise tax exempts distributors of gasoline from the corporate franchise tax, is one of statutory construction. We review de novo the tax court’s construction of the gasoline excise tax and the corporate franchise tax. See A & H Vending Co. v. Comm’r of Revenue, 608 N.W.2d 544, 546-47 (Minn.2000). “[T]he most basic rule of statutory construction” provides that when the language of a statute is clear and unambiguous, the plain meaning of the statute controls. Green Giant Co. v. Comm’r of Revenue, 534 N.W.2d 710, 712 (Minn.1995); Minn. Stat. § 645.16 (2002) (providing that courts shall not disregard the letter of the law when a statute’s language is clear and unambiguous).

The Minnesota legislature enacted the gasoline excise tax in 1925, one year after Minnesota citizens authorized such a tax by amending the constitution. See Act of Apr. 21, 1925, ch. 297, 1925 Minn. Laws 369 (codified as amended at Minn.Stat. §§ 296.01-.421 (1990)). The gasoline excise tax was a “special tax” imposed upon the business of dealing in gasoline, with the purpose of raising revenue for maintenance and construction of the Trunk Highway System. Op. Att’y Gen. No. 86A-34 (Apr. 24, 1924); Minn. Const., of 1857, art. IX § 5 (1924). The 1925 act imposed an excise tax of 2 cents per gallon “on all gasoline used in producing or generating power for propelling motor vehicles used on the public highways of this state.” Act of Apr. 21, 1925, ch. 297, § 2, 1925 Minn. Laws 369, 370 (codified as amended at Minn.Stat. § 296.02, subd. 1 (1990)). The act created a presumption that all gasoline produced or brought into the state is intended for use in motor vehicles. Act of Apr. 21, 1925, ch. 297, § 9, 1925 Minn. Laws 369, 372 (codified as amended at Minn.Stat. § 296.16, subd. 1 (1990)). Therefore, the tax was payable by distributors of gasoline. See Ameson v. W.H. Barber Co., 210 Minn. 42, 47, 297 N.W. 335, 338 (1941). Finally, the legislature provided that the tax “shall be in lieu of all other taxes imposed upon the business of selling or dealing in gasoline, whether imposed by the state or by any of its political subdivisions, but shall be in addition to all ad valorem taxes now imposed by law.” Act of Apr. 21, 1925, ch. 297, § 13, 1925 Minn. Laws, 369, 374 (codified as amended at Minn.Stat. § 296.20 (1990)).

The corporate franchise tax was enacted in 1933. Act of Apr. 21, 1933, ch. 405,1933 Minn. Laws 688. The act imposed a tax on the net income of corporations for “the privilege of existing as a corporation.” Act of Apr. 21, 1933, ch. 405, § 2, 1933 Minn. Laws 688, 690 (codified as amended at Minn.Stat. § 290.02 (2002)). Revenue from this tax was to be paid into an “Income Tax School Fund” to be distributed to all the Minnesota school districts. Act of Apr. 21, 1933, ch. 405, § 57, 1933 Minn. Laws 688, 726. While the gasoline excise tax applied only to distributors of gasoline, the franchise tax applied to “every domestic and foreign corporation.” Act of Apr. 21, 1933, ch. 405, § 2, 1933 Minn. Laws 688, 690. But the legislature did exempt certain corporations and organizations from the franchise tax.

In its summary judgment order, the tax court considered the plain language of the gasoline excise tax and concluded that the phrase “imposed upon the business of selling or dealing in gasoline” acted as a limitation on the words “all other taxes.” Thus, the court concluded that the “in lieu” provision applies exclusively to taxes imposed upon the gasoline industry in particular. Next, the court determined that the corporate franchise tax, a tax imposed on the privilege of existing as a corporation, is not a tax imposed upon the business of selling or dealing in gasoline. Therefore, the court concluded that gasoline distributors are subject to the corporate franchise tax.

The tax court then concluded that even if the language of the statute were ambiguous, legislative history supports its conclusion. The court noted that the gasoline excise tax and the corporate franchise tax cover entirely separate subject matters. The gasoline excise tax was an additional tax imposed upon gasoline distributors for the privilege of distributing gasoline, whereas the corporate franchise tax was imposed upon corporations for the privilege of doing business in Minnesota. The court then noted that while the corporate franchise tax exempts certain corporations from the tax, it does not exempt distributors of gasoline. Lastly, the court explicitly rejected AOC’s contention that the legislature chose not to exempt gasoline distributors from the corporate franchise tax because the gasoline excise tax already removed them from the corporate franchise tax.

AOC contends that the clear language of the gasoline excise tax supports its position that the in lieu provision encompasses all other taxes imposed upon distributors of gasoline. To support its position, AOC engages in a word-by-word analysis of the phrase “in lieu of all other taxes imposed upon the business of selling or dealing in gasoline.” (Emphasis added.) Crucial to AOC’s analysis is its contention that the words “imposed upon” mean “payable by.” Further, AOC argues that the legislature used the term “the business” to clarify that the gasoline excise tax is payable by a business, as a legal entity, rather than by a consumer of gasoline. AOC concludes that “the business” means “the payer of the gasoline tax,” which means the distributors because they are the entity that pays the tax.

Under AOC’s reasoning, the sentence at issue means in lieu of all other taxes payable by distributors of gasoline. We find AOC’s reasoning unpersuasive. AOC ends its analysis at the word “business” and neglects to give meaning to the last part of the phrase “of selling or dealing in gasoline.” The rules of statutory interpretation require courts to give effect to all of the statute’s provisions. Minn.Stat. § 645.16 (2002). Adding the last part of the phrase to AOC’s construction of the sentence creates the following phrase: in lieu of all other taxes payable by distributors of gasoline selling or dealing in gasoline.

In contrast to AOC’s interpretation of the statute, the Commissioner adopts the reasoning of the tax court. The tax court concluded that the phrase “imposed upon the business of selling or dealing in gasoline,” following the phrase “all other taxes,” illustrates that the legislature intended to limit the in lieu provision to taxes imposed specifically on the gasoline industry. The court found that any other reading would render part of the phrase superfluous. We agree.

