Clark Fork Coalition v. Montana Wel , 384 Mont. 503 ( 2016 )

09/13/2016
DA 14-0813
Case Number: DA 14-0813
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 229
THE CLARK FORK COALITION, a non-profit
organization KATRIN CHANDLER, an individual,
BETTY J. LANNEN, an individual, POLLY REX, an
individual, and JOSEPH MILLER, an individual,
Petitioners and Appellees,
v.
JOHN E. TUBBS, in his capacity as Director of
the Montana Department of Natural Resources
and Conservation and THE MONTANA
DEPARTMENT OF NATURAL RESOURCES AND
CONSERVATION, an executive branch agency
of the State of Montana,
Respondents,
v.
MONTANA WELL DRILLERS ASSOCIATION,
Intervenors and Appellants,
v.
MONTANA ASSOCIATION OF REALTORS and
MONTANA BUILDING INDUSTRY ASSOCIATION,
Intervenors and Appellants,
v.
MOUNTAIN WATER COMPANY,
Intervenor.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDV 2010-874
Honorable Jeffrey M. Sherlock, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Abigail J. St. Lawrence (Argued), Bloomquist Law Firm,
Helena, Montana
(Attorney for MAR and MBIA)
Ryan K. Mattick (Argued), Moore, O’Connell & Refling, P.C.,
Bozeman, Montana
(Attorney for Montana Well Drillers Association)
For Appellees:
Laura King (Argued), Matthew K. Bishop, Western Environmental
Law Center, Helena, Montana
(Attorneys for the Clark Fork Coalition)
Stephen R. Brown (Argued), J. Andrew Person, Garlington, Lohn
& Robinson, PLLP, Missoula, Montana
(Attorneys for Mountain Water Company)
For Amicus Curiae:
Tara DePuy, Attorney at Law, PLLC, Livingston, Montana
(Attorney for Montana Associate of Counties)
Steven J. Fitzpatrick, Browning, Kaleczyc, Berry & Hoven, PC,
Great Falls, Montana
Jesse J. Richardson, Jr., Attorney at Law, Morgantown, West Virginia
(Attorneys for Water Systems Council)
Jack R. Tuholske, Attorney at Law, Missoula, Montana
(Attorney for Bitterrooters for Planning, et al.)
Thomas J. Jodoin, City Attorney, Helena, Montana
Chris D. Tweeten, Tweeten Law, P.L.L.C., Missoula, Montana
(Attorneys for Montana League of Cities and Towns)
Laura S. Ziemer, Patrick Byorth, Meg Casey, Stan Bradshaw, Montana
Trout Unlimited, Bozeman, Montana
Argued and Submitted: May 18, 2016
Decided: September 13 2016
Filed:
__________________________________________
Clerk
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Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 The Water Use Act provides a comprehensive permit based system for new
appropriations of water in Montana. The Act permits certain groundwater appropriations
to be exempt from the permitting process. Relevant here, § 85-2-306(3)(a)(iii), MCA,
provides an exemption when a groundwater appropriation does not exceed 35 gallons per
minute and 10 acre-feet per year. However, the subsection also provides an
“except[ion]” to the exemption when a “combined appropriation” from the same source
by two or more wells or developed springs exceeds 10 acre-feet per year, regardless of
flow rate.
¶2 The term “combined appropriation” is not defined within the Water Use Act.
Since the adoption of § 85-2-306(3)(a)(iii), MCA, the state agency charged with
administering the Act, the Department of Natural Resources and Conservation (DNRC),
has taken contradictory positions regarding the meaning of the term. Specifically, within
a period of six years, the DNRC promulgated consecutive rules with conflicting
interpretations as to whether groundwater developments must be physically connected to
constitute a “combined appropriation.” Initially, in 1987, three months after the
Legislature adopted the “combined appropriation” language, the DNRC promulgated
Admin. R. M. 36.12.101(7) (1987), which provided that “[g]roundwater developments
need not be physically connected nor have a common distribution system to be
considered a ‘combined appropriation.’” However, in 1993, the DNRC reversed its
position and adopted the current administrative rule, Admin. R. M. 36.12.101(13), which
3
states that the term “combined appropriation” means “groundwater developments, that
are physically manifold into the same system.”
¶3 After an adverse ruling from the DNRC Hearings Examiner, a group of senior
water users—Katrin Chandler, Betty Lannen, Polly Rex, Joseph Miller, and the Clark
Fork Coalition (collectively, the Coalition)—challenged the validity of Admin. R. M.
36.12.101(13) in the First Judicial District Court, Lewis and Clark County. The Coalition
maintained that the DNRC’s definition of “combined appropriation” was inconsistent
with the applicable statute arguing that the statute does not require physical connection.
The District Court agreed. The court invalidated Admin. R. M. 36.12.101(13), reinstated
Admin. R. M. 36.12.101(7) (1987), and directed the DNRC to formulate a new
administrative rule consistent with the court’s order. The Montana Well Drillers
Association, the Montana Association of Realtors, and the Montana Building Industry
Association (collectively, the Well Drillers) appeal from that order.1 We affirm.
¶4 We address the following issues on appeal:
1. Whether the District Court erred by invalidating Admin. R. M. 36.12.101(13).
2. Whether the District Court erred by reinstating Admin. R. M. 36.12.101(7)
(1987).
3. Whether the District Court erred by directing the DNRC to institute rulemaking
consistent with the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 In 1973, the Montana Legislature instituted the current water rights system by
adopting the Montana Water Use Act, § 85-1-101, MCA, et seq. The Act sets forth the
1
The DNRC has chosen not to appeal the District Court’s decision.
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statutory framework under which water rights are obtained, administered, and
adjudicated. A critical component of the Act is the permit system administered by the
DNRC. With certain exceptions, the Act requires those seeking new appropriations of
water to apply to the DNRC for a permit. Section 85-2-301, MCA. The primary function
of this permit based system is the protection of senior water rights from encroachment by
prospective junior appropriators adversely affecting those rights. Section 85-2-101(4),
MCA.
¶6 Consistent with this purpose, the Act imposes both substantive and procedural
protections for water right users. Substantively, before the issuance of a new water
appropriation, the Act requires that a prospective junior appropriator show that water is
legally and physically available, the proposed use of water is for a beneficial use, and the
new appropriation will not adversely affect existing water rights of senior prior
appropriators. Section 85-2-311(1)-(2), MCA. Procedurally, a prospective junior
appropriator must provide notice, through the DNRC, to senior users who may be
affected by the proposed appropriation and must permit senior users an opportunity to
object to the prospective water right. Section 85-2-307, MCA. If objections do arise
from senior users, the DNRC must hold a contested hearing on the objections. Section
85-2-309, MCA.
