                                                                                    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



                                             5
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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