Bitterroot River Protective Ass'n v. Bitterroot Conservation Dist.

• Decision Date: 22 March 2011
• Docket Number: No. DA 10–0209.,DA 10–0209.
• Citation: 359 Mont. 393,2011 MT 51,251 P.3d 131
• Parties: BITTERROOT RIVER PROTECTIVE ASSOCIATION, Plaintiff and Appellee,Montana Department of Fish, Wildlife and Parks, Involuntary Plaintiff,v.BITTERROOT CONSERVATION DISTRICT, a political subdivision of the State of Montana, Defendant,Walter R. Babcock, Bitterroot Springs Ranch, Tucker Crossing Ranch, and Valley Springs Ranch, Intervenors/Third Party Plaintiffs and Appellants,Marnell Corrao Associates, Inc., Intervenors/Third Party Plaintiff and Appellant,John & Kathy Lewis, Millie & Casey Dieffer, Edith L. & Skip Wark, Edwin C. & Judith Hebner, Susan A. & Larry Levenstein, Michael & Paulette Spaulding, Evelyn L. Locke, David J. Odell, Greg & Nancy Trangmoe, John & Patricia Cook, John & Elizabeth Fox, Etna Ditch Company, Webfoot Ditch Company, and Union Ditch Company, Intervenors and Appellants,Montana Farm Bureau Federation, Intervenors,v.Ravalli County Commissioners, Third Party Defendant.
• Court: Montana Supreme Court

359 Mont. 393

251 P.3d 131

2011 MT 51

BITTERROOT RIVER PROTECTIVE ASSOCIATION, Plaintiff and Appellee,Montana Department of Fish, Wildlife and Parks, Involuntary Plaintiff,

v.BITTERROOT CONSERVATION DISTRICT, a political subdivision of the State of Montana, Defendant,Walter R. Babcock, Bitterroot Springs Ranch, Tucker Crossing Ranch, and Valley Springs Ranch, Intervenors/Third Party Plaintiffs and Appellants,Marnell Corrao Associates, Inc., Intervenors/Third Party Plaintiff and Appellant,John & Kathy Lewis, Millie & Casey Dieffer, Edith L. & Skip Wark, Edwin C. & Judith Hebner, Susan A. & Larry Levenstein, Michael & Paulette Spaulding, Evelyn L. Locke, David J. Odell, Greg & Nancy Trangmoe, John & Patricia Cook, John & Elizabeth Fox, Etna Ditch Company, Webfoot Ditch Company, and Union Ditch Company, Intervenors and Appellants,Montana Farm Bureau Federation, Intervenors,

v.Ravalli County Commissioners, Third Party Defendant.

No. DA 10–0209.

Supreme Court of Montana.

Submitted on Briefs Nov. 17, 2010.Decided March 22, 2011.

For Appellants: John E. Bloomquist, Abigail J. St. Lawrence; Doney, Crowley, Bloomquist, Payne, Uda, P.C.; Helena, Montana (Attorneys for Walter R. Babcock, et al. and John and Kathy Lewis, et al.), John Warren; Davis, Warren & Hritsco; Dillon, Montana (Attorneys for Marnell Corrao Associates, Inc.).For Appellee: Sarah K. McMillan; Western Environmental Law Center; Helena, Montana, Jack R. Tuholske; Tuholske Law Office, P.C.; Missoula, Montana (Attorneys for Bitterroot Protective Association, Inc.).Justice JIM RICE delivered the Opinion of the Court.

[359 Mont. 395] ¶ 1 Appellants Walter R. Babcock, et al., John and Kathy Lewis, et al. (referred to collectively as “Landowners”), and Marnell Corrao Associates, Inc. (“Marnell”) appeal from the order entered by the District Court for the Twenty–First Judicial District, Ravalli County, awarding Appellee Bitterroot River Protective Association, Inc. (“BRPA”), attorney fees in the amount of $319,405.65. We affirm and remand. Appellants raise two issues, which we restate as follows:

¶ 2 1. Did the District Court lose jurisdiction to rule on BRPA's motion for attorney fees by operation of M.R. Civ. P. 59(g)?

