                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-2527
                                     ___________

Enterprise Leasing Company, doing      *
business as Enterprise Rent-a-Car,     *
a Minnesota corporation,               *
                                       *
             Plaintiff-Appellee,       * Appeal from the United States
                                       * District Court for the
      v.                               * District of Minnesota.
                                       *
Metropolitan Airports Commission,      *
a public corporation,                  *
                                       *
             Defendant-Appellant.      *
                                       *
                                  ___________

                              Submitted: February 16, 2001

                                   Filed: May 30, 2001
                                    ___________

Before RICHARD S. ARNOLD, LAY, and HANSEN, Circuit Judges.
                           ___________

LAY, Circuit Judge.

      This case presents the question of whether Minnesota law authorized the
Metropolitan Airports Commission (“MAC”) to impose an 8.5 percent gross revenue
fee on certain rental car companies doing business at the Minneapolis-St. Paul
Metropolitan Airport (“Airport”). Upon full review, we find that the district court erred
as a matter of law in holding that MAC exceeded its statutory authority by imposing
the fee.

                                          I.

       Enterprise Leasing Company is a Minnesota corporation doing business as
Enterprise Rent-A-Car (“Enterprise”). MAC is a public corporation chartered by the
State of Minnesota to manage commercial aviation services at the Airport. Minnesota
law empowers MAC to enact ordinances for the purpose of managing and operating the
Airport. See Minn. Stat. Ann. § 473.608, subd. 17 (2001).

       In 1998, MAC enacted Ordinance 85, which is the subject of this case. The
ordinance requires that all “off-Airport”1 rental car companies pay MAC a fee equal
to 8.5 percent of their gross receipts for transactions occurring on Airport property.
Enterprise is an off-Airport agency subject to the fee. Ordinance 85 is not applicable
to “on-Airport” rental car companies, but those companies also pay MAC a fee equal
to 8.5 percent of their gross revenues, as well as rental fees based on the amount of
Airport space they occupy.

      Ordinance 79 was the predecessor to Ordinance 85. That ordinance imposed an
annual permit fee, plus a $1.75 per-transaction fee, on all off-Airport ground
transportation vehicles using designated commercial lanes. In 1993, an exclusive
roadway was opened for such vehicles to pick up and drop off passengers at the
Airport. Ordinance 79 was intended to recover the actual capital and operating cost of

      1
       “Off-Airport” rental car companies pick up customers at the Airport but do not
otherwise rent space, maintain service counters, or conduct their operations on Airport
property. “On-Airport” rental car companies rent space at the Airport from MAC and
maintain service counters and fleets of rental vehicles on Airport property. All rental
car companies have the option to bid for the six available rental car concession
agreements on Airport property.

                                          -2-
that roadway and its related facilities. Prior to enacting Ordinance 79, MAC
researched commercial vehicles’ use of the Airport and calculated the fee to recover
the cost of those vehicles’ use of Airport resources. MAC’s cost analysis included
investigating the daily volume of commercial vehicles at the Airport, researching user
fees at similar airports, and conducting a series of informational meetings with members
of the commercial ground transportation industry.

      Ordinance 79 also served as a litmus test of MAC’s statutory authority to impose
Airport user fees. In Hyland v. Metropolitan Airports Comm’n, 538 N.W.2d 717
(Minn. Ct. App. 1995) (“Hyland I”), the court held that statutes creating and governing
MAC authorized it to charge fees to commercial vehicles picking up and dropping off
passengers at the Airport.

        In November 1996, growing Airport traffic and a $2 billion Airport expansion
project prompted MAC to explore ways to increase Airport revenue. MAC staff
proposed a new commercial vehicle ordinance as a means to that end. Believing that
all rental car companies had access to the same Airport market, MAC staff
recommended that off-Airport rental car companies be assessed a user fee that was (1)
comparable to the fees paid by such companies at other national airports, and (2)
established at a rate similar to that paid by on-Airport companies. MAC then
commissioned a study that addressed four factors: (1) fees charged to rental car
companies by other major airports in the nation; (2) rationales asserted by other airports
to justify such fees; (3) potential increase in revenue that MAC could anticipate from
a change in fee structure; and (4) recommendations for implementing a new fee
structure. Ultimately, MAC proposed a new fee structure whereby off-Airport rental
car companies would pay a user fee equal to 8.5 percent of their gross Airport-
generated revenues.2