If the legislature had intended the in lieu provision to apply to all taxes imposed upon gasoline distributors, the legislature could have ended the phrase at “all other taxes.” The provision would read, the gasoline excise tax shall be in lieu of all other taxes. Ending the phrase at “all other taxes” would shelter distributors of gasoline from all other taxes. However, the legislature did not end the sentence at “all other taxes,” and meaning must be given to the rest of the sentence. Under AOC’s construction of the statute, the words “selling or dealing in gasoline” become superfluous. Thus, AOC’s construction of the statute contravenes the rules of statutory construction.

Looking at the plain language of the statute, we conclude that the phrase “imposed upon the business of selling or dealing in gasoline” connotes a tax on the transaction of selling or dealing in gasoline. Therefore, we conclude that the phrase “imposed upon the business of selling or dealing in gasoline” indicates that the in lieu provision applies only to taxes imposed specifically on the transaction of selling or dealing gasoline.

The plain language of the corporate franchise tax also supports our conclusion. The corporate franchise tax was passed eight years after the gasoline excise tax. The corporate franchise tax expressly exempts specific corporations and organizations from the tax. Act of April 21, 1938, ch. 405, § 5, 1933 Minn. Laws 688, 691-92 (codified as amended at Minn.Stat. § 290.05, subd. 1 (2002)). Gasoline distributors are not one of the corporations or organizations originally exempted from the tax, nor were they specifically exempted from the corporate franchise tax in effect during the audit period at issue here. Minn.Stat. § 290.05, subd. 1 (2002).

Nevertheless, AOC argues that the absence of a specific exemption for gasoline distributors in the corporate franchise tax is irrelevant. First, AOC argues that if the legislature intended gasoline distributors to pay the franchise tax in addition to the gasoline excise tax, the legislature would have exempted the franchise tax from the in lieu provision of the gasoline tax. Second, AOC contends that when the legislature adopted the franchise tax, it was aware of the gasoline excise tax and saw that it was unnecessary to duplicate the exemption.

AOC’s arguments here also fail. Under the rules of statutory interpretation, “[w]hen the provisions of two or more laws passed at different sessions of the legislature are irreconcilable, the law latest in date of final enactment shall prevail.” Minn.Stat. § 645.26, subd. 4 (2002). Under AOC’s interpretation of the in lieu provision, the provisions of the gasoline excise tax and the corporate franchise tax are irreconcilable. According to AOC, the gasoline excise tax includes the franchise tax within its in lieu provision, thereby sheltering distributors from paying the franchise tax. However, on its face, the franchise tax applies broadly to all corporations and does not exclude gasoline distributors from the tax. Applying the rules of statutory interpretation, the corporate franchise tax was enacted after the gasoline excise tax and its terms should prevail.

For the reasons stated above, we conclude that the gasoline excise tax is in lieu of all other taxes imposed specifically upon the transaction of selling or dealing in gasoline. The corporate franchise tax is not included in the in lieu provision because the franchise tax is imposed on all corporations doing business in Minnesota, not on the gasoline industry in particular. Accordingly, we hold that the tax court properly concluded that AOC is subject to both the gasoline excise tax and the corporate franchise tax.

Affirmed.

GILBERT, J., took no part in the consideration or decision of this case.

      . When a business is carried on partly within and partly without Minnesota, an apportionment formula, as opposed to geographic accounting, is used to determine the amount of income that is subject to taxation in Minnesota. The formula consists of three factors: sales, property, and payroll. Minn.Stat. § 290.191, subd. 2 (2002).

      . During the audit period, "unitary business” was defined as follows:
      business activities or operations, which are of mutual benefit, dependent upon, or contributory to one another, individually or as a group. The term may be applied within a single legal entity or between multiple entities and without regard to whether each entity is a corporation, a partnership or a trust.
      Minn.Stat. § 290.17, subd. 4(b) (1990). In 1999, the legislature amended the definition of unitary business to "activities or operations which result in a flow of value between them.” Act of May 25, 1999, ch. 243, art. 2, § 22, 1999 Minn. Laws 2054, 2076 (codified at Minn.Stat. § 290.17, subd. 4(b) (2002)).

      . The Board of Tax Appeals was the predecessor to the Minnesota Tax Court.

      . See Minn. Const, of 1857, art. IX § 5 (1924) (authorizing the state to levy an excise tax on either gasoline or “the business of dealing in selling or producing” gasoline, used to power motor vehicles, with proceeds of the tax to fund the Trunk Highway System).

      . The Trunk Highway System consisted of 70 public highways to be constructed, improved, and maintained by the state, and was created by a constitutional amendment in 1920. Minn. Const, of 1857, art. 16 (1920).

      . Minnesota Statutes § 296.02, subd. 1, was repealed in 1998 and recodified as Minn.Stat. § 296A.07, subd. 1 (2002). Act of March 18, 1998, ch. 299, § 31, 1998 Minn. Laws 308, 344.

      . Minnesota Statutes § 296.16, subd. 1, was repealed in 1998 and recodified as Minn.Stat. § 296A.18, subd. 1 (2002). Act of March 18, 1998, ch. 299, § 31, 1998 Minn. Laws 308, 344.

      . Minnesota Statutes § 296.20 was repealed in 1998 and recodified to Minn.Stat. § 296A.12 (2002). Act of March 18, 1998, ch. 299, § 31, 1998 Minn. Laws 309, 344.