¶7 Senior users are afforded even more protection in highly appropriated basins in
Montana that have been closed from further surface water appropriations. In these
“closed basins,” where water claims often exceed water availability, the DNRC may not
issue new surface water permits. Section 85-2-360(1)-(3), MCA. The DNRC may
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consider groundwater permits, but the process for obtaining a groundwater permit in a
closed basin is demanding. In addition to the general requirements for obtaining a
permit, the appropriator must commission a hydrogeological report to determine if the
proposed appropriation could result in a net depletion of surface water. Section
85-2-360(2), MCA. If the report indicates a hydrogeological connection, then the
appropriator must show that there will be no net depletion of water. Section
85-2-360(3)(b), MCA.
¶8 The Act provides certain exemptions to the rigorous permitting process. Section
85-2-306(1)-(9), MCA. If an appropriation qualifies for an exemption, none of the
permitting procedures under the Act constrain the proposed appropriation. See generally
§ 85-2-306 (1)-(9), MCA. A prospective appropriator need not show that water is legally
and physically available; that the new appropriation will not deplete surface flow; or that
the water will not be used inconsistently with senior rights. See generally
§ 85-2-306(1)-(9), MCA. Nor does the appropriator need to provide notice to senior
users or allow senior users an opportunity to object. See generally § 85-2-306 (1)-(9),
MCA. Similarly, the more onerous requirements for obtaining an appropriation in a
closed basin are inapplicable. See generally § 85-2-306 (1)-(9), MCA.
¶9 Relevant to this case, § 85-2-306(3)(a)(iii), MCA, provides an exemption for
groundwater appropriations considered de minimis; that is, those appropriations that do
not exceed 35 gallons a minute and 10 acre-feet per year. In 1987, the Legislature
incorporated the term “combined appropriation” into the de minimis groundwater
exemption. Section 85-2-306(3)(a)(iii), MCA (1987), provided:
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a permit is not required before appropriating groundwater by means of a
well or developed spring with a maximum appropriation of less than 100
gallons per minute, except that a combined appropriation from the same
source by two or more wells or developed springs exceeding this limitation
requires a permit.
Shortly after the incorporation of the “combined appropriation” language into the statute,
the DNRC promulgated Admin. R. M. 36.12.101(7) (1987) (hereinafter, the 1987 rule).
The 1987 rule provided that wells or developed springs “need not be physically
connected nor have a common distribution system to be considered a ‘combined
appropriation.’” Instead, the 1987 rule instructed that two or more groundwater
developments constitute a “combined appropriation” if used together for a single “project
or development.”
¶10 In 1991, the Legislature amended the statute. The Legislature reduced the
permissible flow rate and imposed a volume limitation on the exemption, but retained the
term “combined appropriation.” Section 85-2-306(3)(a)(iii), MCA, as amended in 1991,
provides:
a permit is not required before appropriating ground water by means of a
well or developed spring with a maximum appropriation of 35 gallons a
minute or less, not to exceed 10 acre-feet a year, except that a combined
appropriation from the same source from two or more wells or developed
springs exceeding this limitation requires a permit.
¶11 In 1993, the DNRC promulgated Admin. R. M. 36.12.101(13) (hereinafter, the
1993 rule), significantly altering the administrative definition of the term “combined
appropriation.” The 1993 rule defines “combined appropriation” as “two or more
groundwater developments, that are physically manifold into the same system.” Under
the 1993 rule, appropriations from the same source are exempt from the permitting
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process as long as the groundwater developments making up the appropriations remain
physically unconnected and do not exceed 10 acre-feet per year. Thus, the current rule
allows an appropriator to avoid the permitting process for an infinite number of
appropriations from the same source—with each appropriation consuming up to 10 acre-
feet per year—so long as the appropriator does not physically connect the groundwater
developments.
¶12 In 2013, the Legislature again amended the statute. The Legislature further
reduced the permissible flow in stream depletion zones, left the permissible flow rate
unaltered outside stream depletion zones, and once again retained the term “combined
appropriation.” Section 85-2-306(3)(a)(iii), MCA, as amended in 2013, provides, in
relevant part:
a permit is not required before appropriating ground water by means of a
well or developed spring:
. . .
(iii) when the appropriation is outside a stream depletion zone, is 35 gallons
a minute or less, and does not exceed 10 acre-feet a year, except that a
combined appropriation from the same source by two or more wells or
developed springs exceeding 10 acre-feet, regardless of the flow rate,
requires a permit; or
(iv) when the appropriation is within a stream depletion zone, is 20 gallons
a minute or less, and does not exceed 2 acre-feet a year, except that a
combined appropriation from the same source by two or more wells or
developed springs exceeding this limitation requires a permit.
¶13 The Coalition cites data compiled by the DNRC that, since the DNRC’s
promulgation of the 1993 rule, exempt appropriations under § 85-2-306(3)(a)(iii), MCA,
have grown steadily by approximately 3,000 each year. The DNRC estimates that there
are now 113,000 exempt appropriations in Montana, consuming significant amounts of
8
water. The DNRC anticipates that exempt appropriations will continue to grow rapidly.
By the year 2020, the DNRC projects that there could be an additional 78,000 exempt
appropriations in Montana. Closed basins have not been immune from this trend. The
DNRC estimates that 30,000 new exempt appropriations will be added in the next two
decades in closed basins alone, resulting in an additional 20,000 acre-feet per year of
water consumed in these already over-appropriated basins. The DNRC has recently
acknowledged the concerns of senior users that the cumulative effects of these exempt
appropriations are having a significant impact in terms of reducing groundwater levels
and surface water flows and that the cumulative impact of the appropriations may be
harming senior water users’ existing rights.
¶14 On November 30, 2009, the Coalition petitioned the DNRC for a declaratory
ruling that the 1993 rule was inconsistent with the exemption under § 85-2-306(3)(a)(iii),
MCA, asserting that the term “combined appropriation” as used in the statute does not
require physical connectivity between ground water developments. In the petition, the
Coalition requested that the court invalidate the 1993 rule, reinstate the 1987 rule, and
order the DNRC to conduct further rule making.
