NO. 94-087

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

LEN WALLACE and PAMELA WALLACE,

d/b/a BIG VELVET RANCH,

Applicants and Appellants,

-vsAPPEAL FROM: District Court of the Twenty-First Judicial Dist.,

In and for the County of Ravalli,

The Honorable Jeffrey Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Ward Swanser; Moulton, Bellingham, Longo & Mather,

Billings, Montana

For Respondents:

Robert N. Lane and Beate Galda, Montana Department

of Fish, Wildlife and Parks, Helena, Montana

Filed:

Submitted on Briefs': October 28, 1994

Decided: January 24, 1995
Justice Karla M. Gray delivered the Opinion of the Court.

Len and Pamela Wallace (Wallaces), doing business as the Big

Velvet Ranch, appeal from the findings, conclusions, and judgment

of the Twenty-First Judicial District Court, Ravalli County,

denying their application for a writ of mandamus directing the

Montana Department of Fish, Wildlife, and Parks (Department) to

issue a license for expansion of their game farm. We affirm.

Early in 1992, the Wallaces obtained a license from the

Department for the operation of a 160-acre game farm located in

Ravalli County, Montana. Over the next year, the Wallaces applied

for, and received, expansion licenses for approximately 1,904

additional acres.

In early 1993, the Wallaces became aware that House Bill 338,

containing extensive revisions of the game farm licensing statutes,

had been introduced in the Montana legislature. They submitted an

expansion application to add 2,600 acres to their game farm on

March 15, 1993; the Department received the application on March

22, 1993. Before the Department was required to act on the

application, House Bill 338 was approved and became effective on

April 12, 1993. Section 18, Chap. 315, 1993 Mont. Laws 982. The

Department notified the Wallaces that their application would be

subject to the amended game farm licensing procedure.

The Wallaces demanded that the Department review the

application and issue the license under the law in effect on the

date the application was submitted. The Department denied the
Wallaces’ request and refused to issue the license under s 87-4-

409, MCA (1991); it imposed the requirements of 5 87-4-409, MCA

(19931, on the Wallaces' application.

The Wallaces then applied to the District Court for a writ of

mandamus directing the Department to issue the game farm license

pursuant to the 1991 version of the statute. The District Court

issued the writ, directing the Department to issue the license or,

in the alternative, to appear and show cause why it had not done

SO. Following a hearing, the District Court issued findings of

fact, conclusions of law, and a judgment quashing the writ and

denying the Wallaces' application for a writ of mandamus. The

Wallaces appeal. Additional facts are included in our discussion

of the issues.

As amended by the 1993 legislature, the game farm licensing

statutes imposed different obligations on both license applicants

and the Department. Section 87-4-409(3), MCA (1993), provides the

Department 120 days, rather than sixty days, to notify an applicant

of its proposed decision on an application. Section 3, Chap. 315,

1993 Mont. Laws 974. In addition, the Department is now authorized

to determine that an environmental impact statement is required

with regard to an application; in that event, the Department has an

additional 180 days within which to act on the application.

Section 3, Chap. 315, 1993 Mont. Laws 974. The legislature also

amended fi 87-4-411, MCA, to increase the initial license fee from

$100 to $200. Section 5, Chap. 315, 1993 Mont. Laws 976.

It is undisputed that 5 87-4-409, MCA (1993), was not

3
expressly declared to be retroactive and, as a result, that the

District Court correctly concluded that it was not, by its terms,

a retroactive law. See § l-2-109, MCA. The dispositive issue

before us is whether the District Court erred in concluding that

subjecting the Wallaces' expansion license application to § 8?-4-

409, MCA (1993), did not constitute an impermissible retroactive

application of that statute. We review a district court's

conclusions of law to determine whether they are correct. Saint

Vincent Hosp. v. Blue Cross (1993), 261 Mont. 56, 60, 862 P.2d 6,

8 .

A retroactive law is defined as one "which takes away or

impairs vested rights acquired under existing laws or creates a new

obligation, imposes a new duty, or attaches a new disability in

respect to transactions already passed." Saint Vincent Hosp., 862

P.2d at 9; citing City of Harlem v. State Highway Comm'n (1967),

149 Mont. 281, 284, 425 P.2d 718, 720. Any such imposition on a

vested right or past transaction is sufficient to constitute an

impermissible retroactive application of a statute. See Thayer v.

Hicks (1990), 243 Mont. 138, 157, 793 P.2d 784, 796.

A. Did the Wallaces have a vested right to receive a

game farm license by virtue of submitting an application

prior to the effective date of the 1993 amendments to 5

87-4-409, MCA?

The evidence presented to the District Court characterized the

pre-amendment game farm application process as a "formality" and

established that the Wallaces were qualified applicants under 5 87-

4-409, MCA (1991); licensure pursuant to that statute had

4
previously been a virtual certainty. Based on that evidence, the

Wallaces argue that they acquired a vested right to approval of

their license application on submission of that application and

that the Department's review under the provisions of 5 87-4-409,

MCA (1993), constituted an impermissible retroactive application of

that statute.

