No. 93-554 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

NORTHERN LIGHTS, INC., 

an Idaho corporation, 

Plaintiff and Respondent, 

THE STATE OF MONTANA, 

DEPARTMENT OF HIGHWAYS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nick A. Rotering and James R. Beck, Department of 

Transportation, Helena, Montana 

For Respondent: 

Larry D. Epstein and Thane P. Johnson, Werner, 

Epstein & Johnson, Cut Bank, Montana 

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Submitted on Briefs: April P. I 

L- r .J ? 3 1994 ,, A 6 'I Decided: May 3 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The State of Montana, Department of Highways, now the Department of Transportation (Department), appeals from a summary 

judgment order of the First Judicial District Court, Lewis and 

Clark County. The court ordered the Department to reimburse 

Northern ~ights, Inc. (Northern), an Idaho utility company, for 75 

percent of expenses incurred in relocating its utility facilities 

which were situated near a federal-aid secondary road in rural 

Lincoln County, Montana. We affirm. 

The Department questions whether the District Court erred in 

determining that 3 60-4-403, MCA, required the State to reimburse 

Northern for 75 percent of its relocation expenses and whether 

Northern's claim for reimbursement was barred by 5 27-2-211, MCA. 

Northern owns certain utility facilities located in Lincoln 

County. Portions of the facilities are located on United States 

Forest Service land and portions are located on private properties. 

Prior to 1986, the Federal Highway Administration (FHWA) 

decided to finance and construct a forest highway on Montana's 

federal-aid secondary road located in Lincoln County. By agreement 

With FHWA, the Department purchased necessary rights-of-way and 

administered the road project for the FHWA. 

Part of the Department's administration of the project 

entailed asking Northern to relocate its utility facilities which 

were located on Forest Service land. Northern complied. The 

District Court specifically noted: 

2 
Northern Lights began the process of moving its utilities 

in November of 1987 and completed the principal portion 

of its work by April of 1988. However, the entire 

relocation project was not completed until March 1989. 

The Department and Northern did not operate pursuant to any written 

contract; the Department did, however, prepare and offer Northern 

a utility relocation agreement, which Northern refused to sign. 

In January 1989, Northern requested a hearing pursuant to 

5 60-4-402, MCA, and the Department declined to grant the request. 

This declaratory judgment action followed that denial and the 

Department's refusal to reimburse Northern for a portion of the 

cost of relocating its utility facilities. 

ISSUE 1 

Did the District Court err in determining that the Department 

must reimburse Northern for 75 percent of relocation expenses as 

set forth in 9 60-4-403, MCA? 

This Court reviews a district court's decision for or against 

summary judgment by utilizing the same criteria the court used in 

its deliberations. Knight v. City of Missoula (1992), 252 Mont. 

232, 827 P. 2d 1270. Summary judgment is appropriate when there are 

no disputed issues of material fact and one party is entitled to 

judgment as a matter of law. Rule 56(c), M.R.Civ.P. Here, where 

both parties agree there are no disputed issues of material fact, 

we review whether Northern is entitled to judgment as a matter of 

law. 
The Department asserts that judgment in favor of Northern is 

improper because it believes that the provisions of 5 60-4-403, 

MCA, do not apply when federal funds are used to construct a 

highway in Montana and when the utility company involved has a 

Forest Service permit to be on the land. We disagree. 

When interpreting statutes, courts are to "simply . . . 

ascertain and declare what is in terms or in substance contained 

therein, not to insert what has been omitted or to omit what has 

been inserted." Section 1-2-101, MCA; see also State ex rel. 

Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 

203-04. Section 60-4-403, MCA, provides: 

Seventy-five percent of all costs of relocation, including the costs of acquisition of new right-of-way, of 

dismantling and of removal, shall be paid by the department as a cost of highway construction. 

The section does not list any prerequisites for payment, contrary 

to the Department's assertions. It does not contemplate, mention 

or refer to federal or state ownership of the highway. Cf. 5 60-4- 

401, MCA. It does not require that the utility company own, rent 

or lease the land. Nor does it require that the Department and the 

utility company have a written contract, specifying payment 

provisions. 

The only requirement before 75 percent of relocation costs 

must be paid by the Department under 5 60-4-403, MCA, is that a 

utility company relocate its utility facilities in order for the 

Department to further highway construction. Northern did relocate 
its facilities. We therefore conclude that the District Court did 

not err in determining that the Department must pay 75 percent of 

Northern's relocation costs. 

ISSUE 2 

Was Northern's claim for reimbursement of relocation expenses 

barred by 5 27-2-211, MCA? 

The Department argues that Northern's claim for reimbursement 

was barred by the statute of limitations set forth at 5 27-2-211, 

MCA, because it alleges that Northern completed relocation of the 

utility facilities during April 1988. While we agree that 

Northern's claim for reimbursement was a statutory claim with a 

two-year statute of limitations pursuant to P 27-2-211, MCA, we 

disagree with the Department's allegation that the relocation was 

completed during April of 1988. 

The Department bases its allegation on answers it received 

during the discovery phase of this litigation, which were filed in 

connection with the Department's June 1991 motion for summary 

judgment. Specifically, when the Department asked Michael Fox, the 

general manager of Northern, whether the relocation project was 

completed during April, 1988, Fox said yes. Fox later clarified 

his response by stating: 

As indicated in [the answer to the Department's question], . . . the major portion of the relocation work for 

which reimbursement is sought in this action, was 

completed by the latter part of April, 1988. It was this 

work to which affiant ref erred in response to Defendant s 

counsel's question at deposition herein, indicating that 
this portion of the work was, in fact, completed in April 

of 1988. 

Plaintiff corporation utilized the services of an 

independent contractor in the major portion of this 

relocation project and it was that work, referred to as 

"primary utility relocationv1 to which affiant ref erred in 

his response to deposition questioning by counsel for 

defendant and in response to Interrogatories from 

Defendant. This contractorvs work was substantially 

completed in April of 1988. 

Plaintiff Is claim upon which this action is based 

includes various items of work that were conducted in 

relocation of facilities for this project in the months 

following April of 1988 including work done directly by 

Plaintiff in November of 1988 and relocation of poles as 

recently as March, 1989. Work Orders Nos. 88-865, 88-822 

and 89-820 (referred to in affiant's deposition and 

Defendant s brief) were completed after the main project 

was completed and are a part of Plaintiff Is claim herein. 

In its November 4, 1991, Order, the court stated: 

In this claim for payment under Section 60-4-403, the 

utility is entitled to recover a percentage of all costs 

of relocation. Thus, the full demand for payment cannot 

be made until the entire relocation project is completed. 

On this basis, Northern Light's cause of action accrued 

upon completion of its relocation project, in March of 

1989. Since the complaint was filed in July of 1990, 

less than two years later, the action is not barred. 

After reviewing the record, we conclude that the court did not err 

in determining that Northern's claim was not barred by 1 27-2-211, 

MCA. Affirmed. 
We concur: