IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE ADJUDICATION 

OF THE EXISTING RIGHTS TO THE USE .. OF ALL THE WATER, BOTH SURFACE AND 

UNDERGROUND, WITHIN THE DEARBORN S o % 

DRAINAGE AREA, INCLUDING ALL 2 Afl % 2 

TRIBUTARIES OF THE DEARBORN RIVER ?z" 

IN CASCADE AND LEWIS AND CLARK "YS P 2 

COUNTIES, MONTANA, 3 Y' 5 0 

-9 5- a 

DEPARTMENT OF FISH, WILDLIFE AND PARKS, 9 -L, 9 

Tr- Claimant and Appellant, L r" <I '9 L 

-vs- 0 -7= 

0 

c 

6 

MONTANA STOCKGROWERS ASOCIATION, INC., 

Respondent and Respondent. 

3 

APPEAL FROM: Montana Water Courts 

The Honorable Roy C. ~odeghiero, Judge presiding 

COUNSEL OF RECORD: 

For Appellant: 

Robert N. Lane, Chief Legal Counsel, Department 

of ~ish, wildlife & Parks, Helena, Montana 

For Respondent: 

Perry T. Moore, Moore, O'Connell, ~efling & Moon, P.C. 

Bozeman, Montana 

Filed: 

Submitted: October 4, 1989 

Decided: November 21, 1989 

d 

Clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from a judgment of the Water Court, 

Upper Missouri Division, finding the appellant, the Montana 

Department of Fish, Wildlife and Parks (Department) , liable 

for attorneys' fees and costs incurred by the Montana 

Stockgrowers Association, Inc. (Stockgrowers). We reverse. 

The sole issue on appeal is: 

Whether the Water Court erred in awarding attorneys' 

fees and costs to the Stockgrowers, who prevailed against the 

Department in a case involving the public's recreational use 

rights of the waters in Bean Lake. 

This issue arose out of this Court's decision in the 

Bean Lake case. Matter of Dearborn Drainage Area (Mont. 

1988), 766 P.2d 228, 45 St.Rep. 1948. In Bean Lake, the 

Department pursued a water right claim, for the waters of 

Bean Lake as part of the ongoing statewide adjudication of 

water rights under the Montana Water Use Act. See SS 

85-2-201, MCA et seq. The Stockgrowers intervened in 

response to statewide notice by publication and opposed the 

Department's claim. Legal counsel for the Stockgrowers, was 

appointed lead counsel for all intervenors opposing the 

claim. 

The Water Court ruled, and we affirmed, the Department 

had no appropriation right in Bean Lake predating 1973, 

because before that time no such right was recognized for 

recreation, fish and wildlife. Before 1973, some form of 

diversion was necessary for an appropriation. Because the 

right asserted by the Department lacked the elements of 

"diversion, intent, and notice," we held that the Department, 

for itself or for the public, had no valid water right which 

predated the 1973 Water Use Act. 
Then after remittitur the Stockgrowers filed a motion 

for attorneys' fees. A hearing was held, and the Water Court 

ruled that the Stockgrowers were entitled to attorneys' fees 

and costs. The court arrived at this conclusion although it 

specifically found that the Department acted in good faith 

within its statutory obligation to represent the public's 

recreational interest. It based its conclusion on the fact 

that the case was of precedent setting nature. Because the 

outcome was significant to all water users in the state, the 

court ruled that the Stockgrowers assumed "a burden which was 

disproportionate to its interest in Bean Lake." It held the 

case presented unique circumstances which warranted an 

assessment of costs and attorneys' fees. 

The Department's position is that when attorneys' fees 

and costs are to be assessed against agencies of the state, 

one must determine whether they are warranted under § 

25-10-711, MCA. This statute, it is maintained, sets out the 

specific test that must be met before costs, as enumerated in 

S 25-10-201, MCA, and attorneys' fees, can be assessed. In 

short, it requires that such award is only proper when a 

private party prevails against the state agency and the claim 

or defense asserted by the agency was frivolous or pursued in 

bad faith. Section 25-10-711, MCA. 

The Department takes the view that this statute sets out 

the sole means by which attorneys' fees can be granted. They 

argue that the judgment rendered by the Water Court is in 

error because it specifically found the claim was asserted in 

good faith and in accordance with the statutory mandate of 5 

85-2-223, MCA. This statute directs the Department to 

represent the public in claiming water for recreational use. 

The Department asserts that a failure on its part to make the 

claims on Bean Lake would have been tantamount to a 

dereliction of duty on its part. Therefore, because the 
claim was asserted in good faith, the assessment of fees and 

costs was in error. 

The Water Court did not rely upon 5 25-10-711, MCA, to 

arrive at its conclusion. It held that due to the 

constitutional and economic significance of this case, the 

State should bear all of the costs. It reasoned that in 

order to ensure full presentation of all public interests 

affected by its decision, it was necessary to provide fundinq 

to private organizations, such as the Stockgrowers. If thi~ 

funding is not provided, certain viewpoints may not he 

presented, and, as a result the overall integrity and 

effectiveness of the adjudication process may be diminished. 

The Water Court's ruling does not comply with the 

general rules set out by this Court regarding attorneys' 

fees. We have held that Montana adheres to the "American 

Rule" regarding attorneys' fees. Under the American Rule, a 

party in a civil action is generally not entitled to fees 

absent a specific contractual or statutory provision. In Re 

Marriage of Hereford (1986), 223 Mont. 31, 723 P.2d 960. 

It is true that we have departed from this rule when 

certain extraordinary and compelling circumstances have been 

presented. For instance, in Cate v. Hargrave (1984), 209 

Mont. 265, 680 P.2d 952, we held that under the inherent 

equitable powers held by the judiciary, a District Court can 

assess attorneys' fees in cases of bad faith. Rut we 

disagree with the Water Court that the circumstances of this 

case provide a basis for the assessment of fees. 

The Stockgrowers is a private organization that 

represents approximately 3,000 farmers and ranchers across 

the State. Many of its members hold a right to use the 

waters which are owned by the State. The Stockgrowers, like 

many other organizations, have a distinct economic and 

philosophical interest in the uses and adjudication of the 
waters within the State. They represent primarily a private 

agricultural interest. 

The Department, on the other hand, has been charged by S 

85-2-223, MCA, with the duty of representing the public 

interests in regard to recreational use of Montana waters. 

The duty conferred by this statute is concomitant with 

Article IX, Section 3, Part 3 of the Montana Constitution 

which states: 

All . . . waters within the boundaries of the state 

are the property of the state for use of its people 

This provision sets forth the fact that the waters of 

the State belong to the State for use by all of its citizens. 

However, as this case demonstrates, these uses often 

conflict, and competing interests often disagree over how 

this resource should be allocated. 

The premise of the Montana Water Use Act anticipates 

these disagreements, and the integrity of Montana's 

adjudication process depends upon the assertion and ultimate 

resolution of these varying interests. The provisions of the 

Act charge all water users with the duty of asserting and 

defending their interests. The Stockgrowers has taken upon 

itself the duty of defending a private agricultural interest. 

The Department, on the other hand, has been directed to 

enhance and protect the State's resources under its charge. 

It therefore claims waters necessary to ensure the well being 

of fish, wildlife and scenic values in order to fulfill this 

mandate. 

Viewed in this context, the dispute at Bean Lake, is 

really no more than an ordinary water rights dispute which 

was envisioned, by the legislature in the passage of the 

Montana Water Use Act. The legislature in the passage of the 
Act determined that the adjudication process would he 

adversarial in nature. It did not, however, determine that 

the prevailing parties in these disputes would be entitled to 

attorneys' fees. 

Many water rights disputes have the potential of 

affecting a number of water users. A case determining a 

question of abandonment, for example, could have far reaching 

effect on other water users. However, this Court declines to 

award attorneys' fees and costs for the sole reason that a 

case is of precedent setting nature. We agree with the 

rationale of the California Supreme Court in Woodland Hills 

v. City Council of Los Anqeles (Cal. 1979), 593 P.2d 200: 

. . . the doctrine of stare decisis has never been 

viewed as sufficient justification for permitting 

an attorney to obtain fees from all those who may, 

in future cases, utilize a precedence he has helped 

to secure. Woodland Hills, 593 P.2d at 216. 

The Stockgrowers urge the Court to recognize and apply 

the Private Attorney General Doctrine to the facts of this 

case. The Water Court did not utilize this doctrine in 

arriving at its conclusion. However, we will point out that 

the Doctrine should not apply to the facts of this case. The 

Doctrine is normally utilized when the government, for some 

reason, fails to properly enforce interests which are 

significant to its citizens. In this case, the Department 

complied with its mandate and represented a public's interest 

as defined by § 85-2-223, MCA, in making the in-lake claims 

at Bean Lake. There was no failure on its part to comply 

with its duties. 

We reiterate the point that the Department acted in good 

faith and in accordance with constitutional and statutory 

mandates in making its claims at Bean Lake. We therefore 
hold that the award was in error and the judgment awarding 

fees is reversed.