# 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

Thismatterarises from a2004complaint fordeclaratory reliefthatAppellantAvista Corporation and PPL Montana, LLC, filed to contest the State ofMontana'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 concludingthat Avista is not entitledto a credit or refund forrentpreviously paid tothe Stateundertheparties' 2007 Settlement and Consent Judgment. Three provisions ofthe Settlement and Consent Judgment are at issue, referred to as the Most FavoredNations Clause (MFNC), the Government Reopener, and the Judicial Reopener. Each clause calls for retroactive reduction or modification ofAvista's agreed rent depending on the occurrence of some triggering event. The District Court found "undisputed"that none ofthe triggering events had occurred. Because the provisions had notbeen triggered,the court concludedthat Avistawas not entitledto 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 rateback to all ofits previouspaymentsundertheConsent Judgment. It concludedthey wouldnot. Avista asks 07/28/2022

Case Number: DA 21-0596this Court to conclude that, ifthe 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." PlanHelena, Inc. v. Helena Regl. AirportAuth. Bd., 2010 MT 26,

## ¶6, 355 Mont. 142,226 P.3d 567. Among the central concepts ofjusticiability 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 ajusticiable controversy or call for an advisory opinion ifthe provisions ofthe Settlement and Consent Judgment have not been triggered. IT ISTHEREFORE ORDERED that theparties 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 ofrecord ofthe entry ofthis Order. For the Court, By

2 cting ChiefJustice