¶15 On August 17, 2010, the DNRC Hearings Examiner denied the Coalition’s
petition. The examiner concluded that the administrative rule was not in conflict with
§ 85-2-306(3)(a)(iii), MCA, reasoning that “a common, perhaps the most common
definition, of ‘combined’ is physically joined together.” The examiner acknowledged,
however, that the administrative rule had caused the proliferation of exempt
appropriations in a way that was not anticipated by the Legislature. As a result, the
9
examiner ordered the DNRC to initiate proposed rulemaking to repeal the 1993 rule and
adopt a new administrative rule that would align more closely with legislative intent. The
DNRC thereafter attempted to repeal and replace the 1993 rule, but, for reasons not made
entirely clear by the record, failed to do so.
¶16 On September 14, 2010, the Coalition filed a complaint in District Court,
challenging the DNRC Hearings Examiner’s denial of its petition. The court invalidated
the 1993 rule, reinstated the 1987 rule, and directed the DNRC to formulate a new
administrative rule consistent with the court’s order. The court provided three reasons for
its decision to invalidate the administrative rule. First, after examining the 1987
legislative debate surrounding the incorporation of the term “combined appropriation”
into the statute, the court explained that clearly, “the legislature was under the impression
that the reference to ‘combined’ did not require two wells to be physically connected.”
Second, the court noted that the DNRC promulgated the 1987 rule, which did not require
physical connection, immediately after the incorporation of the term into the statute.
Lastly, the court explained that the 1993 rule fails to protect senior water users in
accordance with the Act’s express purpose. The court explained through the use of a
hypothetical that the administrative rule allows large consumptive water uses to be
established, without going through the permitting process, at the expense of senior users:
The current definition of “combined appropriation” allows 1,000 new wells
as part of a 1,000 lot subdivision to escape review under DNRC permitting
. . . [and] allow[s] up to 10,000 acre feet a year of water to be potentially
diverted from senior water rights holders neighboring or near the new 1,000
lot subdivision without any review.
¶17 The Well Drillers timely appealed from the District Court’s decision.
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STANDARD OF REVIEW
¶18 “The interpretation of a statute is a question of law that we review for
correctness.” Mont. Dep’t of Revenue v. Priceline.com, Inc., 2015 MT 241, ¶ 6, 380
Mont. 352, 354 P.3d 631. “Whether an administrative regulation impermissibly conflicts
with a statute is a question of law to be decided by the court.” Gold Creek Cellular of
Mont. L.P. v. State, 2013 MT 273, ¶ 9, 372 Mont. 71, 310 P.3d 533. “We review a
district court’s conclusions of law to determine if they are correct.” Gold Creek Cellular,
¶ 9.
DISCUSSION
¶19 1. Whether the District Court erred by invalidating Admin. R. M. 36.12.101(13).
¶20 When we assess the validity of an agency rule, we must begin with an examination
of the statute itself. Our objective in interpreting a statute is to implement the objectives
the Legislature sought to achieve. Montana Wildlife Fed’n v. Sager, 190 Mont. 247, 264,
620 P.2d 1189, 1199 (1980). The legislative intent is to be ascertained, in the first
instance, from the plain meaning of the words used. Boegli v. Glacier Mountain Cheese
Co., 238 Mont. 426, 429, 777 P.2d 1303, 1305 (1989). If the intent of the Legislature can
be determined from the plain meaning of the words used in the statute, the plain meaning
controls and the Court need go no further nor apply any other means of interpretation.
Phelps v. Hillhaven Corp., 231 Mont. 245, 251, 752 P.2d 737, 741 (1988). In
determining the statutory mandate given to a statute by the Legislature, it is important to
remember that our role “is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted or to omit what has been
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inserted.” Section 1-2-101, MCA. Words and phrases used in a statute are to be
construed according to the context in which they are found, and according to their normal
usage, unless they have acquired some peculiar or technical meaning. Section 1-2-106,
MCA. “When the legislature has not defined a statutory term, we consider the term to
have its plain and ordinary meaning.” Giacomelli v. Scottsdale Ins. Co., 2009 MT 418,
¶ 18, 354 Mont. 15, 221 P.3d 666. For the same reason that a contract term is not
rendered ambiguous merely because the parties disagree as to its meaning, a statutory
term is not rendered ambiguous because of subsequent inconsistent rules implemented by
the agency. See, e.g., Scottsdale Ins. Co., ¶ 32; Dollar Plus Stores, Inc. v. R-Montana
Assoc., L.P., 2009 MT 164, ¶ 17, 350 Mont. 476, 209 P.3d 216; Heggem v. Capitol
Indem. Corp., 2007 MT 74, ¶ 42, 336 Mont. 429, 154 P.3d 1189.
¶21 Section 85-2-306(3)(a)(iii), MCA, is one amongst several statutory exemptions to
the water permit process and provides:
When the appropriation is outside a stream depletion zone, is 35 gallons a
minute or less, and does not exceed 10 acre-feet a year, except that a
combined appropriation from the same source by two or more wells or
developed springs exceeding 10 acre-feet, regardless of flow rate, requires a
permit;
¶22 The statute thus allows an exemption from the permitting process and provides for
a lawful appropriation when the amount of appropriation does not exceed 35 gallons per
minute and 10 acre-feet per year. However, even if this criterion is satisfied, a combined
appropriation from the same source of two or more wells or developed springs is
“except[ed]” from the exemption if the combined appropriation exceeds 10 acre-feet per
year, regardless of flow rate. The exception applies when (1) there are two or more wells
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or developed springs, (2) that are from the same source, (3) where the combined
appropriation exceeds 10 acre-feet per year. The exception removes any consideration of
flow rate, but adds volume considerations when appropriations are from the same source,
thus expressing the Legislature’s intent to limit the impact of the appropriation that would
occur on any particular source of water to less than 10 acre-feet per year.