      . The corporations and organizations originally exempted from the act include the following: national and state banks, corporations engaged in the business of mining or producing iron ore, insurance companies, fraternal beneficiary associations, co-operative, or mutual rural telephone associations, corporations engaged in the business of lending money to home builders, labor, agricultural, and horticultural organizations, farmers, public charities, corporations organized for scientific, literary or artistic purposes, business leagues and commercial clubs, clubs organized and operated for pleasure, recreation or other nonprofitable purposes, any corporation owned by the United States or the state of Minnesota. Act of Apr. 21, 1933, ch. 405, § 5 1933 Minn. Laws 688, 691-92 (codified at Minn.Stat. § 290.05, subd. 1 (2002)).


source: Caselaw Access Project

author: /s/Kathleen A. Blatz Chief Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Brian J. PETERSON, an Attorney at Law of the State of Minnesota.
    No. CX-00-2049.
    Supreme Court of Minnesota.
    April 3, 2003.
   ORDER

The above-entitled matter came on for hearing before the court sitting en banc on April 3, 2003. The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Brian J. Peterson has committed professional misconduct warranting public discipline. The petition alleged, and the referee agreed, that Peterson filed an attorney’s lien against a client’s homestead with a fabricated waiver of the homestead exemption in violation of Minn. R. Prof. Conduct 1.8(j), 3.1, 3.4(b), 8.4(c) and 8.4(d). On October 25, 2002, the referee recommended that Peterson be suspended indefinitely for these violations with the right to apply for reinstatement no earlier than February 1, 2003.

Peterson was suspended on February 1, 2001 for an earlier disciplinary infraction, with eligibility to apply for reinstatement six months from that date. Peterson did not apply for reinstatement, and the ongoing investigation, hearings, and appeal in this matter has resulted in a 26-month suspension for Peterson.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED THAT:

1. The findings of the referee are affirmed, and Peterson’s conduct is in violation of Minn. R. Prof. Conduct 1.8(j), 3.1, 3.4(b), 8.4(c) and 8.4(d).

2. The recommendations of the referee as to the length of Peterson’s suspension are affirmed.

3. As the referee recommended that Peterson remain suspended “until at least February 1, 2003,” and that date is already past, Peterson is immediately eligible to petition for reinstatement pursuant to Rule 18, Rules on Lawyers’ Professional Responsibility (RLPR).

4. The decision to grant or deny the reinstatement request shall be expedited. Should the Director determine that a panel hearing is necessary, as permitted by Rule 18(c), RLPR, such hearing shall take place no more than 30 days after Peterson’s application for reinstatement.

5. If Peterson has already successfully completed the professional responsibility portion of the bar examination pursuant to Rule 18(e), RLPR, subsequent to being suspended on February 1, 2001, he is not required to take the examination again. If he has not successfully completed the examination, he shall have twelve months to complete it successfully.

6. So as not to delay the reinstatement process, this order is issued with an opinion to follow.

BY THE COURT:

/s/Kathleen A. Blatz Chief Justice


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Elizabeth Jane SUNDBY, a Minnesota Attorney, Registration No. 206283.
    No. C5-02-1203.
    Supreme Court of Minnesota.
    April 4, 2003.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition and supplementary petition for disciplinary action alleging that respondent Elizabeth Jane Sundby has committed professional misconduct. Respondent is also the subject of a disciplinary proceeding in North Dakota, where she is also licensed to practice law. Her North Dakota license has been suspended on an interim basis pending final determination of the allegations against her in that proceeding.

Respondent and the Director have entered into a stipulation for temporary suspension under Rule 16, Rules on Lawyers Professional Responsibility (RLPR), in this proceeding.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Elizabeth Jane Sundby is temporarily suspended from the practice of law under Rule 16, RLPR. Respondent shall comply with the requirements of Rule 26, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: MINGE, Judge.

text:
    PRAIRIE ISLAND INDIAN COMMUNITY, Respondent, v. MINNESOTA DEPARTMENT OF PUBLIC SAFETY, Respondent (C9-02-1012, C0-02-1013), Appellant (C7-02-1025), Defendant (C2-02-1028), and William J. Lawrence, Appellant (C9-02-1012, C0-02-1013), Respondent (C7-02-1025), Intervenor-Defendant (C2-02-1028), and Star Tribune, Amicus Curiae, and Mille Lacs Band of Ojibwe Indians, Respondent (C9-02-1012, C0-02-1013), Plaintiff, (C7-02-1025, C2-02-1028), v. STATE of Minnesota and Charlie Weaver as the Commissioner of the Minnesota Department of Public Safety, Respondents (C9-02-1012, C0-02-1013), Appellants (C7-02-1025, C2-02-1028), and William J. Lawrence, Appellant (C9-02-1012, C0-02-1013), Respondent (C7-02-1025), Intervenor-Defendant (C2-02-1028), and Star Tribune, Amicus Curiae.
    Nos. C9-02-1012, C0-02-1013, C7-02-1025, C2-02-1028.
    Court of Appeals of Minnesota.
    April 1, 2003.

      William J. Lawrence, St. Paul, MN, pro se appellant and intervenor.
    John A. Knapp, Eric F. Swanson, Justice Ericson Lindell, Winthrop & Wein-stine, P.A., St. Paul, MN, for respondent Prairie Island Indian Community.
    Wallace G. Hilke, Lindquist & Vennum, P.A., Minneapolis, MN, for respondent Mille Lacs Band of Ojibwe Indians.
    Mike Hatch, Attorney General, and John S. Garry, Assistant Attorney General, St. Paul, MN, for appellant Minnesota Department of Public Safety.
    Considered and decided by MINGE, Presiding Judge, PETERSON, Judge, and HUDSON, Judge.
   OPINION

MINGE, Judge.

The state of Minnesota (State) and William Lawrence as an intervenor appeal from a summary judgment determination that the Minnesota Government Data Practices Act (MGDPA) does not require release of financial audit information submitted to the State by Prairie Island Indian Community and the Mille Lacs Band of Ojibwe Indians pursuant to tribal/state gaming compacts. The Prairie Island Indian Community and the Mille Lacs Band of Ojibwe Indians cross-appeal determinations by the district court that disclosure is not prohibited by federal law, contractual limits, or estoppel. Because we conclude that the release of at least some of the financial audit information is required under the MGDPA and that neither federal law, nor contractual limits, nor estoppel preclude disclosure, we affirm in part, reverse in part, and remand.

FACTS

Respondents Prairie Island Indian Community (Prairie Island) and the Mille Lacs Band of Ojibwe Indians (Mille Lacs) are federally recognized Native American tribal governments. In 1988, Congress enacted the Indian Gaming Regulatory Act (IGRA) that established a system for gaming on Indian land and required compacts between states and any tribes that engage in certain gaming activities. 25 U.S.C. §§ 2701, 2710(d) (1988). IGRA also established the National Indian Gaming Commission (NIGC) to provide federal oversight of Indian gaming. Id. §§ 2704, 2706.

