Gateway Village, LLC v. Montana Department of Environmental Quality ( 2015 )

September 29 2015
DA 15-0085
Case Number: DA 15-0085
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 285
GATEWAY VILLAGE, LLC,
Plaintiff, Appellee
and Cross-Appellant,
v.
MONTANA DEPARTMENT OF ENVIRONMENTAL
QUALITY, GALLATIN GATEWAY COUNTY
WATER & SEWER DISTRICT,
Defendants, Appellants
and Cross-Appellees.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-13-657C
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant Montana Department of Environmental Quality:
Kirsten H. Bowers, Kurt R. Moser, Special Assistant Attorneys General,
Helena, Montana
For Appellant Gallatin Gateway County Water and Sewer District:
R. Allan Payne, Marc G. Buyske, Doney Crowley, P.C., Helena, Montana
For Appellee:
Brian K. Gallik, Gallik & Bremer, P.C., Bozeman, Montana
Matthew W. Williams, Williams & Jent, LLP, Bozeman, Montana
Submitted on Briefs: September 23, 2015
Decided: September 29, 2015
Filed:
__________________________________________
Clerk
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Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 This action arises out of a final administrative decision by the Montana
Department of Environmental Quality (DEQ) to grant a wastewater discharge permit to
the Gallatin Gateway County Water & Sewer District. Gateway Village, LLC—which
owns real property adjacent to and down-gradient from the proposed activities—filed a
petition for judicial review and a complaint for declaratory and injunctive relief. The
Eighteenth Judicial District Court, Gallatin County, remanded the case to DEQ for
additional analysis including preparation of an Environmental Impact Statement (EIS).
In addition, the court denied the District’s and DEQ’s motions for summary judgment or
dismissal of Gateway Village’s trespass claim, declined to entertain the District’s claim
that it holds a prescriptive easement under Gateway Village’s land, and denied Gateway
Village’s request for attorneys’ fees. DEQ and the District appeal, and Gateway Village
cross appeals. We affirm in part, vacate in part, and remand for further proceedings.
¶2 The issues on appeal are whether the District Court erred in its ruling on Gateway
Village’s trespass claim and in declining to entertain the District’s claim that it holds a
prescriptive easement under Gateway Village’s land. On cross-appeal, Gateway Village
argues the court erred in denying its claim for attorneys’ fees. The parties have not
appealed the District Court’s decision requiring an EIS.
BACKGROUND
¶3 Because of the District Court’s unchallenged remand of this matter to DEQ for
preparation of an EIS, a detailed recitation of the facts is unnecessary. Very basically,
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this case concerns a proposed wastewater treatment system in which the District would
discharge up to 50,000 gallons of treated domestic wastewater each day into an
underground mixing zone that underlies land owned by Gateway Village.
¶4 DEQ prepared an Environmental Assessment and, after review and consideration
of public comments, approved the District’s proposed wastewater system and issued a
permit. Gateway Village then filed this action in the District Court. In addition to
requesting judicial review of DEQ’s issuance of the permit, Gateway Village
affirmatively alleged that the discharge of waste water into groundwater extending under
its surface property would constitute a common law trespass. DEQ and the District each
moved for partial summary judgment on and dismissal of the trespass claim, which
motions were fully briefed and considered at a hearing before the District Court.
¶5 The District Court issued an extensive opinion in which it granted the petition for
judicial review and, as indicated above, determined that further environmental analysis is
necessary. In addition, the court denied DEQ’s and the District’s motions for summary
judgment or dismissal of Gateway Village’s trespass claim, and denied Gateway
Village’s claim for attorneys’ fees.
DISCUSSION
¶6 Whether the District Court erred in its ruling on Gateway Village’s trespass claim
and in declining to entertain the District’s claim that it holds a prescriptive
easement under Gateway Village’s land.
¶7 Based upon the administrative record in this case, the District Court ruled that the
use of Gateway Village’s property as the mixing zone for the District’s wastewater
system would constitute a trespass invading Gateway Village’s rights. Further, the court
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declined to entertain the District’s previously-unasserted claim that it enjoys a
prescriptive easement under Gateway Village’s property based on prior approval of an
existing minor subdivision. DEQ and the District argue both of those rulings were error.