      2
      The fee under Ordinance 85 only applies to off-Airport rental car companies.
The ordinance maintains a $1.75 per-transaction fee for other ground transportation

                                           -3-
       Prior to its enactment, MAC held public meetings and solicited public comment
concerning Ordinance 85. At a public hearing on November 13, 1997, Enterprise was
among the off-Airport rental car companies voicing the opinion that although off-
Airport companies should pay a “fair share,” they should not pay the same fee as the
on-Airport companies because off-Airport companies do not receive the same services
as those whose business is conducted on Airport property. Enterprise suggested that
a fee in the range of 6 to 6.5 percent was more appropriate than an 8.5 percent fee.
MAC defended the 8.5 percent figure on grounds that on-Airport companies pay in
excess of $1 million a year beyond the percentage of sales fees, which means that even
with Ordinance 85, off-Airport companies would not pay the same overall fees as
companies based on Airport property. MAC enacted Ordinance 85, effective May 1,
1998, with the 8.5 percent fee.

       Enterprise brought suit in the United States District Court for the District of
Minnesota, alleging that the fee imposed under Ordinance 85 violated the Minnesota
and United States Constitutions and exceeded MAC’s authority under state law.
Specifically, Enterprise claimed that the fee constituted an impermissible tax, and in the
alternative, it violated Minnesota Statute section 473.651.

      MAC moved for summary judgment on all of Enterprise’s claims and Enterprise
cross-moved for partial summary judgment on its statutory claim. The district court
granted MAC’s motion as to all of Enterprise’s constitutional claims. However, the




service providers.

                                           -4-
court granted Enterprise’s motion on its claim under section 473.651.3 See Enterprise
Leasing Co. v. Metropolitan Airports Comm’n, 92 F. Supp. 2d 936 (D. Minn. 2000).

                                           II.

       We review de novo questions of state law decided by the district court. See John
T. v. Marion Indep. Sch. Dist., 173 F.3d 684, 687 (8th Cir. 1999). The Minnesota
courts have not interpreted section 473.651 as it relates to the issue in this case. Where
the meaning of a state agency’s authorizing legislation is not explicit, the court gives
deference to the agency’s interpretation. See Minn. Stat. § 645.16(8) (1947); McAfee
v. Department of Revenue, 514 N.W.2d 301, 304 (Minn. Ct. App. 1994) (finding that
an agency’s interpretation of a statute is entitled to consideration and that such
consideration increases when the agency is construing a statute it administers and its
construction is longstanding). However, an agency’s interpretation “does not preclude
a different construction by the courts.” See Gust v. Minnesota Dept. of Natural Res.,
486 N.W.2d 7, 9 (Minn. Ct. App. 1992).

                                           III.

       The issue before us is whether the district court erred in finding that MAC
violated Minnesota Statute section 473.651 when it levied a fee equal to 8.5 percent
of off-Airport rental car companies’ gross revenues.




      3
       The court’s original Order enjoined MAC from enforcing the 8.5 percent fee
against off-Airport rental car companies. However, on MAC’s Motions to Alter or
Amend the Judgment and Stay Enforcement of the Judgment Pending Appeal, the court
issued a second Order which stayed enforcement of the first Order upon MAC’s
posting of a bond. See Enterprise v. Metropolitan Airports Comm’n, Civ. No. 98-1327
(D. Minn. May 30, 2000).

                                           -5-
       MAC has broad statutory authority and discretion to manage the Airport in the
public’s best interest. See Minn. Stat. Ann. § 473.608 (enumerating powers and
conferring upon MAC “all the powers as a body corporate necessary and convenient
to accomplish the objects and perform the duties prescribed” by statute); Hyland v.
Metropolitan Airport Comm’n, 884 F. Supp. 334, 336 (D. Minn. 1995) (“Hyland II”)
(“The Minnesota legislature has delegated to MAC broad statutory authority to
improve, maintain, operate, and manage airports in a manner which will, in MAC’s
opinion, further the interest of aeronautics in the state of Minnesota.”). Minnesota law
specifically grants MAC the authority to assess fees on Airport users, providing that:

       [MAC] shall have the authority to determine the charges for the use of
       any of the property under its management and control, and the terms and
       conditions under which such property may be used. Where there is
       reasonable basis for classification of users as to any use, [MAC] may
       classify users, but charges as to each class shall be reasonable and
       uniform for such use, and established with due regard to the value of the
       property and improvements used and the expense of operation to [MAC].


