03/08/2022
DA 21-0314 Case Number: DA 21-0314
IN THE SUPREME COURT OF THE STATE OF MONTANA 2022 MT 46
ADVOCATES FOR SCHOOL TRUST LANDS,
Plaintiff and Appellant,
and K.B. and K.B., by and through their parent and general guardian,
Plaintiffs,
v.
THE STATE OF MONTANA,
Defendant and Appellee,
and
MONTANA FARM BUREAU FEDERATION, MONTANA STOCKGROWERS ASSOCIATION, MONTANA WATER RESOURCES ASSOCIATION, ASSOCIATION OF GALLATIN AGRICULTURAL IRRIGATORS,
Intervenors and Appellees.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV-2019-1272 Honorable Michael F. McMahon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Roy H. Andes, Attorney at Law, Driggs, Idaho
For Appellee State of Montana:
Austin Knudsen, Montana Attorney General, Christian B. Corrigan, Assistant Solicitor General, Helena, Montana Rachel K. Meredith, Office of the Governor, Helena, Montana
Emily Jones, Special Assistant Attorney General, Jones Law Firm, PLLC, Billings, Montana
For Intervenors:
Hertha L. Lund, Christopher T. Scoones, Ben F. Stormes, Lund Law, PLLC, Bozeman, Montana
For Amicus Curiae Rural Montana Foundation:
William W. Mercer, Matthew H. Dolphay, Holland & Hart LLP, Billings, Montana
Submitted on Briefs: January 26, 2022
Decided: March 8, 2022
Filed: q3,,---, 6mal•-.— 4( __________________________________________ Clerk
2 Justice Beth Baker delivered the Opinion of the Court.
¶1 Appellant Advocates for School Trust Lands (Advocates) challenges the
constitutionality of House Bill 286 (HB 286), passed by the 2019 Montana Legislature and
codified as § 85-2-441, MCA. Advocates alleges that HB 286 violates the
Montana Constitution and the 1889 Enabling Act by creating a presumption against State
ownership in ground water diverted from private property for use on leased school trust
land, thereby reducing the value of those lands. We consider the following restated issues
and affirm.
1. Did the District Court err when it granted summary judgment to the State on the ground that Advocates’ challenge to HB 286 is unripe?
2. Did the District Court abuse its discretion when it denied Advocates’ motion to amend its complaint on the ground that adding an as-applied challenge would be futile?
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The Department of Natural Resources and Conservation (DNRC), through its
Trust Lands Management Division (TLMD), manages, among other things, state trust lands
for the State Board of Land Commissioners, which administers approximately five million
school trust land acres. In 2015, TLMD discovered that the State was not listed as an owner
on approximately 141 post-July 1, 1973 (post-1973) ground water rights developed or
diverted on private land but used on school trust lands. TLMD subsequently filed 141
Water Right Ownership Update Forms (Form 608)—forms typically used to update contact
information and to voluntarily transfer water rights—with the DNRC Water Rights Bureau
to add the State as co-owner on each water right. Though TLMD notified the affected
3 water rights owners of the change, these private water rights holders had no statutory
mechanism with which to object to TLMD’s Form 608 filings.
¶3 In response, the 2019 Legislature passed HB 286, codified as § 85-2-441, MCA, to
remedy potential due process concerns arising from TLMD’s and DNRC’s involuntary
transfers of private water rights using Form 608. HB 286 created a process by which the
State could acquire water rights in privately developed or diverted ground water used on
school trust lands. The bill also required the State to rescind any claim to such water rights
asserted prior to May 11, 2019—the law’s effective date—if it had not complied with the
new statutory process; presumably, this included the 141 water rights at issue in 2015.
¶4 Advocates is a non-profit organization working to ensure that the
Montana Constitution’s trust land commitment is honored. It is the successor in interest to
Montanans for Responsible Use of the School Trust (MonTRUST). In September 2019,
Advocates filed a complaint for declaratory relief and a permanent injunction against the
State, alleging in part that HB 286 is facially unconstitutional because it violates the State’s
trust obligations imposed by the Enabling Act and the Montana Constitution. Several
proponents of HB 286 joined as Intervenors, and Rural Montana Foundation participated
as Amicus Curiae for the State. In October 2020, Advocates sought to amend its complaint
to include an as-applied challenge to HB 286 and a request for attorney fees. The State
moved for summary judgment, and Advocates moved for partial summary judgment. On
April 12, 2021, the District Court denied Advocates’ motion to amend and granted
summary judgment to the State on the grounds that Advocates’ claim was unripe and its
proposed amendment was futile.