¶23 To “appropriate” means to “divert, impound, or withdraw . . . a quantity of water
for a beneficial use . . . .” Section 85-2-102(1), MCA (emphasis added). An
appropriation refers to the amount of water one has the legal right to use as determined
through the process sanctioned by the Act. “Combined” means “to bring into such close
relationship as to obscure individual characters,” to “merge,” “intermix,” “blend,” or
“unite into a single number or expression.” Webster’s Collegiate Dictionary 228 (10th
ed. 1993). In § 85-2-306 (3)(a)(iii), MCA, “combined” is used as an adjective to modify
the noun “appropriation” and therefore refers to the combined quantity of water which an
appropriator has the legal right to use. The word “combined” does not precede “wells” or
“developed springs” and therefore does not modify either form of ground development in
a manner which would indicate a “combined well” or “combined developed spring,” as
Well Drillers contend. “In ascertaining plain meaning, we have ‘long adhered to ordinary
rules of grammar.’” Bates v. Neva, 2014 MT 336, ¶ 15, 377 Mont. 350, 339 P.3d 1265
(quoting Thompson v. J.C. Billion, Inc., 2013 MT 20, ¶ 22 n. 5, 368 Mont. 299, 294 P.3d
397). See also Jay v. Sch. Dist. No. 1 of Cascade Cnty., 24 Mont. 219, 225, 61 P. 250,
252 (1900)). Consistent with these common sense meanings and statutory definitions,
§ 85-2-306(3)(a)(iii), MCA, provides that a “combined appropriation” may not exceed
13
the combined quantity of 10 acre-feet per year, when there is more than one well or
developed spring. Indeed, the very statutory definitions of “well,” defined in
§ 85-2-102(31), MCA, as “an artificial opening or excavation in the ground . . .,” and
“developed spring,” defined in § 85-2-102(11), MCA, as “any point where ground water
emerges naturally, that has subsequently been physically altered, and from which ground
water flows under natural pressures or is artificially withdrawn,” suggest two or more
distinct and unconnected things. We accordingly reject the Well Drillers’ interpretation
that “combined” modifies wells or developed springs; combined modifies appropriation,
which speaks specifically to the quantity of water which may be withdrawn for a
beneficial use.
¶24 Based upon the plain language of the statute, it is evident that the intent of the
Legislature in enacting subsection (3)(a)(iii) was to ensure that, when appropriating from
the same source, only a de minimus quantity of water, determined by the Legislature to
be 10 acre-feet per year, could be lawfully appropriated without going through the rigors
of the permitting process. An exception to the exemption for quantities exceeding 10
acre feet per year, regardless of flow rate and number of wells or developed springs
utilized for the appropriation, protects other water rights utilizing the same water source.
This is consistent with the purpose of the Act as a remedial statute designed to strictly
adhere to the prior appropriation doctrine and to provide for the “administration, control,
and regulation of water rights . . . and confirm all existing water rights . . . .” Section
85-2-101(2)(4), MCA. We have explained that “the Water Use Act was designed to
protect senior water rights holders from encroachment by junior appropriators adversely
14
affecting those senior rights.” Mont. Power Co. v. Carey, 211 Mont. 91, 98, 685 P.2d
336, 340 (1984). This fundamental purpose is reflected throughout the Act and many of
the subsections of the Act begin with a policy declaration stating that the protection of
senior water rights and the prior appropriation doctrine is the Act’s core purpose. See,
e.g., § 85-1-101(4), MCA (the Act’s purpose is to “protect existing uses”); § 85-2-101(4),
MCA (it is “a purpose of this chapter to recognize and confirm all existing rights”);
§ 85-2-101(4), MCA (the purpose of permitting is to “provide enforceable legal
protection for existing rights”). Accordingly, based upon the plain language of the statute
and the stated purpose of the Act, we conclude that “combined appropriation” refers to
the total amount or maximum quantity of water that may be appropriated without a
permit and not to the manner in which wells or developed springs may be physically
connected.
¶25 Although we have interpreted the plain language of § 85-2-306(3)(a)(iii), MCA,
what remains to be addressed is the validity of the 1993 rule in light of the statute’s plain
meaning. When adopting a rule, the agency must comply with the requisites for rule
validity codified in § 2-4-305(6), MCA, of the Montana Administrative Procedure Act.
This section provides that “[w]henever by . . . statute a state agency has authority to adopt
rules[,] . . . a rule is not valid or effective unless it is: (a) consistent and not in conflict
with the statute; and (b) reasonably necessary to effectuate the purpose of the statute.”
Section 2-4-305(6), MCA. In interpreting the statute, we have stated:
The courts have uniformly held that administrative regulations are “out of
harmony” with legislative guidelines if they (1) “engraft additional and
contradictory requirements on the statute” (citations omitted); or (2) if they
15
engraft additional, noncontradictory requirements on the statute which were
not envisioned by the legislature. (citations omitted in original.)
Board of Barbers v. Big Sky College, 192 Mont. 159, 161, 626 P.2d 1269, 1270 (1981)
(citation omitted). We have also held that “[r]ules adopted by administrative agencies
which conflict with statutory requirements or exceed authority provided by statute, are
invalid.” Haney v. Mahoney, 2001 MT 201, ¶ 6, 306 Mont. 288, 32 P.3d 1254 (internal
quotations omitted). See also State ex rel. Swart v. Casne, 172 Mont. 302, 564 P.2d 983
(1977) (holding agency rules void because a statute cannot be changed by administrative
regulations), overruled on other grounds, Trs. of Ind. Univ. v. Buxbaum, 2003 MT 97, 315
Mont. 210, 69 P.3d 663. With these principles in mind, we must decide whether the 1993
rule defining the term “combined appropriation” is inconsistent with
§ 85-2-306(3)(a)(iii), MCA.
¶26 The 1993 rule defined “combined appropriation” as requiring that “the ground
water developments” be “physically manifold into the same system.”2 First, there is no
language anywhere in the Act which suggests that wells or developed springs must be
physically manifold or connected in order to be deemed a “combined appropriation.” We
therefore conclude, without any difficulty, that the 1993 rule engrafted an additional
requirement on the statute and must be deemed invalid if: (1) it is contradictory or
inconsistent with the statute, or (2) adds a requirement not envisioned by the Legislature.
2
No public hearing on this rule change adding a physical connectivity requirement was held and
no public comments were received. The DNRC similarly did not provide a statement as to why
the change from the 1987 rule was necessary as the DNRC was required to do pursuant to
§ 2-4-305, MCA. The DNRC responded to an inquiry by the Administrative Rules Committee
that the 1987 definition of “combined appropriation” was “too ambiguous and therefore difficult
to administer.”
16
¶27 As the District Court correctly observed, the 1993 rule allows an unlimited
quantity of water to be appropriated from the same source as long as the ground water
developments are not physically manifold or connected. The 1993 rule, therefore,
unquestionably expands the exemption by limiting the number of appropriations which
must be excepted, rendering meaningless the underlying limit on volume or quantity of
10 acre-feet per year from the same source. That portion of § 85-2-306(3)(a)(iii), MCA,
allowing for an exemption—a well or developed spring appropriating no more than 35
gallons per minute and 10 acre-feet per year—has no qualifying language relating to the
same source. However, the exception to the exemption does; that is, regardless of flow
rate and the number of wells or developed springs no combined quantity of water may
exceed 10 acre-feet when it is from the same source. The 1993 rule directly contradicts
this plain language by adding a connectivity requirement to the wells or developed
springs, effectively swallowing up the underlying exception that the Legislature created.
¶28 We conclude that the 1993 rule was inconsistent with the plain language of
§ 85-2-306(3)(a)(iii), MCA, and that it engrafted an additional requirement on the exempt
well statute that wells or developed springs be “physically manifold into the same
system.” By narrowing the exception to only those wells or developed springs physically
connected, the 1993 rule expanded the narrow exemption to the permitting process
provided by § 85-2-306(3)(a)(iii), MCA, and was inconsistent with the stated statutory
purpose of the Act.
¶29 As a final matter, we think, in light of the several statutory amendments to
§ 85-2-306, MCA, it important to address a remaining argument of Well Drillers in
17
relation to the validity of the 1993 rule. Well Drillers argue that the Legislature
abrogated the former meaning of “combined appropriation” when it imposed a volume
limitation and lowered the flow rate in 1991 and added subsection (3)(a)(iv) to
§ 85-2-306, MCA, in 2013. Citing Grenz v. Mont. Dept. of Natural Res. & Conservation,
2011 MT 17, 359 Mont. 154, 248 P.3d 785, Well Drillers maintain that the 1993 rule
represents a long-standing rule that has withstood numerous amendments and that this
Court presumes the Legislature acts with knowledge of the prior construction of related
rules and to have adopted that construction when amending statutes.
¶30 Preliminarily, we note that throughout the amendments, the text of the relevant
clause of the statute has remained as originally enacted in 1987 continuing to its final
amendment in 2013. Further, Well Drillers acknowledge that the Legislature could not
have intended the term “combined appropriation” to denote physical connectivity when it
added the term into the 1987 statute given the legislative debate surrounding
incorporation of the term into the statute, that the statute did not contain a volume
limitation, and the DNRC’s immediate promulgation of the 1987 rule expressly stating
that physical connectivity was not required. As the relevant text of the statute has
remained unchanged, our conclusion that its plain language does not require physical
connectivity applies for each statutory amendment. This conclusion remains valid even
in light of the additional text and subsections to the statute made in 1993 and 2013.
Nonetheless, Well Drillers argue legislative intent and Grenz support their interpretation
that the statutory amendments incorporated the 1993 rule.
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¶31 The Well Drillers’ position ignores a common canon of statutory construction that
“[w]ords and provisions used in the original act or section are presumed to be used in the
same sense in the amendment.” 1A Norman J. Singer, Sutherland’s Statutes and
Statutory Construction, § 22:33 (6th ed. 2002). And, in accordance therewith, courts
“construe words in a new statute that are identical to words in a prior statute as having the
same meaning.” Bakersfield Energy Partners, LP v. Comm’r, 568 F.3d 767, 775 (9th
Cir. 2009). Pursuant to § 1-2-203, MCA, where “a part of a statute is amended, it is not
to be considered as having been repealed and reenacted in the amended form, but the
portions which are not altered are to be considered as having been the law from the time
when they were enacted.” Consistent with these principles, where a section of a statute
has been amended but certain words have been left unchanged, we must accord the
untouched provisions the meaning they had when they were originally incorporated into
the statute. See State ex rel. Montgomery Ward & Co. v. District Court, 115 Mont. 521,
527, 146 P.2d 1012, 1014 (1944) (explaining that where the Legislature amended the
statute but left in place the word “returned,” it cannot be explained by new matter added
years later, but rather must be interpreted as originally understood); Northern Pacific
Railway v. Dunham, 108 Mont. 338, 346, 90 P.2d 506, 510 (1939), (explaining that “[b]y
retaining the [particular] clause [in a statute] without any change, we must assume that
the legislature intended that the words should be given the same meaning as they had at
the time of the passage of [the original act].”
19
¶32 The parties do not dispute that when the term “combined appropriation” was first
utilized by the Legislature it did not have the meaning the Well Drillers attach to it.
Section 85-2-306(1), MCA (1987), provided:
a combined appropriation from the same source from two or more wells or
developed springs exceeding [100 gpm] requires a permit.
The 1991 amended statute, § 85-2-306(3)(a)(iii), MCA (1991), provided:
a combined appropriation from the same source by two or more wells or
developed springs exceeding [10 acre-feet] requires a permit.
Finally, the 2013 amended statute, § 85-2-306(3)(a)(iii), MCA (2013), provides:
(iii) when the appropriation is outside a stream depletion zone, is 35 gallons
a minute or less, and does not exceed 10 acre-feet a year, except that a
combined appropriation from the same source by two or more wells or
developed springs exceeding 10 acre-feet, regardless of the flow rate,
requires a permit; or
(iv) when the appropriation is within a stream depletion zone, is 20 gallons
a minute or less, and does not exceed 2 acre-feet a year, except that a
combined appropriation from the same source by two or more wells or
developed springs exceeding this limitation requires a permit.
¶33 The Legislature retains power to abrogate an existing statutory interpretation. See
Langemo v. Mont. Rail Link, Inc., 2001 MT 273, ¶ 24, 307 Mont. 293, 38 P.3d 782.
However, there is no indication that the Legislature intended to do so here. By leaving
the term “combined appropriation” untouched, its original meaning was preserved. If the
Legislature wished to abrogate that meaning, “it would have employed definite language
in doing so, rather than to adopt the circuitous method suggested [by the Well Drillers]
here.” Dunham, 108 Mont. at 346, 90 P.2d at 510. The term “combined appropriation”
utilized in the original 1987 statute has remained intact and unchanged in the subsequent
statutory amendments of 1991 and 2013. When the 1987 Legislature incorporated the
20
disputed language into the statute, the 1991 Legislature adopted the former Legislature’s
original meaning by leaving the language in place.
¶34 Finally, Grenz does not support the Well Drillers’ argument. In Grenz, we
adopted the agency’s interpretation of a statute and, in doing so, followed a well-known
canon of statutory construction that provides that when the Legislature amends a statute
we generally presume that it acts with knowledge of existing administrative rules
interpreting the statute and adopts the agency’s interpretation. Grenz, ¶ 41. Here,
however, when the Legislature substantively amended § 85-2-306, MCA, in 1991, the
then applicable administrative rule was the 1987 rule, which did not require physical
connection between groundwater developments. Thus, following the above-referenced
canon of construction used in Grenz—that the Legislature adopts an existing agency
interpretation when it amends a statute—counsels against the Well Drillers’ interpretation
of the statute, not in favor of it.
