rj ORIGINAL 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DA 21-0596 

STATE OF MONTANA; and MONTANA 

DEPARTMENT OF NATURAL RESOURCES 

AND CONSERVATION, 

Plaintiffs and Appellees, 

v. 

AVISTA CORPORATION, a 

Washington corporation, 

Defendant and Appellant. 

JUL 2 8 2022 

Bowen Greenwood 

Clerk of Supreme Court 

State of rviontana 

ORDER 

This matter arises from a 2004 complaint for declaratory relief that Appellant Avista 

Corporation and PPL Montana, LLC, filed to contest the State of Montana's claim that it 

was entitled to collect rent for riverbed acres occupied by hydropower projects owned by 

the two companies. The case comes before the Court on Avista's appeal of the First 

Judicial District Court's October 26, 2021 Order concluding that Avista is not entitled to a 

credit or refund for rent previously paid to the State under the parties' 2007 Settlement and 

Consent Judgment. 

Three provisions of the Settlement and Consent Judgment are at issue, referred to 

as the Most Favored Nations Clause (MFNC), the Government Reopener, and the Judicial 

Reopener. Each clause calls for retroactive reduction or modification of Avista's agreed 

rent depending on the occurrence of some triggering event. The District Court found 

"undisputed" that none of the triggering events had occurred. Because the provisions had 

not been triggered, the court concluded that Avista was not entitled to a rent adjustment "at 

this time." The court continued on to analyze whether, once triggered, either the MFNC 

or the reopener clauses would entitle Avista to apply a reduced rental rate back to all of its 

previous payments under the Consent Judgment. It concluded they would not. Avista asks 

07/28/2022

Case Number: DA 21-0596
this Court to conclude that, if the clauses are triggered, Avista is entitled to a credit or 

refund under the bargained-for provisions. The State urges the Court to affirm, arguing 

that the District Court correctly concluded that Avista is not entitled to a refund if a 

triggering event occurs under the MFNC or the reopener clauses. 

The judicial power of Montana's courts is limited to "justiciable controversies." 

Plan Helena, Inc. v. Helena Regl. Airport Auth. Bd., 2010 MT 26, ¶ 6, 355 Mont. 142, 226 

P.3d 567. Among the central concepts of justiciability is ripeness, "which is concerned 

with whether the case presents an 'actual, present' controversy" "as distinguished from an 

opinion advising what the law would be upon a hypothetical state of facts, or upon an 

abstract proposition." Reichert v. State, 2012 MT 111, 1 53, 54, 365 Mont. 92, 278 P.3d 

455 (citations and internal quotations omitted). Though neither party discusses it, 

justiciability is "a threshold question which this Court must raise and address sua sponte 

even if it has not been raised by the litigants." Moody's Mkt., Inc. v. Mont. State Fund, 

2020 MT 217, ¶ 18, 401 Mont. 168, 471 P.3d 68. The Court desires the parties' views on 

whether the issues Avista raises on appeal present a justiciable controversy or call for an 

advisory opinion if the provisions of the Settlement and Consent Judgment have not been 

triggered. 

IT IS THEREFORE ORDERED that the parties shall have thirty days from the date 

of this Order in which to file simultaneous supplemental briefs, limited to 5,000 words 

each, addressing the question whether the issue is ripe for consideration if none of the 

triggering events have occurred. 

The Clerk is directed to notify all counsel of record of the entry of this Order. 

For the Court, 

By 

2 

cting Chief Justice