4 STANDARDS OF REVIEW
¶5 We review a district court’s grant of summary judgment de novo.
Confederated Salish & Kootenai Tribes v. Clinch, 2007 MT 63, ¶ 5, 336 Mont. 302,
158 P.3d 377 (citation omitted). “Issues of justiciability—such as standing, mootness,
ripeness, and political question—are questions of law that we also review de novo.”
Carbon Cty. Res. Council v. Mont. Bd. of Oil & Gas Conserv., 2016 MT 240, ¶ 9, 385 Mont.
51, 380 P.3d 798 (citation omitted).
¶6 We review a district court’s interpretation of a statute de novo. Clark Fork Coal. v.
Tubbs, 2016 MT 229, ¶ 18, 384 Mont. 503, 380 P.3d 771 (citation omitted).
¶7 We review a district court’s denial of a motion to amend a complaint for abuse of
discretion. Emanuel v. Great Falls Sch. Dist., 2009 MT 185, ¶ 18, 351 Mont. 56,
209 P.3d 244. But we review de novo whether the movant’s proposed amendment would
be futile. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016).
DISCUSSION
Enabling Act of 1889
¶8 Under the Enabling Act of February 22, 1889, the federal government granted to the
State of Montana lands “for the support of common schools.” Montanans for the Resp.
Use of the Sch. Tr. v. State ex rel. Bd. of Land Comm’rs, 1999 MT 263, ¶ 13, 296 Mont. 402,
989 P.2d 800 (hereinafter MonTRUST I) (citation omitted). As explained in MonTRUST
I, ¶ 13, this grant constituted a trust (Trust), the terms of which are set out in Article X,
Section 11, of the Montana Constitution:
5 (1) All lands of the state that have been or may be granted by [C]ongress . . . shall be public lands of the state. They shall be held in trust for the people, to be disposed of as hereafter provided, for the respective purposes for which they have been or may be granted, donated or devised.
(2) No such land or any estate or interest therein shall ever be disposed of except in pursuance of general laws providing for such disposition, or until the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, has been paid or safely secured to the state.
(3) No land which the state holds by grant from the United States which prescribes the manner of disposal and minimum price shall be disposed of except in the manner and for at least the price prescribed without the consent of the United States.
(4) All public land shall be classified by the board of land commissioners in a manner provided by law. Any public land may be exchanged for other land, public or private, which is equal in value and, as closely as possible, equal in area.
We have interpreted these provisions to mean that the State cannot lease an interest in
school trust lands if the lease would abrogate the concept of full market value.
MonTRUST I, ¶ 36 (citing Jerke v. State Dep’t of Lands, 182 Mont. 294, 296, 597 P.2d 49,
51 (1979) (citing Rider v. Cooney, 94 Mont. 295, 309-10, 23 P.2d 261, 264 (1933))). The
Legislature has the authority to determine the method by which full market value is
ascertained. Jerke, 182 Mont. at 296, 597 P.2d at 51.
¶9 In MonTRUST I, we determined that several statutes and DNRC policies involving
the leasing of school trust lands and resources were facially unconstitutional because they
violated the State’s obligation to obtain full market value for trust lands.
MonTRUST I, ¶¶ 23, 32, 42, 51, 58. Among the laws invalidated in MonTRUST I was a
statute that required the DNRC to charge 1972 market values for historic right-of-way
6 deeds; a DNRC policy of charging “significantly below fair market value” for cabin rentals;
a statute that authorized the State to issue firewood permits without charging for
commercially valuable wood; a statute that granted former lessees up to sixty days to
remove movable improvements without charge; and a statute that “allow[ed] trust lands to
idle indefinitely” between lessees. MonTRUST I, ¶¶ 23, 32, 42, 51, 58. The key inquiry
was whether “the State, in implementing the statute[s], violated its fiduciary duty to obtain
full market value.” Montanans for the Resp. Use of the Sch. Tr. v. Darkenwald,
2005 MT 190, ¶ 42, 328 Mont. 105, 119 P.3d 27 (citing MonTRUST I, ¶ 36).
Montana Water Use Act
¶10 “All surface, underground, flood, and atmospheric waters within the boundaries of
the state are the property of the state for the use of its people and are subject to appropriation
for the beneficial uses as provided by law.” Mont. Const. art. IX, § 3(3). “The legislature
shall provide for the administration, control, and regulation of water rights and shall
establish a system of centralized records, in addition to the present system of local records.”