¶35 We reject Well Drillers’ argument that amendments to § 85-2-306, MCA,
incorporated the 1993 rule. Such an argument is inconsistent with the plain language of
the statute, the relevant portion of which has remained unchanged since 1987, and is
likewise an incorrect application of § 1-2-203, MCA, and Grenz. The 1993 rule is invalid
because it conflicts with the plain language of § 85-2-306, MCA, and because the
Legislature, as is its prerogative, has not abrogated the original meaning it placed on
“combined appropriation” since the legislature first incorporated the term in 1987.
21
¶36 2. Whether the District Court erred by reinstating Admin. R. M. 36.12.101(7)
(1987).
¶37 The Well Drillers argue that the District Court erred by reinstating the 1987 rule
after invaliding the 1993 rule, reasoning that the court lacked authority to reinstate the
former rule. The Coalition counters that the proper course for the District Court was to
reinstate the 1987 rule after invaliding the 1993 rule, reasoning that when an
administrative rule is invalidated the effect should be, by default, to reinstate the former
rule.
¶38 The issue of whether a former agency rule is reinstated by the invalidation of the
current rule is a question of first impression for this Court. Federal law provides
guidance on the subject. Under federal case law, the “effect of invalidating an agency
rule is to reinstate the rule previously in force.” Paulsen v. Daniels, 413 F.3d 999, 1008
(9th Cir. 2005). Although the federal Administrative Procedure Act does not expressly
state that the prior rule is reinstated, the “common rationale” for doing so is “that the
current rule being invalid from its inception, the prior regulation is reinstated until validly
rescinded or replaced.” Cumberland Med. Ctr. v. Sec’y of Health & Human Services,
781 F.2d 536, 538 (6th Cir. 1986).
¶39 We find this reasoning persuasive. Like the federal Administrative Procedure Act,
the Montana Administrative Procedure Act is silent in regard to the effect of the
invalidation of the current rule on the former administrative rule. It serves to reason,
however, that when a court invalidates the current rule, the effect is to return to the
previous status of the law, which necessarily means in most instances that the former rule
is reinstated.
22
¶40 We follow this same reasoning in the context of invalidated statutes. We have
explained that an invalidated statute “is in reality no law, but is wholly void, and in legal
contemplation is as inoperative as if it has never been passed.” State ex rel. Woodahl v.
District Court, 162 Mont. 283, 290, 511 P.2d 318, 322 (1973). The “natural effect of this
rule is that the invalidity of a statute leaves the law as it stood prior to the enactment of
the invalid statute.” Woodahl, 162 Mont. at 291, 511 P.2d at 322. Thus, under Montana
law, when an amended statute is invalidated the statute is left in the same position that it
was in before the amendment was introduced. In re O’Sullivan, 117 Mont. 295, 304, 158
P.2d 306, 310 (1945).
¶41 We see nothing in the Montana Administrative Procedure Act that would argue
against adopting the federal approach and the approach we utilize in the context of
invalidated statutes. Therefore, we now hold that where, as here, a court invalidates an
administrative rule that has been invalid since its inception, the default remedy is to
reinstate the former administrative rule. Accordingly, the District Court did not err by
reinstating the 1987 rule.
¶42 3. Whether the District Court erred by directing the DNRC to institute rulemaking
consistent with the court’s order.
¶43 The Well Drillers take issue with the portion of the District Court’s order requiring
that the DNRC conduct further rule making “consistent” with the court’s order. Well
Drillers argue that the court lacked authority to order that such rulemaking be
“consistent” with its order because, in doing so, the court was directing the outcome of
the rulemaking process.
23
¶44 We disagree with the Well Drillers that the District Court erred by requiring that
any further rulemaking be done consistent with the court’s order. The District Court is
vested with judicial authority as set forth in Article VII, Section I of the Montana
Constitution. That authority includes not only the power “to say what the law is,”
Marbury v. Madison, 5 U.S. 137, 177 (1803), but also the power “to make binding orders
or judgments.” State ex rel. Bennett v. Bonner, 123 Mont. 414, 425, 214 P.2d 747, 753
(1950). The court must have authority to “pronounce a judgment and carry it into effect
between persons and parties who bring a case before it for decision.” Shea v. N.-Butte
Mining Co., 55 Mont. 522, 537, 179 P. 499, 504 (1919).
¶45 Although, the District Court did not err by requiring that a rule promulgated by the
DNRC must be consistent with its order, it is the responsibility of the administrative
agency to “adopt rules necessary to implement and carry out the purposes of this
chapter.” Section 85-2-113(2), MCA. Such authority includes whether, in the judgment
of the DNRC, a rule other than the reinstated 1987 rule should be implemented.
Accordingly, we reverse and remand to the District Court for the limited purpose of
removing its mandate to the DNRC to initiate rulemaking. It is up to the DNRC to
determine whether initiating rulemaking to change the reinstated 1987 rule is appropriate.
¶46 For the reasons stated, the judgment of the District Court is affirmed, with the
exception of the requirement that the DNRC initiate rulemaking. The 1987 rule is
reinstated until further action implementing a new rule is initiated by the DNRC.
/S/ LAURIE McKINNON
24
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
Justice Jim Rice, dissenting.
¶47 Every judicial officer who has considered the subject statute has recognized the
ambiguity inherent in the Legislature’s employment of the term “combined
appropriation” in this context. Addressing the ambiguity, the District Court considered
legislative history, purposes of the iterations of the statute, water law commentaries, and
the administrative record. The DNRC Hearing Examiner did the same and upheld the
challenged administrative rule, concluding that “the most common definition [] of
‘combined’ is physically joined together. Therefore, the ‘physically manifold’
requirement under the administrative rule is not inconsistent or in conflict with the plain
language of the statute, and certainly not plainly and palpably inconsistent with the
statutory language.” These analyses turned to interpretational guides because “[w]hen
the legislative intent cannot be readily derived from the plain language, we review the
legislative history and abide by the intentions reflected therein.” Montanans for Justice
v. State, 2006 MT 277, ¶ 60, 334 Mont. 237, 146 P.3d 759 (emphasis added). Everyone
who has considered the statute—except the Court—has agreed: the subject statute is not
clear and legislative intent cannot be “readily derived.” However, the Court sweeps away
the messy business of considering and analyzing the legislative record and history,
25
preferring instead to employ the ipse dixit canon of statutory construction: the statute is
absolutely clear on its face because we say so.