Minn. Stat. Ann. § 473.651 (2001) (emphasis added).

       The district court found that MAC failed to give due regard to the value of the
property and improvements used by off-Airport rental car companies and the expense
of operation to MAC. According to the district court, section 473.651 required MAC
to consider the specific Airport resources off-Airport companies actually use. Because
MAC considered the value of customer market generated by the entire Airport when
it created the new fee structure, the district court concluded that MAC exceeded its
statutory authority and granted summary judgment in favor of Enterprise.

      Two primary factors framed the district court’s analysis. First, the court opined
that Hyland strictly construed section 473.651, such that MAC may only impose on off-
Airport rental car companies user fees that reflect a direct link to the cost of the specific

                                            -6-
roadways and facilities those companies actually use to service their customers.
Second, the court was unpersuaded by case law that embraces the notion that rental car
companies benefit from, and therefore “use,” the market created by an entire airport
facility.

       We find the district court’s analysis to be overly narrow and its statutory
interpretation legal error. Our analysis leads to the conclusion that MAC was within
its broad discretionary authority under section 473.651 when it considered the entire
Airport facility in developing Ordinance 85. Accordingly, we reverse the district
court’s grant of summary judgment.

                                           A.

       One of our basic concerns is the district court’s understanding that the statutory
interpretation of section 473.651 is controlled by Hyland I. The district court
determined that “[i]n Hyland [I], the court appeared to adopt a more narrow
interpretation of the phrase ‘property and improvements used,’ including only the
specific commercial roadways and other facilities actually used by ground
transportation companies within its definition.” Enterprise, 92 F. Supp. 2d at 942. We
find this is a misreading of Hyland I and that the district court afforded it undue weight
in evaluating the instant case.

       In Hyland I, the Minnesota Court of Appeals found that section 473.651
authorized MAC to impose the Ordinance 79 per-transaction fee, which was designed
to recover costs “directly associated with the use of commercial ground transportation
roadways and facilities.” 538 N.W.2d at 720. According to the court, the cost
recovery purpose of Ordinance 79 and the fee to achieve it were squarely within
MAC’s purview and “patently reasonable” under section 473.651. See id.




                                           -7-
       Although Hyland I stands for the proposition that MAC may recover direct costs
under section 473.651, it goes too far to suggest that it circumscribes MAC’s discretion
to consider other factors when calculating user fees.4 We find nothing in the statutory
language or in Hyland I to support such a narrow interpretation. To the contrary, as we
have discussed, MAC’s authorizing legislation bestows upon it broad authority to
manage and fund the Airport. The decision in Hyland I was limited to MAC’s authority
to recover direct costs because Ordinance 79 was designed to recover direct costs.
However, Ordinance 79 differs significantly from the ordinance before us.

        The scope of Ordinance 85 is broader than its predecessor because it is aimed
toward a broader goal. Additional revenue is needed to fund the $2 billion Airport
expansion project, MSP 2010. MAC rationalized that the benefits flowing from the
Airport expansion would greatly increase the number of customers to which all rental
car companies have access. The goals of Ordinance 85 and MAC’s rationale in
calculating the fee structure fully complement MAC’s mandate to operate the Airport
in a self-sustaining manner and its broad discretion to charge fees to Airport users. See
49 U.S.C. § 47107(a)(13) (1997); Minn. Stat. Ann. §§ 473.608, subd. 1, 473.651.

       In fulfilling our duty to forecast how the Minnesota Supreme Court would likely
interpret section 473.651, we consider relevant state precedent. See McCallum v.
Rosen’s Diversified, Inc., 153 F.3d 701, 703 (8th Cir. 1998) (en banc). In doing so,
we are not obligated to defer to the district court’s interpretation of that precedent. See
id. Contrary to the district court, we find that Hyland I is distinguishable and that its
application of section 473.651 to Ordinance 79 is not controlling in this case.




      4
      Cf. Enterprise, 92 F. Supp. 2d at 942 (acknowledging that statute does not limit
MAC to assessing fees based solely on the cost of maintaining the Airport's commercial
roadways).

