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

September 29 2015

Case Number: DA 15-0085
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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 
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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