Mont. Const. art. IX, § 3(4). Just as the 1889 Montana Constitution “explicitly recognized
the right to sell and rent water to others as a beneficial use,” our current Constitution
“shows a steadfast commitment to recognizing the ability to appropriate water for its
ultimate use by a third party.” Curry v. Pondera Cty. Canal & Reservoir Co., 2016 MT 77,
¶ 25, 383 Mont. 93, 370 P.3d 440 (citing Mont. Const. art. III, § 15 (1889)).
¶11 Prior to the enactment of the 1973 Montana Water Use Act (WUA),
§§ 85-1-101 et seq., MCA, a water appropriator could obtain a water right by one of two
methods: (1) intending to put the water to beneficial use and using the water as intended
7 (“use right”); or (2) complying with the statutory requirements of record notice
(“filed right”). Murray v. Tingley, 20 Mont. 260, 268, 50 P. 723, 725 (1897); see also
Hoon v. Murphy, 2020 MT 50, ¶¶ 34-35, 399 Mont. 110, 460 P.3d 849;
Mont. Power Co. v. Carey, 211 Mont. 91, 96-97, 685 P.2d 336, 339 (1984);
Stephen R. Brown, Michelle L. Bryan & Russ McElyea, Montana Water Law, 36
(Rocky Mt. Min. L. Fdn. 2021). As neither method provided the State of Montana any
means to regulate proposed water uses to accommodate available flows, protect senior
water rights, or protect the public interest, the WUA “substituted a new procedure for the
appropriation of water rights[.]” Carey, 211 Mont. at 97, 685 P.2d at 339-40 (citation and
quotation omitted).
¶12 The WUA “sets forth the statutory framework under which water rights are to be
obtained, administered, and adjudicated.” Tubbs, ¶ 5. The WUA requires new water
appropriators to apply to the DNRC for a permit. Tubbs, ¶ 5 (citing § 85-2-301, MCA).
Post-1973, “[a] right to appropriate water may not be acquired by any other method,”
except as provided by the WUA. Section 85-2-301(1), (3), MCA. Water rights perfected
prior to that date, by contrast, are not subject to the WUA’s permit requirements and are
protected under the law as it existed prior to the adoption of the WUA, subject to
adjudication in the Water Court. Section 85-2-102(13), MCA; Hoon, ¶¶ 33-34.
¶13 1. Whether the District Court erred when it granted summary judgment to the State on the ground that Advocates’ challenge to HB 286 is unripe.
¶14 HB 286 addresses the process by which the State may obtain ownership of water
rights for water developed or diverted on private land for use on school trust land.
8 Subsection (1) provides that a “water right owner may put water . . . on private land to
beneficial use on state trust land for the duration of the state land lease the water right
owner holds.” Section 85-2-441(1), MCA. Subsection (2) provides that the State may not
obtain ownership over such water rights unless “a court of competent jurisdiction
determines that the state is an owner of that particular water right” or “the state is in
possession of a deed transferring ownership of the water right to the state.”
Section 85-2-441(2), MCA.
¶15 Advocates argues that HB 286 is facially unconstitutional because it violates the
State’s trust obligations under the Enabling Act and the Montana Constitution by
relinquishing State ownership of water rights on school trust lands, contrary to our holding
in Mont. Dep’t of State Lands v. Pettibone, 216 Mont. 361, 702 P.2d 948 (1985).
¶16 We held in Pettibone that the State owns water rights developed and put to beneficial
use on school trust lands. 216 Mont. at 368, 702 P.2d at 952. At issue were twenty-three
pre-1973 water rights on school trust lands to which the lessees of those lands claimed
ownership. Pettibone, 216 Mont. at 364-66, 702 P.2d at 950-51. We identified two
relevant implications stemming from the State’s trust obligations under the Enabling
Act: “[f]irst, an interest in school land cannot be alienated unless the trust receives adequate
compensation for that interest”; and “[s]econd, any law or policy that infringes on the
state’s managerial prerogatives over the school lands cannot be tolerated if it reduces the
value of the land.” Pettibone, 216 Mont. at 371, 702 P.2d at 954. Advocates contends that
HB 286 reduces the value of the affected school trust lands because it plainly asserts that
“[t]he state may not obtain an ownership interest in a water right . . . located on private land
9 exclusively based on trustee obligations,” except through adjudication or a voluntary
transfer of ownership. See § 85-2-441(2), MCA.