                                           -8-
                                            B.

       We also disagree with the district court’s rejection of the widely accepted idea
that airport users benefit from the existence of an entire airport facility.

       The basic issue of airport valuation is not novel. It has been addressed by other
courts, albeit under different legal principles and statutes that are similar, but not
identical, to section 473.651. The vast majority of authorities that have considered the
question embrace the notion that commercial entities in a very real sense use an entire
airport and the market it generates. Absent statutory language to the contrary, this
widely accepted principle guides our interpretation of section 473.651.

       The district court rejected as persuasive authority Evansville-Vanderburgh v.
Delta Airlines, Inc., 405 U.S. 707 (1972), and its progeny, which generally find under
a Commerce Clause analysis that airport user fees may be premised on the value of an
entire airport market. Specifically, the district court found these cases inapposite
because they are predicated on the “benefit conferred” language articulated in
Evansville-Vanderburgh.5 The court reasoned that a more restrictive interpretation was
warranted in the instant case because section 473.651 requires MAC to consider the


      5
          Evansville-Vanderburgh held that insofar as an airport user fee is

      based on some fair approximation of use or privilege for use . . . and is
      neither discriminatory against interstate commerce nor excessive in
      comparison with the governmental benefit conferred, it will pass
      constitutional muster, even though some other formula might reflect more
      exactly the relative use of the state facilities by individual users.

405 U.S. at 716-17.

                                            -9-
value of the property and improvements used, not the benefits conferred upon the user.



       The district court also distinguished authorities from other jurisdictions that have
embraced a statutory interpretation allowing airport authorities to consider the value of
an entire airport market when assessing airport user fees. The court reasoned that “the
relevant question is not whether courts in other jurisdictions have upheld gross receipts
fees similar to those assessed under Ordinance 85, but whether the more restrictive
language of section 473.651 permits such an assessment.” Enterprise, 92 F. Supp. 2d
at 941.

       Notwithstanding the district court’s steadfast reliance on the terminology set
forth in section 473.651, it also recognized that “the statute does not define with any
specificity the method or methods that MAC permissibly may apply in order to value
the property used,” and found that the legislature intended “to confer upon MAC the
discretion to apply any method of valuation that is reasonable.” Id. at 942. Moreover,
the district court acknowledged that the value of Airport property used for commercial
purposes is affected by “its proximity to the market of consumers that the Airport
generates.” Id.

       We find that the constitutional cases cited by MAC are not dispositive of the
issue at bar, but do inform our analysis. Those courts that have rejected Commerce
Clause challenges to various airport user fees generally hold that rental car companies
benefit from the very existence of an airport and the market it generates, not just those
parts of the airport the companies actually use.6 Although the Commerce Clause cases


      6
       See, e.g., Evansville-Vanderburgh, 405 U.S. at 716-17; Alamo Rent-A Car, Inc.
v. Sarasota-Manatee Airport Auth., 906 F.2d 516, 520 (11th Cir. 1990); Alamo Rent-
A-Car, Inc. v. City of Palm Springs, 955 F.2d 30, 31 (9th Cir. 1992); Westrac, Inc. v.
Walker Field Colo., Pub. Airport Auth., 812 P.2d 714, 718 (Colo. Ct. App. 1991).

                                           -10-
turn on a different legal principle, we cannot ignore the broader notion they embrace:
that commercial users of an airport benefit from the entire facility.

       It also is instructive to examine other states’ laws that empower local airport
authorities to levy fees on airport users. For instance, Louisiana law contains statutory
language identical to section 473.651 in that it authorizes the local airport authority to
charge off-airport rental car companies fees which are “reasonable and uniform for the
same class of privilege or service and . . . established with due regard to the property
and improvements used and the expense of operation to the authority.” La. Rev. Stat.
Ann. § 2:605(B) (1992). However, the Louisiana statute goes on to require that such
fees “be based upon the cost to the airport of the particular facilities or services used
by such nontenant, auto rental user.” Id. at § 2:605(D). By virtue of paragraph D,
Louisiana law specifically circumscribes the airport authority’s power to assess fees
based on the particular airport resources used by rental car companies located off
airport property. Minnesota law, by contrast, contains no similar limiting language.