¶ 3 2. Did the District Court abuse its discretion by awarding attorney fees to BRPA under the private attorney general doctrine?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 This is the third appeal to come before the Court regarding the Mitchell Slough, a stream running adjacent to the Bitterroot River in Ravalli County. See Bitterroot River Protection Ass'n v. Bitterroot Conservation Dist. (BRPA I), 2002 MT 66, 309 Mont. 207, 45 P.3d 24; Bitterroot River Protective Ass'n v. Bitterroot Conservation Dist. (BRPA II), 2008 MT 377, 346 Mont. 507, 198 P.3d 219.

¶ 5 In BRPA II, we concluded that “the Mitchell Slough qualifies as a natural, perennial-flowing stream” under the Natural Streambed and Land Preservation Act of 1975 (the “310 Law”), and that “the Mitchell Slough is subject to stream access and public recreation” as provided by Montana's stream access law (the “SAL”), reversing contrary conclusions entered by the District Court. BRPA II, ¶¶ 47, 85. We remanded “for entry of a judgment in favor of BRPA” and the Montana Department of Fish, Wildlife and Parks (“FWP”). BRPA II, ¶ 85.

¶ 6 On remand, BRPA petitioned for attorney fees under the private attorney general doctrine and the Montana Uniform Declaratory Judgments Act (“UDJA”). BRPA's request was based upon the time expended from 2003–2009 on the issues litigated in BRPA II, and sought fees from the intervening parties and the Bitterroot Conservation District (“BCD”).

¶ 7 The District Court ¹ bifurcated the attorney fee issue from the proceedings it conducted to enter judgment on the merits. The District Court filed judgment in favor of BRPA and FWP on July 20, 2009, stating therein that it “reserves jurisdiction to determine whether Plaintiffs are entitled to costs and attorney's fees which shall be determined separately.” After BRPA filed its petition for fees, the court conducted a hearing on entitlement to an award on September 8, 2009. On November 27, 2009, the court issued an order awarding fees against Landowners and Marnell, but denying fees as to the BCD. The District Court held a separate hearing on the reasonableness of fees and on March 25, 2010, issued an order awarding fees to BRPA in the amount of $319,405.65. Landowners and Marnell appeal.

STANDARD OF REVIEW

¶ 8 A challenge to the jurisdiction of a district court to enter a post-judgment award of attorney fees is reviewed for correctness as a question of law. See Associated Press v. Crofts, 2004 MT 120, ¶ 12, 321 Mont. 193, 89 P.3d 971. Jurisdictional issues are a “well-established” exception to the general rule that this Court will not address an issue that is raised for the first time on appeal. State v. Martz, 2008 MT 382, ¶ 20, 347 Mont. 47, 196 P.3d 1239.

¶ 9 The parties contest the standard of review for an award of fees under the private attorney general doctrine. BRPA argues that the standard is abuse of discretion, while Landowners argue that entitlement to an award of fees under the doctrine is a question of law, while the amount of the award is reviewed for abuse of discretion. We formally adopted the doctrine in Montanans for the Responsible Use of the School Trust v. State ex rel. Board of Land Commissioners (Montrust), 1999 MT 263, ¶¶ 64–69, 296 Mont. 402, 989 P.2d 800, wherein we concluded that the district court had abused its discretion in denying plaintiff's request for fees. We noted that an award of fees is “within the discretion of a district court.” Montrust, ¶ 68 (citing Joseph Russell Realty Co. v. Kenneally, 185 Mont. 496, 505, 605 P.2d 1107, 1112 (1980)). Accordingly, subsequent cases have employed an abuse of discretion standard in reviewing the grant or denial of attorney fees under the doctrine. See Baxter v. State, 2009 MT 449, ¶ 46, 354 Mont. 234, 224 P.3d 1211 (citing Trs. of Ind. Univ. v. Buxbaum, 2003 MT 97, ¶ 15, 315 Mont. 210, 69 P.3d 663); Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 87, 338 Mont. 259, 165 P.3d 1079; see also Hernandez v. Bd. of Co. Commrs., 2008 MT 251, ¶ 30, 345 Mont. 1, 189 P.3d 638 (noting that “the ‘private attorney general’ theory permits an award of attorney fees, in the discretion of the court ” (emphasis added) (citing Montrust, ¶ 66)).

