Gateway Vill., LLC v. Mont. Dep't of Envtl. Quality, DA 15–0085.

• Decision Date: 29 September 2015
• Docket Number: No. DA 15–0085.,DA 15–0085.
• Citation: 2015 MT 285,357 P.3d 917,381 Mont. 206
• Parties: GATEWAY VILLAGE, LLC, Plaintiff, Appellee and Cross–Appellant, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, Gallatin Gateway County Water & Sewer District, Defendants, Appellants and Cross–Appellees.
• Court: Montana Supreme Court

381 Mont. 206

357 P.3d 917

2015 MT 285

GATEWAY VILLAGE, LLC, Plaintiff, Appellee and Cross–Appellant

v.MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, Gallatin Gateway County Water & Sewer District, Defendants, Appellants and Cross–Appellees.

No. DA 15–0085.

Supreme Court of Montana.

Submitted on Briefs Sept. 23, 2015.

Decided Sept. 29, 2015.

For Appellant Montana Department of Environmental Quality: Kirsten H. Bowers, Kurt R. Moser, Special Assistant Attorneys General, Helena, Montana.

For Appellant Gallatin Gateway County Water and Sewer District: R. Allan Payne, Marc G. Buyske, Doney Crowley, P.C., Helena, Montana.

For Appellee: Brian K. Gallik, Gallik & Bremer, P.C., Bozeman, Montana, Matthew W. Williams, Williams & Jent, LLP, Bozeman, Montana.

Opinion

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 This action arises out of a final administrative decision by the Montana Department of Environmental Quality (DEQ) to grant a wastewater discharge permit to the Gallatin Gateway County Water & Sewer District. Gateway Village, LLC—which owns real property adjacent to and down-gradient from the proposed activities—filed a petition for judicial review and a complaint for declaratory and injunctive relief. The Eighteenth Judicial District Court, Gallatin County, remanded the case to DEQ for additional analysis including preparation of an Environmental Impact Statement (EIS). In addition, the court denied the District's and DEQ's motions for summary judgment or dismissal of Gateway Village's trespass claim, declined to entertain the District's claim that it holds a prescriptive easement under Gateway Village's land, and denied Gateway Village's request for attorneys' fees. DEQ and the District appeal, and Gateway Village cross appeals. We affirm in part, vacate in part, and remand for further proceedings.

¶ 2 The issues on appeal are whether the District Court erred in its ruling on Gateway Village's trespass claim and in declining to entertain the District's claim that it holds a prescriptive easement under Gateway Village's land. On cross-appeal, Gateway Village argues the court erred in denying its claim for attorneys' fees. The parties have not appealed the District Court's decision requiring an EIS.

BACKGROUND

¶ 3 Because of the District Court's unchallenged remand of this matter to DEQ for preparation of an EIS, a detailed recitation of the facts is unnecessary. Very basically, this case concerns a proposed wastewater treatment system in which the District would discharge up to 50,000 gallons of treated domestic wastewater each day into an underground mixing zone that underlies land owned by Gateway Village.

¶ 4 DEQ prepared an Environmental Assessment and, after review and consideration of public comments, approved the District's proposed wastewater system and issued a permit. Gateway Village then filed this action in the District Court. In addition to requesting judicial review of DEQ's issuance of the permit, Gateway Village affirmatively alleged that the discharge of waste water into groundwater extending under its surface property would constitute a common law trespass. DEQ and the District each moved for partial summary judgment on and dismissal of the trespass claim, which motions were fully briefed and considered at a hearing before the District Court.

¶ 5 The District Court issued an extensive opinion in which it granted the petition for judicial review and, as indicated above, determined that further environmental analysis is necessary. In addition, the court denied DEQ's and the District's motions for summary judgment or dismissal of Gateway Village's trespass claim, and denied Gateway Village's claim for attorneys' fees.

DISCUSSION

¶ 6 Whether the District Court erred in its ruling on Gateway Village's trespass claim and in declining to entertain the District's claim that it holds a prescriptive easement under Gateway Village's land.

¶ 7 Based upon the administrative record in this case, the District Court ruled that the use of Gateway Village's property as the mixing zone for the District's wastewater system would constitute a trespass invading Gateway Village's rights. Further, the court declined to entertain the District's previously-unasserted claim that it enjoys a prescriptive easement under Gateway Village's property based on prior approval of an existing minor subdivision. DEQ and the District argue both of those rulings were error.

¶ 8 In light of the District Court's unchallenged ruling remanding this case to DEQ for preparation of an EIS, we will not consider either of these issues at this time. Preparation of an EIS will result in substantial changes and additions to the administrative record in this case. See generally § 75–1–201, MCA. At this point, it is speculative whether the District will be entitled to a discharge permit or, if so, what terms or conditions might be contained in such a permit. Further, because the outcome of the EIS is unknowable at present, the prospect that a claim of trespass or prescriptive easement will eventually be reasserted is also speculative. Therefore, any determination of either the trespass or the prescriptive easement question would be premature and advisory. It has long been the policy of this Court that we do not issue advisory opinions. Not in Montana: Citizens Against CI–97 v. State, 2006 MT 278, ¶ 7, 334 Mont. 265, 147 P.3d 174. We decline to do so in this case.

¶ 9 In May of this year, we denied Gateway Village's motion to dismiss DEQ's and the District's appeal. In our order denying the motion to dismiss, we stated “the decision that a trespass will occur with any discharge of waste water into groundwater presents a justiciable controversy which is divisible from the rest of the District Court's order.” After further review of the record and the full briefing of the parties, we have reached a different...