In 1989 and 1990, respectively, Prairie Island and Mille Lacs entered into compacts with the State for Class III video games of chance. In 1991, Prairie Island and Mille Lacs entered into tribal/state compacts with the State regarding Class III blackjack. The compacts require the tribes to make certain casino financial audit information available to the State upon request. The blackjack compact provides that “[t]o the extent possible under state law,, the State shall not disclose any information obtained pursuant to such a request.” The video compact does not contain a similar limitation on disclosure by the State.

The Minnesota Department of Public Safety (DPS) has been responsible for overseeing the State’s interest in Native American gaming operations. The DPS sought and obtained certified financial statements from Prairie Island for the years 1991-1997. The DPS sought and obtained similar financial statements from Mille Lacs for the years 1991-1995 for both its Hinckley and Mille Lacs casinos. All statements were prepared by independent accounting firms in accordance with generally accepted accounting standards. Availability of those financial statements to the public is the subject of this lawsuit.

The statements at issue cover the tribes’ gaming activities in the aggregate and consist of summary, consolidated balance sheets, profit-and-loss statements, and cash-flow statements. Distributions to the respective communities and some detail regarding debt is set forth in the statements. Aside from single line-item entries, the statements do not set forth any details regarding gaming, hospitality, or retail operations, nor do the statements differentiate among or provide information about different forms of gaming. The mix and scope of gaming and other operations has changed since the date of the last statement at issue in this proceeding.

When Prairie Island provided its financial information, it reaffirmed its understanding that the DPS would not disclose the information to the public. Prairie Island only provided its audits to the DPS and to the NIGC. Prairie Island has taken steps to maintain the confidentiality of the data internally by limiting the number of its members who have access to the data. In September 2001, Prairie Island passed a formal resolution that codified the practice of restricting internal access to the audits.

Prairie Island submitted affidavits from Tribal Council President Audrey Kohnen and Finance Director Frank J. Loth regarding the nature of the audit data. Koh-nen and Loth averred that competitors could use the otherwise unavailable audit data to reduce costs in starting and maintaining casinos. Michael Opton, a gaming analyst for Nevada Gaming Publishing, averred that cumulative financial information, even if several years old, would provide significant benefit to competitors and suppliers.

During the years in question, Mille Lacs’ casinos were managed by a publicly held company, Grand Casinos, Inc. Grand Casinos, Inc. filed annual reports with the Securities and Exchange Commissioner (SEC) and those reports are available to the public. The SEC filings contain different financial information than do Mille Lacs’ audits, and the SEC filings use a fiscal year different from the fiscal year in the audits. In addition, the SEC filings contain information about other casinos managed by Grand Casinos, Inc.

Affidavits from the State indicate that significant information regarding casino and gaming activities is publicly available. Both Prairie Island and Mille Lacs submitted financial information to their association — Minnesota Indian Gaming Association (MIGA) — in 1992 and 1997 for use in MIGA’s reports concerning the economic impact of Indian gaming in Minnesota. These MIGA reports list the aggregate average gross revenue, expense, and income information. The reports do not provide financial information with respect to any individual tribe. MIGA does not release specific audit or other financial information. Various newspapers have secured and published gaming financial data. Intervenor Lawrence has published this information on the White Earth Band in his newspaper. The White Earth Band voluntarily published its audit for the year 2000 and stated it will make its audits available in the future. Various trade publications report average net revenue per day for each of the various types of casino video-gaming machines and blackjack tables and other statistics regarding casino operations for different parts of Nevada and three other states. The State has made available to the public details of the state lottery, summary information on charitable pull-tabs, and gaming and financial information on the Canterbury Park racetrack.

Neither Prairie Island nor Mille Lacs sought out and reviewed the published or publicly available reports on other Minnesota gaming operations. This includes published reports on other Minnesota tribal gaming, and extensive publicly-available financial information regarding the Minnesota state lottery, the Canterbury Park racetrack, and charitable gambling.

In February 2001, appellant William Lawrence, the publisher of the Native American Press/Ojibwe News, asked the DPS for a copy of financial audit data submitted by the Red Lake Band of Chippewa Indians. The DPS denied the request, taking the position that the financial audit data are nonpublic. Lawrence then requested an advisory opinion from the Commissioner of the Minnesota Department of Administration (Commissioner) pursuant to Minn.Stat. § 13.37 (2002). On June 6, 2001, the Commissioner issued an opinion that the Red Lake audit data are public according to the Minnesota Government Data Practices Act (MGDPA). Based on the Commissioner’s opinion, the DPS released the Red Lake data. Neither Prairie Island nor Mille Lacs has sought this information.

Thereafter, Lawrence requested financial audit information for Prairie Island and Mille Lacs. The DPS advised Prairie Island and Mille Lacs of the requests and that the DPS would release the information based on the Red Lake determination. In July 2001, the DPS asked the Commissioner to temporarily classify the tribal gaming audits as nonpublic data. On August 28, 2001, the Commissioner approved the request, classified the information as nonpublic data, and submitted its decision to the Minnesota Attorney General for review as required by Minn.Stat. § 13.06, subd. 5 (2002). The Attorney General rejected the classification of the audit data as nonpublic.

Prairie Island and Mille Lacs brought suit to preclude the DPS from disclosing the financial audit data to the public. Lawrence intervened. The parties stipulated to the issuance of a temporary injunction prohibiting such disclosure during the pendency of these actions. Prairie Island and Mille Lacs moved for summary judgment, arguing that: (1) federal law in this area preempts Minnesota law and precludes the State from releasing the audit data; (2) the tribes’ characterization of the data as nonpublic controls; (3) the State’s disclosure of the audit data would constitute a breach of contract; (4) the State is estopped from disclosing the audit data; and (5) the audit data are nonpublic trade-secret information under Minnesota law. The district court held that the audit data are nonpublic trade-secret information under Minnesota law and rejected the other arguments made by Prairie Island and Mille Lacs.