¶48 Perhaps the reason for this is found in ¶ 13 of the Opinion. While this case is
about the validity of an administrative rule, the Court is alarmed about the policy
ramifications of the rule: that exempt appropriations “have grown steadily” and are
“consuming significant amounts of water”; that it is anticipated that “appropriations will
continue to grow rapidly”; that exempt appropriations will be added in “already
over-appropriated basins”; that there are concerns that the “cumulative effects of these
exempt appropriations are having a significant impact” on groundwater and surface flow
levels; and that these appropriations “may be harming senior water users’ existing
rights.” While it is always tempting to act decisively in response to a perceived policy
problem, and to legislate a solution, legislating is neither our duty nor our prerogative.
By deciding to solve the problem by simply declaring that the statute is unambiguous,
and thus avoid the trouble of considering the troublesome history, the Court is holding
that the DNRC inexplicably misinterpreted and misapplied a clear statute for the past 23
years, despite the fact the agency undertook rulemaking in 1993 for the very purpose of
more accurately applying the statute and removing ambiguity in the former rule. Nobody
has argued or even hinted at such a proposition, because nobody believes it.
¶49 The Well Drillers argue that “combined appropriation” plainly denotes a “physical
connection” between two or more groundwater developments. The Coalition counters
that “combined appropriation” clearly refers to groundwater developments that are used
together for a “single beneficial use.” The statute simply does not explain what level of
26
commonality between two or more groundwater developments is required before water
withdrawn from the developments can fairly be said to be in “a state of unity”—as the
word “combined” is defined in The American Heritage Dictionary of the English
Language 368 (Joseph P. Pickett ed., 5th ed. 2011)—for purposes of the statute. The
term “combined appropriation” could reasonably be understood, as the Well Drillers
argue, to signify physical unity. Likewise, the term could reasonably be understood, as
the Coalition argues, to signify only unity of use.
¶50 Accepting the reality that the statute is ambiguous, I would decide the case by
employing the applicable canons of statutory construction. In the context of an
ambiguous statute that has been subject to a longstanding interpretation by administrative
rule, we apply the canon of deference to the agency’s interpretation. Mont. Trout
Unlimited v. Mont. Dep’t of Natural Res. & Conservation, 2006 MT 72, ¶ 37, 331 Mont.
483, 133 P.3d 224. “[I]t is a well-accepted rule of statutory construction that the long and
continued contemporaneous and practical interpretation of a statute by the executive
officers charged with its administration and enforcement constitutes an invaluable aid in
determining the meaning of a doubtful statute.” Mont. Power Co. v. Mont. PSC, 2001
MT 102, ¶ 24, 305 Mont. 260, 26 P.3d 91 (internal quotations omitted) (citing Bartels v.
Miles City, 145 Mont. 116, 122, 399 P.2d 768, 771 (1965)); accord Molnar v. Fox, 2013
MT 132, ¶ 27, 370 Mont. 238, 301 P.3d 824. When the interpretation has “stood
unchallenged for a considerable length of time,” it will be regarded as a “great
importance in arriving at the proper construction of a statute.” Mont. Power Co., ¶ 24
(emphasis added) (quoting Bartels, 145 Mont. at 122, 399 P.2d at 771); accord Mont.
27
Trout Unlimited, ¶ 37. Deference to the agency’s interpretation is a form of estoppel,
borne from the reliance by the “public and those having an interest in the interpretation of
the law.” Mont. Power Co., ¶ 24 (quoting Bartels, 145 Mont. at 122, 399 P.2d at 771);
accord D’Ewart v. Niebauer, 228 Mont. 335, 340, 742 P.2d 1015, 1018 (1987).
¶51 This canon of deference is to apply “where the particular meaning of a statute has
been placed in doubt, and where a particular meaning has been ascribed to a statute by an
agency through a long and continued course of consistent interpretation, resulting in an
identifiable reliance.” Mont. Power Co., ¶ 25 (emphasis added). The canon of deference
to an agency’s interpretation, rising to one of “great importance” when the interpretation
is longstanding, yields only upon “compelling indications” that the construction is wrong.
Mont. Power Co., ¶¶ 23–25.
¶52 Whether an agency’s interpretation of a statute is “longstanding” is not subject to a
bright line test, but this case does not present a close call. The 1993 administrative rule
has been the law for 23 years now, which is more than sufficient time to be considered “a
long and continued course of consistent interpretation.” Mont. Power Co., ¶ 25. For the
same reason that a one-year-old administrative rule is clearly not “longstanding,” Mont.
Trout Unlimited, ¶ 38, a two-decade-old administrative rule clearly is. Thus, unless there
are “compelling indications” that DNRC’s interpretation of the subject statute is wrong,
the Court should defer to DNRC’s interpretation of “combined appropriation.” Mont.
Power Co., ¶¶ 23, 25.
¶53 The genesis of this dispute is the agency’s 1993 rulemaking, which, as explained
by the Hearing Examiner, was undertaken to more concisely define the statutory term
28
“combined appropriation,” and to remove ambiguity from the previous rule that rendered
the statute “difficult to administer.” In the many years that followed, review of the 1993
rule was undertaken by legislative committees, but no objection was made and no action
was taken to alter the rule. This inaction corresponds to the purpose of the canon of
construction mentioned above: the Legislature can act at any time it believes a rule is
improper. Here, minor amendments were made to the statute over the years, but those
did not involve the use of the term “combined appropriation.” However, that changed in
2013, when the Legislature revisited the term.
¶54 Senate Bill 19, discussed below, and Senate Bill 346 were passed during the 2013
Legislative Session. Senate Bill 346 was entitled “An Act Generally Revising Water
Laws Related to Ground Water Appropriations Exempt From Permitting.” 2013 Mont.
Laws 1796. Prior to the passage of Senate Bill 346, the relevant portion of the statute
provided:
(3)(a)(i) Except as provided in subsection (3)(a)(ii), outside the boundaries
of a controlled ground water area, a permit is not required before
appropriating ground water by means of a well or developed spring:
(A) with a maximum appropriation of 35 gallons a minute or less, not to
exceed 10 acre-feet a year, except that a combined appropriation from the
same source from two or more wells or developed springs exceeding this
limitation requires a permit;
Section 85-2-306(3)(a)(i)(A), MCA (2011). Senate Bill 346 made the following
revisions to § 85-2-306, MCA, as indicated in the session law:1
1
Section 5-11-205(2), MCA, provides that new parts of existing statutes are to be printed in a
session law as italics, and deleted provisions are to be shown as stricken.