¶17 The District Court held that Advocates’ facial challenge to § 85-2-441, MCA, was
unripe because “nothing in HB 286’s plain language . . . impairs Montana’s sovereign
trustee duties or trust land ‘management prerogatives’ to ensure that trust lands are not
devalued by any policy or law.” (Quoting MonTRUST I, ¶ 36.) The court found an
“inadequate factual record upon which to base effective review” of the substance of the
claim. (Citing Reichert v. State, 2012 MT 111, ¶ 56, 365 Mont. 92, 278 P.3d 455.)
¶18 The Montana Constitution grants state courts original jurisdiction over “all civil
matters and cases at law and in equity.” Mont. Const. art. VII, § 4(1). We have stated that
the “cases at law and in equity” language “embodies the same limitations as are imposed
on federal courts by the ‘case or controversy’ language of Article III.” Plan Helena, Inc.
v. Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶ 6, 355 Mont. 142, 226 P.3d 567 (citations
omitted). It is well settled that “[t]he judicial power of the courts of Montana is limited to
justiciable controversies.” Greater Missoula Area Fed’n of Early Childhood Educators v.
Child Start, Inc., 2009 MT 362, ¶ 22, 353 Mont. 201, 219 P.3d 881 (citations omitted);
Dennis v. Brown, 2005 MT 85, ¶ 8, 326 Mont. 422, 110 P.3d 17 (citation omitted);
Powder River Cty. v. State, 2002 MT 259, ¶ 101, 312 Mont. 198, 60 P.3d 357 (citation
omitted). Justiciability therefore is a threshold requirement that must be met before a court
may grant relief. See Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶¶ 17-19,
293 Mont. 188, 974 P.2d 1150.
10 ¶19 “The central concepts of justiciability have been elaborated into more specific
categories of doctrines,” including standing, ripeness, and mootness. Kulko v. Davail, Inc.,
2015 MT 340, ¶ 19, 381 Mont. 511, 363 P.3d 430 (citation omitted). “In analyzing
ripeness, it is helpful to understand its relationship to standing and mootness.”
Reichert, ¶ 55. Standing requires the plaintiff to “clearly allege a past, present, or
threatened injury to a property or civil right, and the injury must be one that would be
alleviated by successfully maintaining the action.” Reichert, ¶ 55 (citation omitted).
“Ripeness and mootness, in turn, can be seen as ‘the time dimensions of standing.’”
Reichert, ¶ 55 (quoting Charles Alan Wright et al., Federal Practice and Procedure
vol. 13B, § 3531.12, 163 (3d ed., Thomson/West 2008)). The central concern of ripeness
is “whether an injury that has not yet happened is sufficiently likely to happen or, instead,
is too contingent or remote to support present adjudication.” Reichert, ¶ 55.
¶20 “A case is considered ripe when it presents an ‘actual, present’ controversy that is
not a hypothetical or speculative dispute.” Carina Wilmot, Reichert v. State ex rel.
McCulloch and the Open Door for Increased Pre-Election Substantive Judicial Review,
74 Mont. L. Rev. 441, 444 (2014) (quoting Mont. Power Co. v. Mont. PSC, 2001 MT 102,
¶ 32, 305 Mont. 260, 26 P.3d 91 (citing Pearson v. Virginia City Ranches Ass’n,
2000 MT 12, ¶ 30, 298 Mont. 52, 993 P.2d 688) (other citations omitted)). There are two
components to ripeness: a constitutional component and a prudential component.
Reichert, ¶ 56 (citation omitted). “The constitutional component asks whether there is
sufficient injury” or, framed differently, whether the issues presented are “definite and
concrete, not hypothetical or abstract.” Reichert, ¶ 56 (citing Wolfson v. Brammer,
11 616 F.3d 1045, 1058 (9th Cir. 2010)). The constitutional component therefore is closely
tied to standing. Reichert, ¶ 56; see also Weems v. State, 2019 MT 98, ¶ 11, 395 Mont. 350,
440 P.3d 4. The prudential component weighs “the fitness of the issues for judicial decision
and the hardship to the parties of withholding court consideration.” Reichert, ¶ 56 (citation
omitted). The prudential component demands consideration of whether the record
presented is “factually adequate.” Reichert, ¶ 56 (citations omitted). “The more the
question presented is purely one of law, and the less that additional facts will aid the court
in its inquiry, the more likely the issue is to be ripe, and vice-versa.” Havre Daily News,
LLC v. City of Havre, 2006 MT 215, ¶ 20, 333 Mont. 331, 142 P.3d 864 (citation omitted);
see also Abbott Labs v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 1515 (1967).
¶21 We considered in Montana Power Company whether the Montana Power
Company’s (MPC) action for judicial review of a Montana Public Service Commission
(Commission) order was ripe. Mont. Power Co., ¶¶ 13-14, 32. Under the Electric Utility
Restructuring and Customer Choice Act (Act), the Commission was charged with
administering a statutorily mandated restructuring and deregulation of utilities, such as the
MPC. Mont. Power Co., ¶¶ 5-6. The Act allowed utilities to file proposals for the recovery
of some transition and deregulation costs, including future uncertain costs if the cost
estimates were “reasonably demonstrable” and approved by the Commission. Mont. Power
Co., ¶¶ 8-9. But the Commission could not make this determination without first
conducting a hearing and issuing a final order. Mont. Power Co., ¶ 9. Due to the
uncertainty of calculating future costs, MPC asked the Commission to waive the estimate
requirement for some of its future transition costs and to instead “track” those costs over
12 the next twenty-five to thirty years, until a more accurate figure could be determined. Mont.
Power Co., ¶ 11. The Commission found, however, that it was not required to track MPC’s
transition costs under the Act. Mont. Power Co., ¶ 13. Before the Commission conducted
a hearing or issued an order regarding MPC’s transition costs, MPC sought judicial review
of the Commission’s refusal to use its tracker system on the ground that the Commission
would violate MPC’s constitutional rights in the future by depriving it of its property
without the accuracy of a tracking system. Mont. Power Co., ¶¶ 16, 33. We held that
MPC’s claim of a constitutional taking was “hypothetical and speculative” and thus not
ripe for judicial review. Mont. Power Co., ¶ 36. MPC’s claim depended on the assumption
that its cost estimates would turn out to be too low, in which case it might recover less than
its actual transition costs. Mont. Power Co., ¶ 37. This, we held, was not a “real” or
“imminent” injury. Mont. Power Co., ¶ 38.
¶22 We considered similarly whether facial and as-applied challenges to the
constitutionality of the Sentence Review Division (SRD) were ripe for judicial review in
State v. Whalen, where the appellant had not yet pursued sentence review from the SRD.
2013 MT 26, ¶ 39, 368 Mont. 354, 295 P.3d 1055. Whalen argued that the SRD process
threatened him with an additional sentence and that, if he was required to avail himself of
the SRD process, he would be harmed by having to wait through additional years of
incarceration. Whalen, ¶ 39. We held that Whalen’s challenge was not ripe for review
because he had “not proceeded through the sentence review process” and it was unknown
whether he would apply for sentence review or, if he did, what the result of the SRD process
would be. Whalen, ¶ 42.
13 ¶23 We considered in Weems whether a Certified Nurse Practitioner’s (CNP) and
Certified Nurse Midwife’s (CNM) challenges to a statute that restricted the performance
of pre-viability abortions to only licensed physicians and certified physician assistants were
ripe for review. Weems, ¶ 1. The central dispute between the parties was whether the
allegedly unconstitutional statute was “the regulatory barrier that prevent[ed]
[the plaintiffs] from performing aspiration and medication abortion procedures, or whether
the Board of Nursing must act first to authorize such procedures within the plaintiffs’ scope
of practice before the statute comes into play.” Weems, ¶ 13. We held that the plaintiffs’
alleged injuries were indeed concrete, rather than hypothetical or abstract, because the
statute itself is what precluded the plaintiffs from being licensed by the Board to perform
the medical procedures at issue. Weems, ¶¶ 13-14. Stated differently, the very enactment
of the statute threatened to deprive the plaintiffs of a constitutional right.
¶24 Advocates maintains that its facial challenge to HB 286 is ripe for review. It relies
primarily on two arguments to show that the enactment of HB 286 caused Advocates a
definite and concrete injury: (1) HB 286 ipso facto reduces the value of the affected school
trust lands, pursuant to Pettibone, and (2) HB 286 creates a presumption against State
ownership of water rights used on state lands.