The State and Lawrence appeal the determination that the audit data are trade-secret information under Minnesota law. Prairie Island and Mille Lacs appeal the federal law, breach of contract, and estop-pel determinations of the district court. We reverse the determination that the entire audit report is trade-secret information, affirm the other determinations, and remand.

ISSUES

1. Do the federal classification of audit data as nonpublic and the federal regulatory framework preclude Minnesota from releasing financial statements of Native American casinos or preempt the Minnesota Government Data Practices Act (MGDPA) classification of such financial statements as public data?

2. Are financial statements trade secrets and therefore nonpublic data under MGDPA?

3. Did the district court correctly determine that the State’s disclosure of financial statements of Native American casinos, pursuant to a request under the MGDPA, does not constitute a breach of contract?

4. Did the district court correctly determine that the State is not estopped from disclosing financial statements of Native American casinos pursuant to a request under the MGDPA?

ANALYSIS

Each of the four issues considered in this appeal presents an independent and adequate basis for precluding disclosure of the financial audit information. Because we reverse the decision of the district court, each is considered. The district court resolved all matters in its summary-judgment decision.

On an appeal from summary judgment, this court asks two questions: “(1) whether there are any genuine issues of material fact and (2) whether the lower court erred in its application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citations omitted). Even though an appellate court may disagree with the trial court’s analysis of some issues, summary judgment will be affirmed if it can be sustained on any grounds. Myers v. Price, 463 N.W.2d 773, 775 (Minn.App.1990), review denied (Minn. Feb. 4, 1991). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

I.

The law of Native American gaming is a complex maze of federal, state, and contract law. The sovereign status of the individual Native American communities, although limited, contributes to the complexity. The first issue we face is whether federal law, by incorporation into or by preemption of Minnesota state law, protects the financial statements from disclosure.

A. Does the MGDPA adopt the federal classification?

Prairie Island and Mille Lacs argue that the audit data are classified as nonpublic data under federal law, that the State has incorporated federal classifications by reference, and that as such, the data are classified as nonpublic data under the MGDPA. The federal rule is that all information received by the National Indian Gaming Commission (NIGC) is confidential. See 25 U.S.C. § 2716(a) (1988). The MGDPA reference to federal law is as follows:

All government data collected, created, received, maintained or disseminated by a state agency, political subdivision, or statewide system shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as nonpublic or protected nonpublic[.]

Minn.Stat. § 13.03, subd. 1 (2002) (emphasis added). Thus, the claim is made that under the MGDPA, if the audit data are classified by a federal law as nonpublic, the State may not disclose the data.

Federal courts have held that tribal gaming audits are considered nonpublic data under the Indian Gaming Regulatory Act (IGRA). E.g., Shakopee Mdewakanton Sioux (Dakota) Cmty. v. Hatch, No. CIV 01-1737, 2002 WL 1364113, *6 (D.Minn. June 20, 2002). The requirement that the NIGC preserve information as confidential is not a “federal law” as the term “federal law” is used in Minn.Stat. § 13.03, subd. 1. The types of federal law to which the MGDPA refers are federal statutes that classify data as nonpublic when the data are in the possession of a state agency. If the IGRA classifies the data at issue as nonpublic only when the data are in the possession of the NIGC, it is not the type of federal law that is within the meaning of Minn.Stat. § 13.03, subd. 1. This was the position recently taken by the federal court for the district of Minnesota. Shakopee Mdewdkanton, 2002 WL 1364113, at *6 (holding that IGRA classification of data only applies to data in the possession of federal government).

The Shakopee Mdewakanton decision is persuasive if not dispositive. A contrary result would import an entire universe of federal statutory and regulatory determinations limiting what may be public or nonpublic into our state statutes when there is no reason to believe that the state legislature, Congress, or federal agencies had this expansive expectation regarding the reach of the “federal” reference. Here, the IGRA places restrictions on what the NIGC may do with information obtained pursuant to the IGRA. The IGRA does not place a blanket classification of nonpublic on the audit data. Nor has NIGC used its regulatory powers to establish such a nonpublic classification for state purposes. Therefore, the requirement in IGRA that the NIGC preserve information as confidential is not a “federal law’ as the term is used in the MGDPA.

B. If the MGDPA does not adopt the federal classification, is the MGDPA preempted by the IGRA?

Prairie Island and Mille Lacs argue that even if the MGDPA does not adopt the federal classification of the audit data as confidential, the IGRA preempts the MGDPA. According to this argument, the MGDPA and the IGRA conflict with each other, and the doctrine of preemption applies so that the IGRA classification prevails over the MGDPA classification.

The United States Supreme Court has held that

[s]tate jurisdiction is preempted * * * if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.

California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216, 107 S.Ct. 1083, 1092, 94 L.Ed.2d 244 (1987) (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333-34, 103 S.Ct. 2378, 2386-86, 76 L.Ed.2d 611 (1983)). The federal court for the district of Minnesota recently held that the IGRA does not preempt application of the MGDPA. Shakopee Mdewak-anton, 2002 WL 1364113. We likewise conclude that the IGRA does not preempt the MGDPA.

II.

The district court granted summary judgment for Prairie Island and Mille Lacs, concluding that as a matter of law the audits, in their entirety, are trade-secret information. The state appeals this determination and in the alternative, argues that even if some audit data are trade-secret information, those data can be redacted and the balance of the documents should be released.

Citizens’ access to the records and files of the State and its political subdivisions is governed by the MGDPA. Minn. Stat. Ch. 13 (2002). This law, together with statutes such as the Open Meeting Laws, Minn.Stat. Ch. 13D (2002), the campaign finance and public disclosure laws, Minn.Stat. Ch.lOA (2002), and public proceedings of the judiciary, are part of a fundamental commitment to making the operations of our public institutions open to the public. In recognition of this policy, the courts construe such laws in favor of public access. See Demers v. City of Minneapolis, 468 N.W.2d 71, 73 (Minn.1991).

At the same time, we recognize and value the right of privacy in our society. See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (1998). Inevitably, these rights of access and openness and of privacy and confidentiality clash. This case illustrates such a clash. Mille Lacs and Prairie Island claim they furnished certain private financial statements to the State pursuant to law and certain compacts with the State; Lawrence — as a citizen, newspaper publisher, and Native American— and the Minnesota Attorney General’s Office claim the information is a part of the repository of documents on file with the State that is open to public inspection under the provisions of the MGDPA.