"A license is a grant by a government authority or agency of

the right to engage in conduct that would be improper without such

a grant. The conferment of a license . . . is merely a privilege

II . . . 4 Stein, Mitchell, Mezines, Administrative law, 5 41.01

(1994); West-Mont Community Care v. Board of Health (1985), 217

Mont. 178, 182, 703 P.2d 850, 852. The Wallaces clearly are not

entitled to operate a game farm on their property without first

obtaining a license from the Department, and obtaining a license

requires compliance with applicable statutory criteria. Section

87-4-407(l), MCA; see State ex rel. Dep't of Health and Env. Sci.

v. Green (1987), 227 Mont. 299, 303-04, 739 P.2d 469, 472-73.

Similarly, in making a decision on a license application, the

Department is required to act in accordance with the statutes

circumscribing its powers. & Peterson v. Livestock Comm'n

(1947), 120 Mont. 140, 147, 181 P.2d 152, 156. As a general rule,

the Department's decision on a license application must be based on

the law in effect at the time of that decision despite the fact

that the law may have changed. Ziffrin, Inc. v. United States

(194X), 318 U.S. 73, 78, 63 S.Ct. 465, 469, 87 L.Ed. 621, 625-26;

see also, Wilson v. State Highway Comm'n (19621, 140 Mont. 253,

5
257, 370 P.2d 486, 488.

The Wallaces' mere submission of an application for expansion

of their game farm did not vest in them a right to issuance of the

license as of the date the application was submitted. Section 07-

4-409, MCA (1991), is captioned "Application for licenselimitations on issuance;'q subsection (3) of the statute authorizes

the Department to review, and either grant or deny, an application

within sixty days. Thus, the license was a privilege to which the

Wallaces were not entitled until such time as the Department acted

on the application. The statutory review process and time period

had not been completed prior to the effective date of the amended

statute.

Nor does the parties' agreement that license approval under

5 87-4-409, MCA (1991), was "virtually automatic” alter the fact

that receipt of a game farm license was not certain until the

Department acted pursuant to the statute. In addition, we note

that an environmental assessment prepared during the Department's

review of one of the Wallaces' prior expansion applications

indicated that further expansion could detrimentally impact winter

game animal habitat and a migration corridor. Based on that

history and the Department's clear authority under § 87-4-409, MCA

(1991), to deny an application, issuance of a license cannot be

said to have been a certainty. We conclude, therefore, that the

Wallaces' mere submission of a completed application did not result

in a vested right to issuance of a license under § 87-4-409, MCA

(1991) .

6
The Wallaces cite no authority for their assertions that they

had a vested right to receive a license under the terms of 5 87-4

409, MCA (19911, or that Department review of their application

pursuant to § 87-4-409, MCA (1993), otherwise impaired their vested

rights and, indeed, our decision here is in accord with prior

decisions addressing retroactive application of statutes. in Saint

Vincent Hosu., Blue Cross/Blue Shield and Deaconess Medical Center

entered into an exclusive contract under the Preferred Provider Act

(Act). Saint Vincent Hospital subsequently sought to become a

party to that contract pursuant to an amendment to the Act. We

determined that applying the amended Act to the existing contract

would be an impermissible retroactive application of that law

because it would divest contractually negotiated rights to an

exclusive contract, as well as provide access to contractually

confidential information. Saint Vincent Hosp., 862 P.2d at 9.

Similarly, we determined in Citv of Harlem that application of a

new statute requiring the Highway Commission to gain a

municipality's consent before constructing a highway by-pass of

that municipality impaired the Highway Commission's vested rights

under various contracts. City of Harlem, 425 P.2d at 720.

Unlike the vested contractual rights at stake in Saint Vincent

HOSP. and Citv of Harlem, the present case involves the mere

submission of an application for a game farm license. The

Wallaces' only vested rights are in the game farm license and

expansion licenses received prior to the effective date of § 87-4-

409, MCA (1993). Those rights are not impacted in any way by the

7
1993 amendments or the license application at issue here.

B. Did the statutory amendments authorizing the

Department to require an environmental impact statement,

increasing the initial license fee, and expanding the

time frame for review create a new obligation, impose a

new duty, or attach a new disability with respect to past

transactions between the Department and the Wallaces?

Approximately 100 days after receiving the Wallaces'

application, the Department informed the Wallaces pursuant to 5 87-

4-409 (3), MCA, that an environmental impact statement was required

and requested a $25,000 deposit to initiate the study. Because of

the need for the environmental impact statement, the Department

also informed the Wallaces that 5 87-4-409(3), MCA (19931, provided

it with an additional 180 days to complete the evaluation of the

application. The Wallaces argue that the deposit to fund an

environmental impact statement, the expanded time period for

departmental review, and the license fee increase created new

obligations, duties, and disabilities which should not be applied

retroactively.

