# ORIGINAL

- IN THE SUPREME COURT OF THE STATE OF MONTANA DA 21-0535

FLATHEAD LAKERS INC., a Montana non-profit public benefit corporation, AMY J. WALLER, STEVEN F. MOORE, CYNTHIA S. EDSTROM, ADELE ZIMMERMAN, MARTIN FULSAAS and GAIL A. WATSON-FULSAAS, LAUREL FULLERTON, ALAN and DEIRDRE COIT, and FRANK M. WOODS, Petitioners, Appellees and Cross-Appellants,

v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Respondents, MONTANA ARTESIAN WATER COMPANY, Respondent and Appellant, and
WATER FOR FLATHEAD'S FUTURE,
Intervenor. 

# FILEC
MAR 1 52022
Bowen Cireenw000 Clerk of Suprerne Couri State of tvlontana



### ORDER

By petition filed February 22, 2022,AppelleesFlatheadLakers, Inc.,et al.(Flathead Lakers) petition this Court for rehearing on our prior order, filed in this matter on January 25, 2022, denying its motion for dismissal of the appeal of Appellant Montana Artesian Water Company (MAWC), filed on October 29, 2021, from an adverse District Courtjudgment, filed September 30, 2021, vacating for remand the final agency decision of the Montana Department of Natural Resources and Conservation granting a disputed beneficial water use permit (Permit No. 76LJ-30102978) to MAWC for use in Flathead County. Flathead Lakers asserted that the appeal was prematurebecause theDistrict Court 03/15/2022

Case Number: DA 21-0535had yet to rule on their related motion for attorney fees, timely filed on October 12, 2021,

twelve days after entry ofjudgment on the merits and after Flathead Lakers' October 1, 2021 filing and service of notice of entry ofjudgment. Construing M. R. Civ. P. 58(e) (lower courtjudgment not final forpurposes ofappeal "until any necessary determination" regarding attorney fees, cost, or sanctions is made—untimely notice of appeal does not deprive lower court ofjurisdiction to dispose of such matters on "timely motion") in conjunctionwithBallouv. Walker, 2017MT 197, ¶22, 388Mont. 283, 400 P.3d234 (postjudgment motion for attorney fees is in essence aM. R. Civ. P. 59 motion to alter or amend judgment subject to mandatory 60-day Rule 59(f) jurisdiction deadline), we denied Flathead Lakers' motion to dismiss on the stated ground that the appeal was not premature because the subject District Courtjudgment did not reservejurisdictionto address a related attorney fees issue and the 60-day Rule 59(f) deadline had expired without ruling on the attorney fees motion that triggered it. Citing Bitterroot River Protective Ass'n v. Bitterroot Conservation Dist (BRPA), 2011 MT 51, In 6-17, 359 Mont. 393, 251 P.3d 131 (express reservation injudgment on the merits ofjurisdiction in re related pre-judgment motion for attorney fees rendered judgment not final for purposes of appeal, thus rendering Rule 59 and constituent Rule 59(1) deemed-denied deadline inapplicable), FlatheadLakers now assertthatrehearing and reversal of our order of denial is warranted under M. R. App. P. 20 because this Court "overlooked or wasynaware" that, based on their ancillary motion later filed on October 12, 2021, an October 29, 2021 District Court order "bifurcated" the attorney fees issue raised in theirpost-judgment motion.1 Flathead Lakers thus assert that this "newly brought forward" fact renders our prior order ofdenial erroneously inconsistent with our pertinent holding in BRPA. However, upon review of our prior order, MAWC's response to the rehearing petition, and all pertinent authorities, we disagree. As a threshold matter, contrary to their deliberate after-the-fact equivocation here, this Court did not "overlook" the "newly brought forward" fact of the District Court's
The District Court later accordingly awarded attorney fees to Flathead Lakers byjudgment filed February 14, 2022.

### October 29th bifurcation order. Forwhatever reason, Flathead Lakers simply neglected to

reference that only now-purported material fact in their prior motion to dismiss. As an additional threshold matter, Flathead Lakers' February 22nd petition for rehearing on our January 25th order ofdenial wasmanifestly untimely in violation ofM.R.App.P.20(2)(a) (15-day deadline for rehearingpetitions). Moreover, BRPA is in any event distinguishable because, unlikethe expressreservation ofjurisdiction regarding thepre-judgment attorney fees motion included in the subjectjudgment on the merits that thus precluded application ofRule 59 there,Flathead Lakers'post-judgment motions for attorney fees and bifurcation did not similarly preclude application ofRule 59 here, and the District Court's after-thefact October 29thpost-judgment bifurcation order was neither a similar contemporaneous reservation of jurisdiction in its underlying judgment on the merits, nor could it retroactively effect such reservation. IT IS THEREFORE ORDERED that Flathead Lakers' February 22, 2022 petition for rehearing on our January 25, 2022 order denying their motion to dismiss MAWC's appeal as premature is hereby DENIED. TheClerk ofthisCourt ishereby directed to serve notice ofthis Order on all counsel ofrecord. DATED this 16

— day ofMarch, 2022.

ChiefJustice 

# e9.4

Justices