                                         No. 03-587

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2004 MT 230


ADVOCATES FOR EDUCATION, INC.,

              Plaintiff and Appellant,

         v.

MONTANA DEPARTMENT OF NATURAL RESOURCES
AND CONSERVATION, MONTANA BOARD OF LAND
COMMISSIONERS AND THE STATE OF MONTANA,

              Defendants and Respondents.



APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and for the County of Flathead, Cause No. DV 2002-334(B)
                     The Honorable Katherine R. Curtis, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Richard C. Hegger, Attorney at Law, Somers, Montana

              For Respondents:

                     Honorable Mike McGrath, Montana Attorney General, Candace F. West,
                     Assistant Attorney General, Tommy H. Butler, Mark C. Phares, Special
                     Assistant Attorneys General, Helena, Montana



                                                 Submitted on Briefs: December 23, 2003

                                                            Decided: August 24, 2004


Filed:


                     __________________________________________
                                       Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1     In June of 2002, Advocates for Education (AFE) brought suit, in the Eleventh

Judicial District Court, Flathead County, seeking a judicial declaration. The defendants

moved to dismiss and the District Court granted the motion. AFE appeals and we affirm.

¶2     We restate the issue on appeal as follows: Whether the District Court correctly

dismissed AFE’s complaint.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     In 1997, litigation between Montanans for the Responsible use of the School Trust

(Montrust) and the State of Montana ex rel the Board of Land Commissioners (the Board)

and the Department of Natural Resources (DNRC) initiated over several issues, including

whether § 20-6-621(4), MCA, was constitutional. Section 20-6-621(4), MCA (1997),

allowed the Board to “sell, at the appraised value, or lease for any period of time less than

99 years, at an amount of $1 per year, to a [school] district any tract of state land . . . .”

¶4     “[A]ny tract of state land” included school trust lands which Congress had granted to

Montana in 1889 under the Federal Omnibus Enabling Act (the Act) for the support of public

schools. Montana adopted the terms of the Act in the 1889 Montana Constitution and the

provisions were carried over to the 1972 Montana Constitution. Under Montana’s

constitutional and statutory law, the Board has the authority to manage and administer the

school trust lands and DNRC, under the Board’s direction, is charged with “the selecting,

exchange, classification, appraisal, leasing, management, sale, or other disposition of the

state lands.” Art. X, Sec. 4, Mont. Const.; §§ 77-1-202 and 301, MCA.


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¶5     The Special Assistant Attorney General, and attorney for the DNRC, signed a

stipulation with Montrust which stated that if the Board allowed school districts to lease

school trust land at less than full market value under § 20-6-621(4), MCA, “that act would

be violative of the trust principles mandated by the constitution or enabling act.” In April

1998, the First Judicial District Court issued an order stating that § 20-6-621(4), MCA, was

unconstitutional in part because leasing school trust lands to some school districts would

favor only some of the beneficiaries, not the trust as a whole. Section 72-34-604, MCA.1

¶6     In June of 2002, AFE brought a complaint against the DNRC, the Board, and the

State, requesting that the District Court issue a declaratory judgment that DNRC unlawfully

determined that § 20-6-621(4), MCA, was unconstitutional; that DNRC unlawfully stipulated

to the unconstitutionality of § 20-6-621(4), MCA, which was duly enacted by the legislature;

and that DNRC has failed to defend the constitutionality of § 20-6-621(4), MCA. AFE also

wanted the District Court to declare that “the use of school trust lands for the site of public

school buildings . . . is not a disposal of land or an interest in land that requires the payment

of full market value, and that the Act, Constitution and other statutes permit the use of school

trust lands for the construction of public schools at nominal compensation to the trust.”

¶7     The State moved to dismiss the complaint on the basis that no justiciable controversy

existed and the complaint alleged no cause of action upon which relief could be granted.

The District Court agreed and dismissed the complaint concluding that AFE was not


       1
        At the time the District Court wrote the order, the statute was numbered § 72-
34-104, MCA. It has since been redesignated § 72-34-604.

