No, 84-559 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

MISSOULA COUPJTY, 

Plaintiff and Appellant, 

-vsAMERICAN ASPHALT, INC . , 

Defendant and Respondent, 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

For Respondent: 

Snavely & Phillips, Missoula, Montana 

Worden, Thane & Haines; Ronald Bender, Missoula, 

Montana 

Filed: 

Submitted on Briefs: March 14, 1985 

Decided: June 25, 1985 

- 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Missoula County appeals from a judgment of the Fourth 

Judicial District, Missoula County, holding that sections 

76-1-113 and 76-2-209, MCA exempted American Asphalt's mining 

operations from county zoning and planning. We affirm. 

The Department of State Lands issued a permit to 

American Asphalt under the Montana Open Cut Mining Act, 

section 82-4-401, et seq., MCA, on September 1, 1982 and 

American Asphalt began excavating gravel. This Department 

required American Asphalt to create a visual and sound 

barrier of topsoil; to plant trees to reduce visual and sound 

impact; to use dust suppressant on the road to the pit; to 

fence the area to protect children; and to drive trucks 

entering or leaving the mine only on a specific route in 

order to avoid driving by an elementary school. 

The Missoula Planning Office, in response to a 

citizen's complaint, asked them to cease excavation within 

the Clark Fork River Floodplain area until they obtained a 

floodplain permit. When American Asphalt continued to 

excavate gravel without a permit, Missoula County sought a 

preliminary injunction to halt the operation. On September 

14, 1982, the District Court denied the request for an 

injunction but ordered American Asphalt to apply for a 

floodplain permit. 

American Asphalt applied for and received a permit on 

November 9, 1982 from the Board of County Commissioners. The 

floodplain permit was limited to gravel extraction unless the 

court decided other proposed activities were allowable under 
the applicable zoning and comprehensive planning for the 

area. 

The subject property was zoned for single family 

residential uses with a limit of one dwelling per acre prior 

to the grave1 extraction by American Asphalt. The uses 

designated in the Missoula Urban Area Comprehensive Plan are 

rural low density residential, parks and open space. Gravel 

extraction, gravel processing, and asphalt and concrete 

production are not permitted uses in this zone. The County 

regulations currently allow gravel extraction only in certain 

areas with a special exception permit. Processing, of 

gravel, such as washing, screening, crushing and mixing with 

asphalt oil or cement is allowed only in industrial zones. 

American Asphalt is currently extracting, washing, 

crushing, and sorting gravel with special equipment on the 

site. They intend to locate an asphalt batch plant in which 

asphalt oil is added to the sorted gravel and a concrete 

batch plant in which cement is added to the sorted gravel on 

the site as well. According to testimony presented by 

American Asphalt at trial, the asphalt and concrete batching 

are part of the recovery process. The District Court found 

that these activities are contained within the terms 

"mining", "use" and "recovery" as commonly used in the 

industry. 

Missoula County, in an amended complaint filed October 

12, 1982, sought a declaratory judgment on the issue stated 

above. The case was heard by the District Court, sitting 

without a jury, on June 28 and 29, 1984. On July 31, 1984, 

the District Court issued findings of fact and conclusions of 

law and judgment in favor of American Asphalt. Missoula 

County appeals from that part of the judgment holding that 
sections 76-1-113 and 76-2-209, MCA exempt all mining 

operations from the zoning and comprehensive planning of 

Missoula County. 

The issues presented for review are: 

(1) Did the District Court properly interpret sections 

76-1-113 and 76-2-209, MCA to exempt American Asphalt's 

grave1 operations from Missoula County zoning and planning 

regulations? 

(2) Did the District Court correctly find that the 

activities of American Asphalt were within the "complete use, 

development and recovery of a mineral resource" pursuant to 

section 76-2-209, MCA? 

Section 76-2-209, MCA, part of the zoning enabling 

legislation, provides: "No resolution or rule adopted 

pursuant to the provisions of this part . . . shall prevent 

the complete use, development, or recovery of any mineral, 

forest, or agricultural resources by the owner thereof." The 

chapter on planning contains a nearly identical provision, 

section 76-1-113, MCA which states: "Nothing in this chapter 

shall be deemed to authorize an ordinance, resolution, or 

rule which would prevent the complete use, development, or 

recovery of any mineral, forest, or agricultural resources by 

the owner thereof." 

Missoula County contends that these statutes do not 

prohibit the regulation of the location and manner of 

performance of gravel extraction and processing activities; 

the legislature did not intend to prohibit counties from 

exercising any form of planning and zoning over mineral 

resources ; and the phrase "complete use, development, or 

recovery'' does not include the range of activities proposed 

by American Asphalt. American Asphalt contends that the 
statutes prohibit any rule or regulation under zoning and 

planning law which would interfere with a property owner's 

complete use, development and recovery of a mineral resource 

and Missoula County's interpretation would render the 

statutes a nullity. 