The particular provision of the MGDPA at issue is the exception to disclosure for trade-secret information which is defined by law as

government data, including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and, (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

Minn.Stat. § 13.37, subd. 1(b). The first two requirements are not at issue. The district court found and the parties agree: (1) the disputed information was supplied by Prairie Island and Mille Lacs; and (2) the two communities have made reasonable efforts to maintain the secrecy of this information. The dispute is whether, under the third requirement of the statute, the data derive independent economic value from not being known or readily ascertainable by others who can profit from their use or disclosure.

Several court decisions have dealt with the trade-secret question. One from Minnesota is especially relevant. See In re Rahr Malting Co., 632 N.W.2d 572 (Minn.2001). In Rahr, the issue was whether the tax court should be required to close portions of a property-valuation trial so that the following types of records would remain confidential: sales data, cost of grain, gross margin for malting, general and administrative expenses, dealings with a subsidiary, borrowing costs, working capital, overall profitability, selling price for malt, and quantity of product shipped to specific customers. Id. at 575. The Rahr opinion placed the burden of proof on the party claiming trade-secret status and required specificity in proving harm from disclosure. Id. at 576. The supreme court then rejected Rahr’s trade-secret and damage claims as being conclusory and remanded the case for further in-camera proceedings. Id. at 576-77. Specifically, the court rejected as conclusory an affidavit from the company’s chief executive officer that Rahr was one of only four malting companies, that Rahr had only two main customers, and that availability of the records in question to these competitors and customers would threaten Rahr’s very viability. Id. at 574-75.

In addition, a decision from the state of Washington held that the gross-revenue figures of tribal casinos are not a trade secret under the laws of that state. See Confederated Tribes of the Chehalis Reser vation v. Johnson, 135 Wash.2d 734, 958 P.2d 260 (1998). In Confederated Tribes, the tribes asserted that the information had independent economic value from not being known and that if competitors in the gambling business had this information, they could gain an advantage by calculating the relevant gaming market and market competition. Id. at 267.

Other decisions commonly cited on the issue of whether basic financial statements like balance sheets, profit-and-loss statements, and cash-flow statements are trade secrets are not helpful. Most of the cases involve financial statements along with many other types of detailed information which clearly have a very proprietary nature. See Roton Barrier, Inc. v. Stanley Works, 79 F.3d 1112, 1117-18 (Fed.Cir.1996); R & D Bus. Sys. v. Xerox Corp., 152 F.R.D. 195, 196-98 (D.Colo.1993); Centrol, Inc. v. Morrow, 489 N.W.2d 890, 894-95 (S.D.1992); see also Roger M. Milgrim, Milgrim on Trade Secrets, Vol. I § 1.09(8) (2001). The difficulty with much of the case law analysis is illustrated by Milgrim’s citation of a Minnesota case, Menter Co. v. Brock, 147 Minn. 407, 180 N.W. 553 (1920), for the proposition that the “method of accounting and records [are] not trade seeret[s].” Milgrim, supra, § 1.09(8)(e). In fact, the Brock case involved use of an off-the-shelf accounting ledger book and the principles of making entries in the book. Id. at 408, 180 N.W. at 554. The court held that when a clothing-store manager left for a competing clothing store and purchased and used the same brand of ledger book in the other store, he had not compromised a trade secret. Id.

The real challenge in this case is to determine whether relatively short, summary, consolidated balance sheets, cash-flow statements, and profit-and-loss statements for significant gambling operations derive independent economic value from not being known to or ascertainable by others. In this case, Mille Lacs and Prairie Island filed several affidavits in an effort to show the independent economic value and lack of availability of the financial information at issue and thus avoid the problems Rahr and Confederated Tribes faced in trying to convince courts that financial statements should be treated as trade secrets. The affidavits in this case allege several types of value to others and value from maintaining the confidentiality of the statements. These include value to competitors who would gain insight into the health of the party’s gambling business. This would allegedly enable competitors to break down and analyze intimate details of the business, to develop competitive marketing strategies, sales, promotions and public relations campaigns, and to know the details of the cost of products used, revenue from various operations, details of financing, and cost of personnel, all of which would give competitors an advantage.

Another type of value recited in the affidavits is that, armed with the financial information about the Prairie Island casino, prospective competitors could avoid the pitfalls a casino faces in starting up. Presumably, the audits would allow such competitors to focus on profitable strategies discoverable from the records of Prairie Island and Mille Lacs casinos without the cost of experimentation and losses they may otherwise encounter.

It is also represented that suppliers and personnel would better understand the profitability of the casino operations and because there are a limited number of suppliers, they would negotiate higher prices for the goods and services they supply. Finally, it is claimed that the information in the records is easily salable to competitors.

This court has had an opportunity to review the financial statements in question. Nothing in the statements breaks out or identifies the different types of food service, entertainment, hospitality, promotions, or gaming activity, let alone sets forth types of promotions or marketing strategies, wage rates, cost of any specific goods purchased, or fees for any category of consultant. One would have to have detailed additional financial information regarding historical operations to tease out the possible valuable uses recited in the respondents’ affidavits. Although there are some details about financing operations, they are historic and do not disclose information that is not common knowledge to borrowers in our society. In short, although the affidavits identify problems with disclosure, they appear targeted at disclosures that would be much more revealing than the audit statements at issue here.

There are five additional considerations that are relevant to whether disclosure of the audit records in question would conflict with the trade-secret exception in MGDPA. First, if data are readily ascertainable by proper means, those data cannot derive independent economic value from nondisclosure. Minn.Stat. § 13.37, subd. 1(b). Here, significant portions of the Mille Lacs’ audit data were supplied by Grand Casinos, Inc. in its SEC filings, which are publicly available. In addition, the district court found that the Minneapolis Star Tribune and the St. Paul Pioneer Press published articles between 1992 and 1995 that contained information about gross revenues and net profits at the Mille Lacs and Hinckley casinos. Because the information in the SEC filings used different accounting periods, included information about casino operations in addition to those conducted by Mille Lacs, and did not have the detail contained in the financial statements in this case, the district court concluded the SEC filings did not so compromise the data in the financial statements as to affect the trade-secret claim. However, much of the damage feared by Mille Lacs comes from having the SEC financial information, consistently complied and for multiple years, in the public domain at all. Suppliers, personnel, and established competitors have access to much of the information. Thus, it is difficult to say that an important part of the Mille Lacs information is not readily ascertainable by proper means from other sources. Because there has been no SEC source of information on Prairie Island, its position is not affected by this consideration.