       Other states that allocate broad statutory authority for local airport authorities to
charge user fees generally find that off-airport rental car companies benefit from the
existence of the entire airport and may be charged accordingly.7 The common


       7
        See, e.g., Hefflefinger, Inc. v. City of Portland, 739 A.2d 844, 847-88 (Me.
1999) (“[e]ven though the rental agencies assert that they impose a minimal burden on
the City when they drive through the airport picking up customers, the City may charge
them for the use of the airport and its roadways and for the maintenance of the entire
airport because the charges are authorized by the statute and the rental agencies benefit
from the entire airport.”); Alamo Rent-A-Car v. Board of Supervisors of Orange
County, 221 Cal. App. 3d 198, 208, 272 Cal. Rptr. 19, 25 (1990) (rejecting that airport
user fees be limited to actual use and finding that off-airport rental car companies
benefit “from all phases of the Airport operation.”); Jacksonville Port Auth. v. Alamo
Rent-A-Car, Inc., 600 So.2d 1159, 1164 (Fla. Dist. Ct. App. 1992) (embracing the idea
that an “off-airport rent-a-car company benefits from, and therefore in a very real sense
‘uses,’ the entire airport facility at which it operates.”) (emphasis in original).

                                           -11-
denominator in these cases is the idea that airport maintenance and construction is
undertaken for airline passengers, who in turn are customers for all rental car
companies.

      Consistent with the broad scope of the statutory language at issue and with those
authorities that have examined airport valuation in other contexts, we find that section
473.651 allowed MAC to consider the value of the entire Airport in developing the
Ordinance 85 fee.

                                           C.

       In making the assessment that Ordinance 85 is authorized by section 473.651,
we also find that MAC gave “due regard” to the value of property and improvements
used by off-Airport rental car companies. The statute does not define the term due
regard except to the extent that it specifies to what MAC must give such regard: the
value of the property and improvements used and the expense of operation. See Minn.
Stat. Ann. § 473.651. When a term is undefined, Minnesota law directs that we
construe the term “according to [its] common and approved usage.” Minn. Stat.
§ 645.08(1) (1947). Black’s defines due regard as “[c]onsideration in a degree
appropriate to demands of the particular case.” Black’s Law Dictionary 501 (6th ed.
1990). This definition tells us that some measure of discretion is inherent in the phrase
due regard. See Commonwealth of Virginia v. Marshall, 599 F.2d 588, 594 (4th Cir.
1979) (agreeing that “‘due regard’ does not mean ‘deference’”). Such discretion is also
apparent from the context of the enabling legislation in which section 473.651 occurs.
See Bailey v. United States, 516 U.S. 137, 145 (1995) (considering the context in
which statutory language occurs as a factor in ascertaining the meaning of its terms).
To effectuate section 473.651, the legislature granted MAC “all the powers as a body
corporate necessary and convenient to accomplish” user fees. Minn. Stat. Ann.
§ 473.608, subd. 1. MAC’s general authority under section 473.608, juxtaposed with


                                          -12-
its specific authority under 473.651, empowers MAC with broad discretion to calculate
and impose fees on Airport users.8

       Despite MAC’s broad discretion, the terms of the statute do not give MAC a
carte blanche to levy fees that are unreasonable. Even if the entire Airport is the
benchmark for assessing value, we assume a reasoned approach includes some inquiry
into the specific value off-Airport rental car companies derive from the Airport market.
In other words, if the term “Airport market” is substituted for “property and
improvements used,” it may still be a lesser market and therefore of lesser value to
companies not located on the Airport’s premises.

       The record supports that MAC conducted an extensive investigation into the
value of the property and improvements used by off-Airport rental car companies.
MAC adopted Ordinance 85 after an open and public legislative process during which
the views of all parties potentially affected by the fee structure were solicited. MAC
identified the goals that the fee structure was designed to achieve, including specific
revenue goals and alternative means to achieve them. Enterprise, along with other off-
and on-Airport rental car companies, was given the opportunity at public hearings to
provide input into the Ordinance 85 fee structure. Testimony from those hearings
shows that Enterprise did not object to the concept of the new fee. It simply argued in
favor of a fee that was two percent less than what MAC had proposed. MAC was
required to listen to Enterprise’s arguments, see Minn. Stat. Ann. § 473.608, subd.
17(4), but it was not required to adopt them.