29
(3)(a)(i) Except as provided in subsection (3)(a)(ii), outside Outside the
boundaries of a controlled ground water area, a permit is not required
before appropriating ground water by means of a well or developed spring:
(A) with a maximum appropriation of 35 gallons a minute or less, not to
exceed 10 acre feet a year, except that a combined appropriation from the
same source from two or more wells or developed springs exceeding this
limitation requires a permit; or
(B)(i) when the appropriation is made by a local governmental fire
agency organized under Title 7, chapter 33, and the appropriation is
used only for emergency fire protection, which may include
enclosed storage.;
-
(ii) when a maximum appropriation of 350 gallons a minute or less
is used in nonconsumptive geothermal heating or cooling exchange
applications, all of the water extracted is returned without delay to
the same source aquifer, and the distance between the extraction
well and both the nearest existing well and the hydraulically
connected surface waters is more than twice the distance between
the extraction well and the injection well;
(iii) when the appropriation is outside a stream depletion zone, is 35
gallons a minute or less, and does not exceed 10 acre-feet a year,
except that a combined appropriation from the same source by two
or more wells or developed springs exceeding 10 acre-feet,
regardless of the flow rate, requires a permit; or
(iv) when the appropriation is within a stream depletion zone, is 20
gallons a minute or less, and does not exceed 2 acre-feet a year,
except that a combined appropriation from the same source by two
or more wells or developed springs exceeding this limitation
requires a permit.
(ii) Outside the boundaries of a controlled ground water area, a
permit it not required before appropriating ground water by means
of a well or developed spring with a maximum appropriation of 350
gallons a minute or less for use in nonconsumptive geothermal
heating or cooling exchange applications if all of the water extracted
is returned without delay to the same source aquifer and if the
distance between the extraction well and both the nearest existing
well and the hydraulically connected surface waters is more than
twice the distance between the extraction well and the injection well.
30
2013 Mont. Laws at 1799–800.
¶55 As part of its expressed intention to generally revise ground water appropriation
laws, the 2013 Legislature expanded the use and purpose of the term, “combined
appropriation.” Whereas the term was used only once in pre-2013 law, the term was
further employed in entirely new subsections that incorporated the concept of “stream
depletion zones.” As argued by the Well Drillers, “with the creation of § 85-2-
306(3)(a)(iv), MCA, in 2013 and the inclusion of ‘combined appropriation’ language, it
can very well be presumed that pursuant to Grenz [v. Mont. Dep’t of Natural Res. &
Conservation, 2011 MT 17, ¶ 41, 359 Mont. 154, 248 P.3d 785], the legislative intent
included the use of the 1993 Rule’s definition of the exempt well statute.” This is
correct: when the 2013 Legislature generally revised the statute, the applicable
administrative rule was the agency’s longstanding 1993 rule, which did not require
physical connection between groundwater developments. By then, the 1993 rule had
been in place for 20 years, and in accordance with the applicable canon of construction,
“a particular meaning [had] been ascribed to [the] statute by an agency through a long
and continued course of consistent interpretation, resulting in an identifiable reliance.”
Mont. Power Co., ¶ 25. Thus, the 2013 Legislature, proceeding upon that “identifiable
reliance,” affirmatively employed the longstanding, 20-year agency interpretation of the
statute.
¶56 The Court cites § 1-2-203, MCA, which provides that when a statute is amended,
“the portions which are not altered are to be considered as having been the law from the
time they were enacted, and the new provisions are to be considered as having been
31
enacted at the time of the amendment.” The Court concludes that the 2013 general
revision to the statute is an amendment that contains no “new” provisions. However, I
would conclude Senate Bill 346’s title, new language, and new structure demonstrate
that, more than a mere amendment, a general revision was intended and enacted that
incorporated the longstanding agency interpretation.
¶57 Canons of construction can be contradictory, and the particular canon that governs
the interpretation of a given statute depends on the context. See, e.g., State v. Liefert,
2002 MT 48, ¶ 26, 309 Mont. 19, 43 P.3d 329 (ambiguous criminal statutes to be
interpreted in favor of defendant); Eisenmenger v. Ethicon, Inc., 264 Mont. 393, 400, 871
P.2d 1313, 1317 (1994) (ambiguous statute of limitations to be interpreted to allow the
longer period in which to prosecute the action); Mont. Bankers Ass’n v. Mont. Dep’t of
Revenue, 177 Mont. 112, 117, 580 P.2d 909, 912 (1978) (ambiguous tax statutes granting
exemptions and deductions strictly construed against taxpayer); see also Chickasaw
Nation v. United States, 534 U.S. 84, 93–94, 122 S. Ct. 528, 535 (2001) (ambiguous
statutes construed in favor of Indian nations). Here, the longstanding agency
interpretation, followed by the confirming legislative history, shows that the canon of
deference should be applied.
¶58 Although not necessary to the proper conclusion, the passage of Senate Bill 19 by
the 2013 Legislature adds further impetus to accurately determining legislative intent.
I find it significant that a bill was passed by both houses contemporaneously with the
passage of Senate Bill 346, further defining the term at issue. The Court states the 2013
Legislature would have no reason to pass Senate Bill 19 if it had intended to adopt the
32
1993 rule within Senate Bill 346, because it would be redundant. However, the
Legislature often uses multiple bills in a single session to deal with any given issue, and
given that this litigation was pending, the 2013 Legislature’s double-knotting of the issue
makes perfect sense.
¶59 For the Court to insist that the 1991 Legislature’s meaning of the term “combined
appropriation” must be reinstated, regardless what occurred in the intervening years,
restricts the power of the Legislature to subsequently amend the term, and grants a
monopoly to the 1991 Legislature on this issue. This violates not only the canons of
construction, but separation of powers. Further, legislative bodies cannot bind future
legislative bodies in this way. Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. (16 How.)
416, 431, 14 L. Ed. 997, 1003 (1854) (“[N]o one legislature can, by its own act, disarm
their successors of any of the powers or rights of sovereignty confided by the people to
the legislative body, unless they are authorized to do so by the constitution under which
they are elected.”); Newton v. Comm’rs, 100 U.S. 548, 559, 25 L. Ed. 710, 711 (1879).
¶60 It is really not difficult to determine what the Legislature intends here, even if it is
difficult for the Court to accept. The DNRC’s two-decade-old administrative rule is a
longstanding interpretation of a statute that is of “great importance” and should be given
deference absent “compelling indications” that the interpretation is wrong. Because the
2013 Legislature clearly used the 1993 rule’s definition of “combined appropriation”
when it revised the statute in 2013, there are no compelling indications the 1993 rule is
wrong. Indeed, the 1993 rule has been affirmed by the Legislature. Under that rule,
many permits have been issued over the past 23 years. Given the ambiguity in the statute
33
and the DNRC’s longstanding interpretation, this Court generally defers to the agency.
I would do so, and reverse.
/S/ JIM RICE
34