¶8 In light of the District Court’s unchallenged ruling remanding this case to DEQ for
preparation of an EIS, we will not consider either of these issues at this time. Preparation
of an EIS will result in substantial changes and additions to the administrative record in
this case. See generally § 75-1-201, MCA. At this point, it is speculative whether the
District will be entitled to a discharge permit or, if so, what terms or conditions might be
contained in such a permit. Further, because the outcome of the EIS is unknowable at
present, the prospect that a claim of trespass or prescriptive easement will eventually be
reasserted is also speculative. Therefore, any determination of either the trespass or the
prescriptive easement question would be premature and advisory. It has long been the
policy of this Court that we do not issue advisory opinions. Not in Montana: Citizens
Against CI-97 v. State, 2006 MT 278, ¶ 7, 334 Mont. 265, 147 P.3d 174. We decline to
do so in this case.
¶9 In May of this year, we denied Gateway Village’s motion to dismiss DEQ’s and
the District’s appeal. In our order denying the motion to dismiss, we stated “the decision
that a trespass will occur with any discharge of waste water into groundwater presents a
justiciable controversy which is divisible from the rest of the District Court’s order.”
After further review of the record and the full briefing of the parties, we have reached a
different conclusion. We further conclude that, having remanded this case for
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preparation of an EIS, the District Court should have declined to address the trespass
claim as well.
¶10 For the reasons stated above, we vacate the portion of the District Court’s order
addressing the trespass claim.
¶11 Whether the District Court erred in denying Gateway Village’s claim for
attorneys’ fees.
¶12 Gateway Village sought to recover its fees and costs incurred in the District Court
action under the private attorney general doctrine. That doctrine applies when “the
government, for some reason, fails to properly enforce interests which are significant to
its citizens.” In re Dearborn Drainage Area, 240 Mont. 39, 43, 782 P.2d 898, 900 (1989).
Courts evaluate three factors when considering a request for attorneys’ fees under the
private attorney general doctrine: (1) the strength or societal importance of the public
policy vindicated by the litigation; (2) the necessity for private enforcement and the
magnitude of the resultant burden on the plaintiff; and (3) the number of people standing
to benefit from the decision. Montanans for the Responsible Use of the School Trust v.
State ex rel. Bd. of Land Comm’rs, 1999 MT 263, ¶¶ 66-67, 296 Mont. 402, 989 P.2d
800.
¶13 In this case, the District Court acknowledged the constitutional importance of
protecting Montana’s environment and water quality. The court declined, however, to
award Gateway Village its fees and costs. It reasoned that the private attorney general
doctrine has been invoked only sparingly and that, in this case, only landowners in the
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Gateway area would stand to benefit from Gateway Village’s efforts and that DEQ
neither mounted a frivolous defense nor acted in bad faith in this matter.
¶14 Gateway Village asserts the District Court used a “counting of noses” approach
which is not a sufficient touchstone for denying recovery of fees. It asks this Court to
reverse the District Court’s denial of attorneys’ fees and to remand for a hearing on an
award of reasonable fees and costs.
¶15 An appellate court reviews a district court’s ruling granting or denying attorneys’
fees under the private attorney general doctrine for abuse of discretion. Western
Tradition P’ship v. Att’y Gen., 2012 MT 271, ¶ 7, 367 Mont. 112, 291 P.3d 545. “In
determining whether the trial court abused its discretion, the question is not whether the
reviewing court agrees with the trial court, but, rather, did the trial court in the exercise of
its discretion act arbitrarily without the employment of conscientious judgment or exceed
the bounds of reason, in view of all the circumstances, ignoring recognized principles
resulting in substantial injustice.” Montanans for the Responsible Use of the School
Trust, ¶ 68.
¶16 We agree with the District Court that down-gradient land owners are a relatively
narrow class of persons. For that reason, and for the other reasons cited by the District
Court, we conclude the court did not abuse its discretion in denying Gateway Village’s
request for attorneys’ fees.
¶17 The pending motion to strike a portion of the reply brief is denied as moot.
¶18 Affirmed in part, vacated in part, and remanded.
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/S/ MIKE McGRATH
We Concur:
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
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