### No, 84-559 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1985

MISSOULA COUPJTY, Plaintiff andAppellant,

-vsAMERICAN ASPHALT, INC

# ., Defendantand Respondent,

APPEAL FROM: DistrictCourtof the Fourth Judicial District, Inand for the County ofMissoula, The Honorable DouglasHarkin,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Robert

### L. Deschamps,111,CountyAttorney, Missoula, Montana

For Respondent: Snavely & 

### Phillips,Missoula, Montana Worden,Thane & 

### Haines;Ronald Bender, Missoula, Montana

Filed: Submittedon Briefs: March 14, 1985 Decided: June 25, 1985



## - ClerkMr. 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. Weaffirm. 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 barrierof topsoil; toplant

### trees toreduce visual and sound impact; touse dust suppressant on the road tothe pit; to fence the area to protect children; and to drive trucks entering or leaving the mine only on a specific route in ordertoavoid drivingby anelementary 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 tohalt the operation. On September 14, 1982, the District Court denied the request for an injunction but ordered American Asphalt to apply for a floodplainpermit. American Asphalt applied for and received a permit on November 9, 1982 from theBoard of County Commissioners. The floodplain permit was limited togravel extractionunless the court decided other proposed activities

### were allowable underthe applicable zoning and comprehensive planning for the

area. The subject property was zoned for single family residential uses with a 

### limitof one dwellingper acreprior to the grave1 extraction by American Asphalt. The uses designated intheMissoula 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 allowgravel extraction only incertain

areas with a special exception permit. Processing, of gravel, such aswashing, 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 tolocate an asphaltbatch plant inwhich asphalt oil 

### is added to the sorted gravel and a concrete batch plant inwhich cement 

### is added tothe sorted gravel on the site as 

### well. According to testimony presented by American Asphalt attrial, the asphalt and concretebatching

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, inan 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, theDistrictCourt issued findingsof factand conclusions of law and judgment in favor of American Asphalt. Missoula County appeals from that part of the judgment holding thatsections 76-1-113 and 76-2-209, MCA exempt all mining operations from the zoning and comprehensive planning of Missoula County. The issuespresented forreview are: (1)Did the DistrictCourt 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 activitiesof American Asphalt

### were within the "completeuse, development and recovery of a mineral resource" pursuant to section76-2-209, 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, oragricultural resourcesby theowner thereof." The chapter on planning contains a nearly identical provision, section 76-1-113, MCA which states: "Nothing inthischapter shall be deemed to authorize an ordinance, resolution, or rule which would prevent the complete use, development, or recovery of anymineral, forest, oragriculturalresourcesby theowner 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, 54L.Ed.2d 793, and Haker v. SouthwesternRailway Co. (1978), 178Mont. 364, 578 P.2d 724. The intentionof the legislature must firstbe determined from the plain meaning of thewords 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 rulesof statutory construction. Stateex 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~mptedall 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 ofplain language expresslyprohibiting regulation of particular land uses is found in section 76-2-109,MCA. That section states: 

### "Noplanning district or recommendationsadopted under this part shall regulate landsused for grazing, horticulture, agriculture, or the growing of timber.

## " Section 76-1-113 and 76-2-209, MCA, by comparison, donotprohibit regulation of thenamed resources by their plain language, they merely say any regulations imposed by the county cannot result in preventing the completeuse, development orrecovery of thenamed 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 tobenefit 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 tointerpret thisphrase within theplain 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 statutesplainly expressed legislative intentwithout straining interpretation, no extension beyond that plain popular meaningwould be required. Adams v. Morton (C.A.Mont. 1978), 581F.2d 1314, 1320, cert. denied. GrosVentre 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 thewordswithin the gravel industry in order to interpretand 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,developmentor recovery." Considering the legislative intent to not prevent the owner of the resource from benefiting, a 

### countymust at least allow the activities necessary to develop the resource to a point atwhich 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 themining 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 industrypractices are relevant to this case, American Asphalt did not produce sufficient evidence to show that industry practices include the full range ofprocessing 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 Courtproperly applied the statutes involved. Missoula County has urged this Court to construe the meaning of these statutes in a broader context applicable to

### allmineral, agricultural, and timber resources. The record before us concerns gravel mining in a particular geographic 1



### ocation. We 

### decline to announce a broad, sweeping interpretation on such a narrow record and 

### restrict the holding of thisopinion accordingly. The District

### Court's judgment is

4.

We

### concur: -

# /