¶25 Advocates’ first contention, that HB 286 ipso facto reduces the value of the affected
school trust lands, is grounded in Pettibone’s observation that a lessee who owned a water
right on school trust land “would in effect be able to control the use of the land.” Pettibone,
216 Mont. at 373, 702 P.2d at 955. Unlike Pettibone, however, where the Water Court
14 erroneously granted the lessees pre-1973 “use rights” in school trust land waters,
Advocates’ alleged injury depends on the occurrence of future, hypothetical events.
¶26 As in Montana Power Company, where MPC claimed that it would be deprived of
a property interest if its tracker system was not used, Advocates’ assertion that HB 286
reduces the value of the lands is similarly remote and abstract. Similar also to Whalen,
where the defendant claimed that the SRD was facially unconstitutional prior to seeking
sentence review, it is unknown whether HB 286 will decrease the value of any affected
school trust lands unless and until the State uses the statute to assert the Trust’s rights.
Advocates’ argument that HB 286 reduces the value of the school trust lands is not,
therefore, a definite and concrete injury but an anticipated one that depends on the
occurrence of future events.
¶27 Weems, on the other hand, is readily distinguishable from Advocates’
reduction-in-value claim. Whereas in Weems the statute itself was “the regulatory barrier”
that deprived plaintiffs of a constitutional right, Advocates’ alleged constitutional injury
from the devaluing of school trust lands depends on further action (or inaction) by the State
in the future. Advocates does not allege that the State has invoked HB 286 and been denied
a particular water right. Nor does it identify any particular parcel of school trust land that
has diminished in value as a result of HB 286. Without such a factual record, Advocates
identifies only a hypothetical injury, insufficient to satisfy the constitutional component of
ripeness. The State’s ownership of particular water rights may be addressed in a water
court or DNRC proceeding like any other adjudication and, if the result allegedly impairs
the value of the trust lands, those decisions may be challenged in the proper court—either
15 on appeal to this Court from the Water Court or through judicial review of the agency’s
action.1 Because Advocates’ argument that HB 286 reduces the value of school trust lands
hinges on the development of additional facts, the prudential component of ripeness also
fails here. Whether HB 286 does or does not reduce the value of school trust lands is not
purely a question of law but requires a “factually adequate” record. See Reichert, ¶ 56.
¶28 Advocates’ second contention, that HB 286 creates a presumption about the water
rights on school trust lands, is different. As in Weems, where the statute itself allegedly
deprived the plaintiffs of a constitutional right, this argument does not depend on the
development of particular facts; the alleged constitutional injury is the purported
presumption against State ownership. Advocates maintains that the presumption created
by HB 286 violates the State’s trust obligations. This argument, in contrast to the previous
one, does not depend on further State action or adjudication. It alleges a definite and
concrete injury because Advocates claims that the presumption against State ownership
violates the Trust.
¶29 An examination of the State’s arguments fails to convince us that this aspect of the
claim is not ripe. The State first contends, incorrectly, that Advocates did not argue
ripeness in its opening brief and thus waived that argument on appeal. Advocates clearly
addressed the constitutional component of ripeness by arguing in its opening brief that it
has suffered a definite and concrete injury. It also analyzed the prudential component of
1 DNRC permitting decisions under Title 85, Chapter 2, Part 3 are subject to judicial review under the Montana Administrative Procedures Act. See Clark Fork Coal. v. Mont. DNRC, 2021 MT 44, ¶ 31, 403 Mont. 225, 481 P.3d 198. 16 ripeness by arguing that withholding judicial review will cost the Trust valuable resources.
Second, the State argues that Advocates’ claim does not pertain to individual water rights
and thus is factually inadequate. But a facial challenge may be ripe if it does not depend
on the development of a factual record. See Reichert, ¶ 60; Havre Daily News, ¶ 20. The
crux of a facial challenge is that the statute is unconstitutional in all its applications.
Hensley v. Mont. State Fund, 2020 MT 317, ¶ 17, 402 Mont. 277, 477 P.3d 1065. Though
Advocates’ first argument requires additional factual development, its second argument
asks the Court to find constitutional infirmity from HB 286’s operation in every case. As
Advocates points out, HB 286 nullified the State’s interest in 141 water rights it already
obtained through the Form 608 process, giving rise to a sufficiently concrete harm that is
ripe for review. Finally, citing Montana Power Company and other administrative law
cases, the State maintains that Advocates’ asserted injury is merely speculative because
HB 286 is procedural in nature. We conclude that this last point, though valid, pertains to
the merits of Advocates’ challenge, not to the ripeness of that asserted claim.