As set forth above, creation of a new obligation, imposition

of a new duty, or attachment of a new disability in respect to

transactions already passed renders a law impermissibly

retroactive. Saint Vincent HOSP., 862 P.2d at 9. A transaction is

defined as "an act or agreement, or several acts or agreements

having some connection with each other, in which more than one

person is concerned, and by which the legal relations of such

persons between themselves are altered." Black's Law Dictionary

1496 (6th ed. 1990).

8
The transaction involved in Saint Vincent Hosp. was a contract

which had been in effect for approximately one year before the

amendment of the Act. With respect to that contract, we determined

that application of the amended statute would obligate Blue Cross

to offer an exclusive agreement to a party with whom it did not

intend to contract and impose a disability on Blue Cross because

the contract permitted Deaconess to terminate the agreement if Blue

cross entered into a similar agreement with another medical

provider. Saint Vincent Hosp., 862 P.2d at 9. Thus, applying the

amended Act to the existing contract would attach both a new

obligation and a new disability to a past transaction and

constitute an impermissible retroactive application of the statute.

Here, the Wallaces are not a party to any transaction which

would be altered as a result of the Department subjecting their

expansion license application to 5 87-4-409, MCA (1993). While

applying 5 87-4-409, MCA (1993), to an existing game farm license

possessed by the Wallaces arguably would constitute an

impermissible imposition of new obligations and disabilities to a

transaction already passed, no such effort occurred here. The mere

submission of a license application, although an act by the

Wallaces, cannot be said to alter the legal relationship between

them and the Department. We conclude, therefore, that subjecting

the Wallaces' pending license application to 5 87-4-409, MCA

(1993), did not impose a new duty, obligation, or disability with

respect to a transaction already passed.

We conclude that the Department properly subjected the

9
Wallaces’ game farm application to the provisions of s 87-h-409,

MCA (1993). We hold, therefore, that the District Court properly

concluded that application of 5 87-4-409, MCA (1993), did not

impair the Wallaces' vested rights or create a new obligation,

duty, or disability with respect to a past transaction and, thus,

did not constitute an impermissible retroactive application of that

statute.

The Wallaces argue separately that the Department violated its

own internal policies by not issuing them a license within sixty

days of submission of a completed application. This argument is

without merit. The Department policy simply mirrored the sixty-day

review requirement contained in 5 87-4-409(3), MCA (1991),

explicitly stating that 'I [tl he department is required by statute to

either issue or deny a game farm license within 60 days of

receiving a completed application." Moreover, a memorandum relied

on by the Wallaces specified that the procedures outlined therein

governed the review process until "final action on pending game

farm legislation." Once the amended statute became effective and

applicable, administrative policies which implemented prior

statutory requirements must necessarily give way to the new

controlling law. We conclude that the Department did not violate

its internal policy by subjecting the Wallaces' application to the

provisions of § 87-4-409(3), MCA (1993).

The Wallaces also make a passing assertion that the District

Court failed to properly consider and make findings of fact

regarding certain evidence. A district court's findings of fact

10
must be supported by substantial evidence, which is the amount of

relevant evidence a reasonable mind might accept as adequate to

support a conclusion. Accounts Management Corp. v. Lyman Ranch

(1987), 230 Mont. 35, 40-41, 748 P.2d 919, 923. We decline to

address this argument since it is clear that, for the most part,

the facts and evidence asserted by the Wallaces in this regard are

irrelevant in that they relate to findings which may have been

appropriate had we concluded that the pre-amendment version of §

87-4-409, MCA, was applicable here.

Given our resolution of the issues above, it is clear that the

District Court did not err in denying the Wallaces' application for

a writ of mandamus. A writ of mandamus is appropriate where a

party seeks performance of a clear legal duty by the party against

whom the writ is issued. State ex rel. Neuhausen v. Nachtsheim

(1992), 253 Mont. 296, 299, 833 P.2d 201, 203. We review a

district court's grant or denial of a writ of mandamus for abuse of

discretion. Neuhausen, 833 P.2d at 203.

Here, the Department properly subjected the Wallaces'

expansion license application to the provisions of § 87-4-409, MCA

(1993), and, as a result, mandamus is not available. We hold,

therefore, that the District Court did not abuse its discretion in

denying the Wallaces' application for a writ of mandamus.

Affirmed.

11
we concur:

12
January 24, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Ward Swanser

MOULTON, BELLINGHAM, LONG0 & MATHER, P.C.

P. 0. Box 2559

Billings, MT 59103-2559

Robert N. Lane and Beate Galda

Department of Fish, Wildlife and Parks

P. 0. Box 200701

Helena, MT 59620-0701

ED SMITH

CLERK OF THE SUPREME COURT

STATE,OF MONTANA