      8
       As one commentator has observed, these legislative powers, both expressed and
implied, “give the Commission almost unlimited authority and power to regulate
aviation operations in the Twin Cities metropolitan area.” Donald V. Harper, The
Minneapolis-St. Paul Metropolitan Airports Commission, 55 Minn. L. Rev. 363, 375
(1971).

                                         -13-
        MAC also commissioned a study that reported on the fee structures at other
major airports in the United States, the potential increase in revenues that MAC could
anticipate from a change in fees charged to off-Airport rental car companies, and
recommendations for implementing a new fee structure at the Airport. The study
identified several factors that contribute to differences between fees charged to on- and
off-airport rental car companies at other airports.9 Commissioning this study and using
its results in the legislative process was well within MAC’s authority to engage in any
activities necessary and convenient to accomplish its legal obligation to maintain and
develop the Airport. See id. at subd. 1. There is no evidence that the results of this
study served as the sole basis for the new fee structure. The study did, however,
provide MAC with valuable comparison data in determining the reasonableness of an
8.5 percent fee.10 MAC’s use of this information is akin to a real estate appraiser
computing the value of a home, in part, by assessing the value of other homes in the
neighborhood.

      Finally, MAC considered the $2 billion expansion project under way at the
Airport and identified those capital expenditures which would be funded by Ordinance




      9
         Those factors include: (1) inability of certain small agencies to meet annual
guarantee bidding requirements for on-airport privileges; (2) high expense of operating
off-airport; (3) lack of walk-up customers; (4) airport configuration; (5) legal
restrictions; and (6) local community interest. As a result, some airport authorities
charge off-airport companies up to six percent less than they charge to on-airport
companies. Other authorities charge the same user fee, regardless of whether the
company is located on or off airport premises.
      10
        It is worth noting that the 8.5 percent fee under Ordinance 85 is well within the
range of other airport user fees across the country. Fees as high as ten percent of gross
revenues have been deemed reasonable. See, e.g., Alamo Rent-A-Car, Inc. v.
Sarasota-Manatee Airport Auth., 906 F.2d at 520.

                                          -14-
85.11 As we have discussed, this expansion project is intended to attract and
accommodate growing passenger volume at the Airport. More Airport passengers
translates into a larger customer market for all rental car companies that service the
Airport.

       The structure of the Ordinance 85 fee inherently accounts for the difference in
value that the Airport affords to on- and off-Airport rental car companies in that it is
based on Airport-generated gross revenues. In other words, the fee paid by off-Airport
companies is commensurate with the volume of business that the entire Airport
generates for the particular rental car company subject to Ordinance 85. Accordingly,
we are satisfied that the fee reflects MAC’s due regard to the value of the Airport
market that off-Airport rental car companies use.

                                          IV.

        Given the broad discretion the legislature granted to MAC in assessing fees and
the legislative process MAC undertook in crafting Ordinance 85, we find that MAC
fulfilled its statutory duty to give due regard to the value of the property and
improvements used by off-Airport companies.

       In concluding that the district court erred, we emphasize that substantial
deference is afforded to a state agency’s interpretation of a statute the agency
administers. The cases are legion that MAC’s interpretation of the statute cannot be
set aside unless it is arbitrary, capricious, an abuse of discretion, or otherwise not
supported by law. See, e.g., Friends of the Boundary Waters Wilderness v. Dombeck,


      11
        In particular, MAC considered the $25 million to reconstruct the
inbound/outbound roadway; $25 million to construct an automated “people mover” to
transport auto rental customers; $63 million to construct a new Humphrey Terminal;
and $400 million to build a new North/South Runway.

                                         -15-
164 F.3d 1115, 1121 (8th Cir. 1999). Because we find that Minnesota law authorized
the Ordinance 85 fee, we decline to substitute our policy judgments for those which are
within MAC’s exclusive province. See United States v. Kabat, 797 F.2d 580, 591-92
(8th Cir. 1986).

     We therefore reverse the grant of summary judgment by the district court and
remand for an entry of judgment in accordance with this opinion.12

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      12
       In view of this court’s findings that the fee was reasonable and authorized,
under Minnesota law we need not consider whether the fee constitutes an unauthorized
tax.

                                         -16-