The fundamental rule of statutory construction is that 

the intention of the legislature controls. Section 1-2-102, 

MCA; Montana Department of Revenue v. American Smelting and 

Refining Co. (1977), 173 Mont. 316, 324, 567 P.2d 901, 906, 

appeal dismissed 434 U.S. 985, 98 S.Ct. 884, 54 L.Ed.2d 793, 

and Haker v. Southwestern Railway Co. (1978), 178 Mont. 364, 

578 P.2d 724. The intention of the legislature must first be 

determined from the plain meaning of the words used. Haker, 

578 P.2d at 727; State ex rel. Sol v. Bakker (Mont. 1982), 

649 P.2d 456, 39 St.Rep. 1471; and Tongue River Electric 

Co-op, Inc. v. Montana Power Co. (1981), 636 P.2d 862, 864, 

38 St.Rep. 2032. If the intent of the statute cannot be 

determined from the plain meaning, the court then may resort 

to other rules of statutory construction. State --- ex rel. Sol, 

649 P.2d at 459. The District Court concluded that the 

statutes in question were not of doubtful meaning and that 

the statutes ex~mpted all mining operations from Missoula 

County's zoning and planning authority. However, neither 

statute expressly prohibits regulation of mineral processing 

or extraction. The statutes only say that no regulation 

shall prevent the complete use, development or recovery of 

certain natural resources. 

An illustration of plain language expressly prohibiting 

regulation of particular land uses is found in section 

76-2-109, MCA. That section states: "No planning district or 

recommendations adopted under this part shall regulate lands 
used for grazing, horticulture, agriculture, or the growing 

of timber. " Section 76-1-113 and 76-2-209, MCA, by 

comparison, do not prohibit regulation of the named resources 

by their plain language, they merely say any regulations 

imposed by the county cannot result in preventing the 

complete use, development or recovery of the named resources. 

Part of the legislative purpose of these statutes is 

clear and unambiguous. They demonstrate the legislature's 

awareness that a range of activities must occur on site in 

order for the owner of mineral, timber, or agricultural 

resources to benefit and that the legislature did not intend 

for counties to have the power to prevent the owner from 

having that benefit. However, what the range of activities 

are that cannot be prevented, is by no means clear and 

unambiguous. 

There is ambiguity in the interpretation and construction of the phrase "complete use, development, or 

recovery of any mineral . . . resource" and its application 

to gravel extraction and processing. In order to interpret 

this phrase within the plain meaning rule "the language used 

must be reasonably and logically interpreted, giving words 

their usual and ordinary meaning." In re Matter of McCabe 

(1975), 168 Mont. 334, 339, 544 P.2d 825, 828. If the 

statutes plainly expressed legislative intent without straining interpretation, no extension beyond that plain popular 

meaning would be required. Adams v. Morton (C.A.Mont. 1978), 

581 F.2d 1314, 1320, cert. denied. Gros Ventre Tribe of Fort 

Belknap Indian Reservation v. U.S. (1979), 440 U.S. 958, 99 

S.Ct. 1498, 59 L.Ed.2d 771. If we resort to technical 

meanings or other related statutes in order to ascertain 

legislative intent, then we are no longer within the plain 
meaning rule. The District Court here relied on the 

technical meanings of the words within the gravel industry in 

order to interpret and apply the statutes. 

A reasonable construction of these broad statutes 

depends, to an extent, on the circumstances in which they are 

applied. Therefore, we must look to industry practices to 

discern the extent to which the legislature authorized the 

regulation of "use, development or recovery." Considering the 

legislative intent to not prevent the owner of the resource 

from benefiting, a county must at least allow the activities 

necessary to develop the resource to a point at which it can 

be effectively utilized. In the case at bar, the District 

Court found that processing occurs at the site of gravel 

extraction because the cost of transporting the material 

elsewhere for processing would render the mining economically 

infeasible. The District Court also found that gravel 

processing on site includes washing, crushing, screening, and 

concrete and asphalt batching and that these activities are 

part of the recovery of gravel resources. Missoula County 

argues that if gravel mining industry practices are relevant 

to this case, American Asphalt did not produce sufficient 

evidence to show that industry practices include the full 

range of processing on site. We will not reverse a District 

Court's findings of fact unless the record as a whole lacks 

substantial, credible evidence to support the findings. 

Wallace v. Wallace (Mont. 1983), 661 P.2d 455, 457, 40 

St.Rep. 430, 433. We hold that the record supports the 

District Court's findings noted above and that the District 

Court properly applied the statutes involved. 

Missoula County has urged this Court to construe the 

meaning of these statutes in a broader context applicable to 
all mineral, agricultural, and timber resources. The record 

before us concerns gravel mining in a particular geographic 

1 oca tion. We decline to announce a broad, sweeping 

interpretation on such a narrow record and restrict the 

holding of this opinion accordingly. 

The District Court's judgment is 

4. 

We concur: - /