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“entitled to relief under any set of facts which could be proved in support of its claim . . . .”

AFE appeals.

                                 STANDARD OF REVIEW

¶8     The issue of whether the court properly granted a Rule 12(b)(6), M.R.Civ.P. motion

to dismiss, presents a question of law. This Court reviews questions of law to determine

whether the district court’s application or interpretation of the law is correct. Missoula

YWCA v. Allan Bard, 1999 MT 177, ¶ 3, 295 Mont 260, ¶ 3, 983 P.2d 933, ¶ 3. In reviewing

a district court’s dismissal for failure to state a claim upon which relief can be granted, we

will construe the complaint in the light most favorable to the plaintiff, and all factual

allegations are taken as true. Missoula YWCA, ¶ 3. This Court will affirm the dismissal

only if we find that the plaintiff is not entitled to relief under any set of facts which could be

proven in support of the claim. Missoula YWCA, ¶ 3.

                                        DISCUSSION

¶9     Whether the District Court correctly dismissed AFE’s complaint.

¶10    First, AFE argues that we need to declare that DNRC was wrong when it stipulated

that § 20-6-621(4), MCA, violated the Act and the Montana Constitution. AFE maintains

that “this relief will allow for the use of trust lands for public school building sites pursuant

to general laws enacted to give effect to such disposition.” We disagree and determine that

the District Court’s rationale and order is correct.

¶11    The District Court concluded that any determination that DNRC had “‘exceeded its

authority and failed in its duty to uphold the legality’ . . .” of Montana laws when it

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stipulated that the statue was unconstitutional, “would have absolutely no bearing on existing

rights or interests at issue between the parties in this case, and a judgment from this Court

granting the relief sought would not effectively operate to resolve any controversy in this

case.”

¶12      In determining whether there is a justiciable controversy, we apply a three part test.

Montana-Dak. Util. Co. v. City of Billings, 2003 MT 332, ¶ 9, 318 Mont. 862, ¶ 9, 80 P.3d

1247, ¶ 9 (citing Powder River County v. State, 2002 MT 259, ¶ 101, 312 Mont. 198, ¶ 101,

60 P.3d 357, ¶ 101; Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶¶ 17-19, 293

Mont. 188, ¶¶ 17-19, 974 P.2d 1150, ¶¶ 17-19; Northfield Ins. v. Ass’n of Counties, 2000

MT 256, ¶ 12, 301 Mont. 472, ¶ 12, 10 P.3d 813, ¶ 12 ). First, the parties must have existing

and genuine rights or interests as distinguished from theoretical rights or interests. Montana-

Dak., ¶ 9. Second, “the controversy must be one upon which the judgment of the court may

effectively operate, as distinguished from a debate or argument invoking a purely political,

administrative, philosophical or academic conclusion.” Montana-Dak., ¶ 9.

Third,

         there must be a controversy the judicial determination of which will have the
         effect of a final judgment in law or decree in equity upon the rights, status or
         legal relationships of one or more of the real parties in interest, or lacking
         these qualities be of such overriding public moment as to constitute the legal
         equivalent of all of them.

Montana-Dak., ¶ 9.

¶13      As the District Court pointed out, any “declaratory judgment would be abstract and

theoretical because the claim applies to no specific statute at issue or specific rights of the

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litigants in this case.” The only law AFE cites is § 20-6-621(4), MCA, and the Legislature

has repealed this statute. Declaring that DNRC was wrong in not supporting the statute will

not grant AFE the true relief it seeks--namely, the ability to lease school trust land in

Kalispell for a dollar.

¶14    We agree with the District Court and hold that there is no justiciable case or

controversy.

¶15    Second, AFE wants us to declare that using school trust lands for public school

buildings is not a disposal of land or interest in land under the Act that requires the payment

of full market value. Because we hold that there is no justiciable case or controversy, we

need not address this argument.

¶16    Accordingly, the District Court correctly granted the motion to dismiss.

¶17    Affirmed.



                                                          /S/ JAMES C. NELSON




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We Concur:

/S/ JIM REGNIER
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JIM RICE




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