Another dimension of ascertainability of information is the public nature of casino operations. The State argues that visits to casino premises will disclose the number of black jack tables, slot machines, and customer response. At least one Star Tribune article set forth this information as well as number of employees, wages, and customers per day. Armed with such information, suppliers can compare casinos and identify those which appear more profitable. Although financial statements are more specific and add to such impressionistic information, the level of confidentiality in operations that would keep competitors at bay or avoid giving an advantage to suppliers is hard to achieve. This affects the claimed value of classifying financial statements as trade secrets.

Second, the affidavits submitted by Prairie Island and Mille Lacs are thin; they summarize objections to the release of information. The State provided affidavits with exhibits and raised a series of objections to the Prairie Island affidavits. It is noteworthy that the Prairie Island affidavits do not disagree that a substantial quantity of information is available from trade publications or publicly available financial statements from publicly traded corporations in the gaming business. The State’s affidavits include examples of such detailed information. Neither Mille Lacs nor Prairie Island addresses the State’s assertion that competitors and suppliers need only visit the casino premises to assess retail prices, nature of operations, and level of business activity. Advertising strategies are available by watching the media. The financial statements at issue here are skeletal. The claimed value of this information to competitors is apparently limited as evidenced by the State’s assertion that neither Prairie Island nor Mille Lacs has sought the financial data of the Red Lake Casino. Unlike the Rahr ease where there was great detail about product and pricing and a very small, private marketplace, here we have public businesses, tens of thousands of customers, and an open marketplace. Given the abbreviated and consolidated nature of the financial statements in this case, these statements are substantially less compromising than the detailed data the tribes’ affidavits describe.

In granting summary judgment, the district court should have assumed the availability of information contained in the affidavits from the State. See Grondahl v. Bulluck, 318 N.W.2d 240 (Minn.1982) (noting that, on summary judgment motion, district court must view the evidence in the light most favorable to the nonmoving party). Rather, the district court overstates the information in the financial statements at issue and the probability of the respondents’ affidavits and disregards the significance and availability of information from other sources.

Third, the financial records are dated. Courts have recognized that financial-statement-type data lose their significance over time. See Applied Indus. Materials Corp. v. Brantjes, 891 F.Supp. 432, 438-39 (N.D.Ill.1994) (net-profit figures three or more years old not protected as trade secret); In re Agent Orange Product Liability Litigation, 104 F.R.D. 559, 575 (E.D.N.Y.1985) (important factor in determining whether disclosure will cause competitive harm is whether the information that the party seeks to protect is current or stale), aff'd, 821 F.2d 139 (2d Cir.1987); United States v. IBM Corp., 67 F.R.D. 40, 47-49 (S.D.N.Y.1975) (finding trade-secret financial data, including gross profits, three to fifteen years old not protected as trade secret). However, some courts have pointed out that highly detailed information that includes specific pricing and customer-service strategy had value from nondisclosure for an indefinite period of time. See Enter. Leasing Co. v. Ehmke, 197 Ariz. 144, 3 P.3d 1064, 1069-70 (Ct. App.1999). Prairie Island’s affidavits claim that the older balance sheets, cash flows, and profit-and-loss statements could help a competitor avoid mistakes and costs in starting up competing casinos. But older statements in a consumer-oriented business are of little significance compared to a visit to the premises to see what appeals to customers. To be sure, competitors or suppliers may be curious about financial performance more than six years ago. The harmful consequences alleged are conjectural and conclusory and are inherent in summary financial statements of consumer businesses. The primary interest in the statements appears to come from the news media, not competitors.

Fourth, a different part of the MGDPA sheds light on the classification of certain financial statements. When a business requests financial assistance from a governmental entity, financial data is typically submitted as a part of the loan or grant request. The MGDPA gives certain financial documents complete nonpublic status and others temporary nonpublic status, which is withdrawn if the assistance is granted. Minn.Stat. § 13.591, subds. 1, 2. Balance sheets and net-worth calculations lose protected status; business plans, customer lists, and tax returns keep the protected status; and income-and-expense projections unrelated to the assistance keep the protection. Id. It appears that the legislature concluded that a business with a public financial dimension gives up protected, private treatment for its basic, core financial statements, but retains it for its detailed and unique private data and for its future plans. Although we do not have any parallel legislative distinctions in connection with trade secrets generally, or gaming reports in particular, this distinction in the MGDPA is of interest. It is legislative recognition that basic financial statements like the ones involved in this case may not qualify for special protection.

Finally, there is a question whether the financial statements should be considered in their entirety or whether any actual trade-secret information can be redacted. When a document contains both public and nonpublic information, it is appropriate to redact the protected information and release the public information. Northwest Publ’ns, Inc. v. City of Bloomington, 499 N.W.2d 509, 511 (Minn.App. 1993). When a document contains both public and nonpublic information, the entire document may only be withheld if

the public and nonpublie information is so inextricably intertwined that segregating the material would impose a significant financial burden and leave the remaining parts of the document with little informational value.

Id.

The State edited the statements to indicate what could be redacted to meet the trade secret objections raised by Prairie Island and Mille Lacs. Prairie Island and Mille Lacs claimed that it would be impossible to edit the statements and that only a singularly uninformative shell would be left. The district court rejected redacting. In looking at the statements and the state’s proposal, it appears that redacting sensitive material is realistic; information is not inextricably intertwined, nor is the task burdensome. Line-item figures, parts of the text, and all or parts of certain footnotes can be easily omitted if they actually disclose trade secrets. Any value to competitors or suppliers from seeing the financial statements identified in the affidavits would be neutralized. The deletion of such information would be a simple task.

