Flathead Lakers v. DNRC ( 2022 )

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ORIGINAL 03/15/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0535
DA 21-0535
FLATHEAD LAKERS INC., a Montana non-profit
public benefit corporation, AMY J. WALLER,
STEVEN F. MOORE, CYNTHIA S. EDSTROM,
ADELE ZIMMERMAN, MARTIN FULSAAS and
FILEC
GAIL A. WATSON-FULSAAS, LAUREL MAR 1 5 2022
FULLERTON, ALAN and DEIRDRE COIT, and Bowen Cireenw000
FRANK M. WOODS, Clerk of Suprerne Couri
State of tvlontana
Petitioners, Appellees and Cross-Appellants,
v.
ORDER
MONTANA DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION,
Respondents,
MONTANA ARTESIAN WATER COMPANY,
Respondent and Appellant, and
WATER FOR FLATHEAD'S FUTURE,
Intervenor.
By petition filed February 22, 2022, Appellees Flathead Lakers, Inc., et al. (Flathead
Lakers) petition this Court for rehearing on our prior order, filed in this matter on
January 25, 2022, denying its motion for dismissal of the appeal of Appellant Montana
Artesian Water Company (MAWC), filed on October 29, 2021, from an adverse District
Court judgment, filed September 30, 2021, vacating for remand the final agency decision
of the Montana Department of Natural Resources and Conservation granting a disputed
beneficial water use permit (Permit No. 76LJ-30102978) to MAWC for use in Flathead
County. Flathead Lakers asserted that the appeal was premature because the District Court
had yet to rule on their related motion for attorney fees, timely filed on October 12, 2021,
twelve days after entry of judgment on the merits and after Flathead Lakers' October 1,
2021 filing and service of notice of entry of judgment. Construing M. R. Civ. P. 58(e)
(lower court judgment not final for purposes of appeal "until any necessary determination"
regarding attorney fees, cost, or sanctions is made—untimely notice of appeal does not
deprive lower court of jurisdiction to dispose of such matters on "timely motion") in
conjunction with Ballou v. Walker, 2017 MT 197, ¶ 22, 388 Mont. 283, 400 P.3d 234 (post-
judgment motion for attorney fees is in essence a M. R. Civ. P. 59 motion to alter or amend
judgment subject to mandatory 60-day Rule 59(f) jurisdiction deadline), we denied
Flathead Lakers' motion to dismiss on the stated ground that the appeal was not premature
because the subject District Court judgment did not reserve jurisdiction to address a related
attorney fees issue and the 60-day Rule 59(f) deadline had expired without ruling on the
attorney fees motion that triggered it.
Citing Bitterroot River Protective Ass 'n v. Bitterroot Conservation Dist (BRPA),
2011 MT 51, In 6-17, 359 Mont. 393, 251 P.3d 131 (express reservation in judgment on
the merits of jurisdiction in re related pre-judgment motion for attorney fees rendered
judgment not final for purposes of appeal, thus rendering Rule 59 and constituent Rule
59(1) deemed-denied deadline inapplicable), Flathead Lakers now assert that rehearing and
reversal of our order of denial is warranted under M. R. App. P. 20 because this Court
"overlooked or wasynaware" that, based on their ancillary motion later filed on October
12, 2021, an October 29, 2021 District Court order "bifurcated" the attorney fees issue
raised in their post-judgment motion.1 Flathead Lakers thus assert that this "newly brought
forward" fact renders our prior order of denial erroneously inconsistent with our pertinent
holding in BRPA. However, upon review of our prior order, MAWC's response to the
rehearing petition, and all pertinent authorities, we disagree.
As a threshold matter, contrary to their deliberate after-the-fact equivocation here,
this Court did not "overlook" the "newly brought forward" fact of the District Court's
The District Court later accordingly awarded attorney fees to Flathead Lakers by judgment filed
February 14, 2022.
October 29th bifurcation order. For whatever reason, Flathead Lakers simply neglected to
reference that only now-purported material fact in their prior motion to dismiss. As an
additional threshold matter, Flathead Lakers' February 22nd petition for rehearing on our
January 25th order of denial was manifestly untimely in violation of M. R. App. P. 20(2)(a)
(15-day deadline for rehearing petitions). Moreover, BRPA is in any event distinguishable
because, unlike the express reservation of jurisdiction regarding the pre-judgment attorney
fees motion included in the subject judgment on the merits that thus precluded application
of Rule 59 there, Flathead Lakers' post-judgment motions for attorney fees and bifurcation
did not similarly preclude application of Rule 59 here, and the District Court's after-the-
fact October 29th post-judgment bifurcation order was neither a similar contemporaneous
reservation of jurisdiction in its underlying judgment on the merits, nor could it
retroactively effect such reservation.
IT IS THEREFORE ORDERED that Flathead Lakers' February 22, 2022 petition
for rehearing on our January 25, 2022 order denying their motion to dismiss MAWC's
appeal as premature is hereby DENIED.
The Clerk of this Court is hereby directed to serve notice of this Order on all counsel
of record.
DATED this 16— day of March, 2022.
Chief Justice
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Justices