Gateway Village v. DEQ, 2015 MT 285 (Sept. 29, 2015) (McGrath, C.J.) (5-0, aff’d & rev’d)
Issue: (1) Whether the district court erred in its ruling on Gateway Village’s trespass claim and in declining to address the district’s claim that it holds a prescriptive easement under Gateway Village’s land; and (2) whether the district court abused its discretion in denying Gateway Village’s claim for attorneys’ fees.
Short Answer: (1) Neither of these issues are ripe for adjudication in light of the district court’s remand to DEQ for preparation of an EIS; and (2) no.
Vacated (1), affirmed (2), and remanded
Facts: Montana DEQ granted Gallatin Gateway County Water & Sewer District a wastewater discharge permit allowing the District to discharge up to 50,000 gallons of treated domestic wastewater each day into an underground mixing zone underneath land owned by Gateway Village. DEQ prepared an EA, approved the proposed system, and issued the permit. Gateway Village filed suit for judicial review, and also alleged that the discharge constituted a trespass.
The district court determined that DEQ must prepare an EIS and remanded to the agency. None of the parties appeal that ruling.
Procedural Posture & Holding: DEQ and the District each moved for partial summary judgment on the trespass claim. The district court denied the motions and denied Gateway Village’s claim for attorneys’ fees. DEQ and the District appeal, and Gateway Village cross-appeals. The Court vacates the trespass ruling, affirms the attorneys’ fees ruling, and remands for further proceedings.
Reasoning: (1) The district court held that the use of Gateway Village’s property as a mixing zone would constitute a trespass, declining to address the District’s claim that it holds a prescriptive easement to the land under the Village’s property. Although the Supreme Court denied the Village’s earlier motion to dismiss this appeal based on the lack of a justiciable controversy, it now reaches a different conclusion. Based on the district court’s remand to DEQ for the preparation of an EIS, it is speculative whether the District will be entitled to a discharge permit, and if so, under what terms or conditions. Any determination of either trespass or a prescriptive easement prior to the issuance of the EIS would be premature and advisory. Because the district court should have reached the same conclusion after remanding to the agency, the Court vacates the district court’s decision on this issue.
(2) Gateway Village sought fees under the private attorney general doctrine, and the district court denied the motion after finding that only landowners in the Gateway area would benefit from the Village’s efforts. The Court agrees that down-gradient landowners are a relatively narrow class of persons, and holds the district court did not abuse its discretion.