¶ 10 Within the factors we have adopted for consideration of a fee award under the doctrine, there are determinations which are essentially legal in nature and which can weigh significantly on the outcome. For example, as we said in Baxter, the doctrine “applies only when constitutional interests are vindicated.” Baxter, ¶ 47. However, the ultimate determination based upon application of all the factors is reviewed for abuse of discretion, as we also stated in Baxter. See Baxter, ¶ 46. Evident from our reliance on Buxbaum in Baxter, we have reviewed district court determinations regarding private attorney general doctrine fees under the same standard of review we use for fee determinations pursuant to the UDJA, § 27–8–313, MCA, where the district court has discretionary authority to make an award of attorney fees if “necessary or proper,” see Buxbaum, ¶¶ 42, 46, and which we review for abuse of discretion. Renville v. Farmers Ins. Exch., 2004 MT 366, ¶ 20, 324 Mont. 509, 105 P.3d 280.

¶ 11 We review the amount of fees awarded for an abuse of discretion. See DiMarzio v. Crazy Mt. Constr., Inc., 2010 MT 231, ¶¶ 52–53, 358 Mont. 119, 243 P.3d 718. A district court abuses its discretion when “it acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason resulting in substantial injustice.” United Nat'l Ins. Co. v. St. Paul Fire & Marine Ins. Co., 2009 MT 269, ¶ 13, 352 Mont. 105, 214 P.3d 1260 (citing Kuhr v. City of Billings, 2007 MT 201, ¶ 14, 338 Mont. 402, 168 P.3d 615).

DISCUSSION

¶ 12 1. Did the District Court lose jurisdiction to rule on BRPA's motion for attorney fees by operation of M.R. Civ. P. 59(g)?

¶ 13 After denial of a petition for rehearing and issuance of remittitur, BRPA II was returned to the District Court on January 2, 2009. BRPA filed a bill of costs which stated that it would seek “attorney fees through separate pleadings.” The court issued a scheduling order on April 13, 2009, for motions related to the entry of judgment, stating “[t]he Court will enter judgment on the Supreme Court Order, reserving jurisdiction to issue a final judgment on the issue of costs and attorney fees.” BRPA and FWP filed a motion for entry of a proposed judgment, and Landowners and Marnell filed objections to the proposed judgment, requesting a narrower judgment which would exempt certain portions of the Mitchell Slough from operation of the 310 Law and the SAL, and objecting to any suggestion of a fee award. In its response, BRPA stated that “[a]rgument on the [attorney fee] issue at this juncture is premature. At the scheduled time, BRPA will demonstrate the ample authority existing for seeking fees.”

¶ 14 On July 20, 2009, the District Court filed the judgment incorporating our holdings in BRPA II. The judgment stated that the court “reserves jurisdiction to determine whether Plaintiffs are entitled to costs and attorney's fees which shall be determined separately.” That same day the court filed an order scheduling a hearing on attorney fees, noting that the court “has entered judgment on the merits and now turns to the dispute over costs and fees.” FWP filed a notice of entry of judgment on July 21, 2009. On August 6, 2009, BRPA filed a petition for fees under the private attorney general doctrine and the UDJA. After hearing, the District Court issued an order on November 27, 2009, granting fees from Landowners and Marnell, but denying fees against the BCD. After further hearing, the court issued an order on reasonableness of the fees in March 2010.

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