We conclude that to the extent there is any sensitive trade-secret information, the statements in question can be appropriately redacted. Because neither the district court nor Prairie Island nor Mille Lacs believed material could be successfully redacted, because we have no record as to whether any of the financial information is specifically sensitive and should not be disclosed, and because this is an appeal from summary judgment, we remand for consideration of what, if any, specific data constitute trade secrets and for redaction of that data. On remand, the district court may redact material that qualifies as trade secret or require the Departments of Public Safety and Administration to redact such material. Each party can provide a redacted document. Although this limits the informational value of the documents, it provides public access to basic information.

III.

Next we address whether the district court erred by determining that disclosure of the audit data by the State is not a breach of the blackjack compact. That compact provides that “to the [e]x-tent possible under state law the State shall not disclose any information obtained [pursuant to a request for Tribal audit data].” Furthermore, with each filing of its financial statements, Prairie Island’s cover statement recited its understanding that the Department of Public Safety (DPS) would not disclose the information to the public.

Mille Lacs claims that when the State in this dispute argues that state law allows for disclosure of the audit data, the State breaches the covenant of good faith and fair dealing that is implied in every contract. The covenant of good faith and fair dealing prohibits a party from “unjustifiably hindering]” the other party’s performance of the contract. In re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d 494, 502 (Minn.1995) (citations omitted). “Actions are done in ‘good faith when done honestly, whether it be negligently or not.’ ” Sterling Capital Advisors, Inc. v. Herzog, 575 N.W.2d 121, 125 (Minn.App.1998) (quoting Minn.Stat. § 520.01, subd. 6 (1996)). On the other hand, actions are done in bad faith when “a party’s refusal to fulfill some duty or contractual obligation [is] based on an ulterior motive, not an honest mistake regarding one’s rights or duties.” Id. (citing Lassen v. First Bank Eden Prairie, 514 N.W.2d 831, 837 (Minn.App.1994), review denied (Minn. June 29, 1994)).

Here, even if the State was negligent in forming its original belief that the audits are nonpublic, as long as the State’s action was done honestly, the State has not breached the covenant of good faith and fair dealing. There is no evidence in the record to show that the State’s conduct is based on an ulterior motive. Thus we conclude that the State did not breach the covenant of good faith and fair dealing.

Prairie Island argues that the district court erred by not considering that the intent of the parties, including the intent of the State, was for the audit data to remain nonpublic. Prairie Island argues that the blackjack compact is ambiguous and that the district court therefore should have determined the parties’ intended meaning.

If the language of a writing is not ambiguous, the court does not examine extrinsic evidence to ascertain the intentions of the parties. See Mareck v. Hoffman, 257 Minn. 222, 227, 100 N.W.2d 758, 762 (1960) (noting “[Iff the language is ambiguous, resort may be had to evidence of the surrounding circumstances, and the situation of the parties, if necessary, in order to throw light upon their intention.” (emphasis added) (quotation omitted)). “A writing is ambiguous if, judged by its language alone and without resort to extrinsic evidence, it is reasonably susceptible to more than one meaning.” Mollico v. Mollico, 628 N.W.2d 637, 641 (Minn.App.2001) (citation omitted).

The language in the compact is as follows: “to the [ejxtent possible under state law the State shall not disclose any information obtained [pursuant to a request for Tribal audit data].” The language is not ambiguous, and the district court was correct in not resorting to extrinsic evidence to determine the intent of the parties.

Not only did the State never commit to maintain the confidentiality of the information regardless of any other requirements of law such as the MGDPA, but there is another level at which the good faith and fair dealing of the State is apparent in this controversy. The agency responsible for working with the Native American communities with gaming operations is DPS. DPS consistently has resisted efforts by the news media and parties like Lawrence to obtain the information. Not until overruled by the Commissioner of Administration did DPS release the Red Lake information. Then, to accommodate Mille Lacs and Prairie Island, the Commissioner temporarily classified the audits as nonpublic until this controversy could be settled. The Attorney General overruled that determination but then reinstated the temporary nonpublic classification for the duration of litigation. On these facts, bad faith is not shown.

IV.

The final issue we consider is the claim of Prairie Island that the State should be estopped from disclosing the audit data because the of the State’s “consistent representation” that the audit data would be treated as nonpublic data.

Estoppel is an equitable doctrine “addressed to the trial court’s discretion, and which is not freely applied against the government.” In re REM-CANBY, Inc. v. Dep’t of Human Servs., 494 N.W.2d 71, 74 (Minn.App.1992) (citation omitted), review denied (Minn. Feb. 25, 1993). The elements of estoppel are: (1) the government made a misrepresentation of material fact; (2) the government knew the representation was false; (3) the government intended that its representation be acted upon; (4) the other party did not know the facts; and (5) the other party relied upon the government’s misrepresentation to its detriment. Id. But “[t]he most important element of an equitable estoppel case against the government is wrongful government conduct.” State v. Ramirez, 597 N.W.2d 575, 578 (Minn.App. 1999) (citing Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 293 (Minn.1980)). Wrongful government conduct has been interpreted to mean “affirmative misconduct.” Id. Wrongful government conduct is not present where the government’s conduct is “simple inadvertence, mistake, or imperfect conduct.” In re REM-CANBY, 494 N.W.2d at 74 (citing Mesaba Aviation Div. v. County of Itasca, 258 N.W.2d 877, 880-81 (Minn.1977)); In re Westling Mfg., Inc., 442 N.W.2d 328, 332 (Minn.App. 1989), review denied (Minn. Aug. 25, 1989).

Here, there has been no showing of affirmative misconduct by the government. The State may have been mistaken in its representations, but there is no evidence to show that the State’s conduct was affirmative misconduct. Accordingly, the State is not estopped from arguing that the data are public data.

DECISION

Because we conclude that most of the audit data do not derive independent economic value from nondisclosure, we reverse the determination that the financial statements are nonpublic data trade secrets. We remand for a determination of what, if any, audit data should be redacted. We affirm the district court’s other determinations.

Affirmed in part, reversed in part, and remanded.