¶30 We thus turn to the merits of Advocates’ facial challenge to HB 286 on the ground
that it creates a presumption against State ownership. Advocates relies heavily on
Pettibone for this argument; it ignores, however, the obvious procedural dissimilarities
between Pettibone and the instant case. Pettibone reached this Court on appeal from the
Water Court, which granted the lessees of twenty-three school trust lands pre-1973
“use rights” in waters diverted or developed on those lands. Pettibone, 216 Mont. at 366,
702 P.2d at 951. As pre-1973 water rights, their ownership was at issue because of the
general water rights adjudication underway in Montana. Pettibone, 216 Mont. at 367,
17 702 P.2d at 951. This was precisely the point of enacting the 1973 WUA and creating the
Water Court system, as we explained in Pettibone, 216 Mont. at 367-68,
702 P.2d at 951-52. We held on appeal that granting those water rights to the lessees
diminished the value of the lands and violated the State’s obligations to the Trust.
Pettibone, 216 Mont. at 368, 702 P.2d at 952. Here, by contrast, it is undisputed that the
private landowners obtained DNRC permits for these post-1973 water rights. Both the
State and Advocates acknowledge that the attempted transfer of permitted water rights by
TLMD in 2015 was improper. There is no indication, therefore, that HB 286 “granted” the
private landowners anything other than a process. The statute does not use the word
“presumption” or include other language placing trust ownership at a disadvantage in that
process. HB 286 simply maintains the status quo until the State asserts its ownership of
water rights in the affected lands while preventing potential due process issues raised by
the invalid 2015 transfer. “[I]t is paramount that we give such construction to the statute
as will preserve the constitutional rights of the parties.” Mont. Power Co., ¶ 33. Construing
HB 286 by its plain language as a procedural mechanism preserves both Advocates’ rights
and those of the water rights holders.
¶31 The District Court correctly concluded that “nothing in HB 286’s plain language
. . . impairs Montana’s sovereign trustee duties or trust land management prerogatives to
ensure that trust lands are not devalued by any policy or law.” See Pettibone,
216 Mont. at 371, 702 P.2d at 954. This conclusion, however, supports a determination
that HB 286 is facially constitutional, not that Advocates’ claim is unripe. We may affirm
a district court’s ruling on any ground supported by the record, regardless of the court’s
18 reasoning. State v. Wilson, 2022 MT 11, ¶ 34, 407 Mont. 225, __ P.3d __. We agree with
Advocates that whether HB 286 on its face creates a presumption against State ownership
is ripe for review. We reject that argument, however, on its merits. The plain language of
the statute neither establishes a presumption nor deprives Advocates of a constitutionally
protected interest. As such, the District Court did not err by granting summary judgment
to the State.
¶32 2. Whether the District Court abused its discretion when it denied Advocates’ motion to amend its complaint on the ground that adding an as-applied challenge would be futile.
¶33 Except where pleadings are amended “as a matter of course,”
see M. R. Civ. P. 15(a)(1), “a party may amend its pleadings only with the opposing party’s
written consent or the court’s leave.” M. R. Civ. P. 15(a)(2). “The court should freely give
leave when justice so requires.” M. R. Civ. P. 15(a)(2). Though “[w]e interpret the rule
liberally so that allowance of amendments is the general rule and denial is the exception,”
a district court nonetheless may deny an amendment for reasons such as “undue delay, bad
faith or dilatory motive[,] . . . repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice[,] . . . [or] futility.” Diana’s Great Idea, LLC v.
Jarrett, 2020 MT 199, ¶ 16, 401 Mont. 1, 471 P.3d 38 (citations omitted).
¶34 Advocates filed a motion to amend its complaint to add as-applied constitutional
challenges to HB 286 and § 85-2-306(1), MCA, under the same legal theory—that the State
violated its trust obligations—and to add attorney fees and costs.
Section 85-2-306(1)(a), MCA, states that “ground water may be appropriated only by a
person who has a possessory interest in the property where the water is to be put to
19 beneficial use and exclusive property rights in the ground water development works.” The
State cited this statute in response to an interrogatory to show that prior to the passage of
HB 286 it could not have obtained ownership over the water rights at issue here. Advocates
argued that the State’s interrogatory response “falsely links the constitutionality” of
HB 286 to § 85-2-306(1)(a), MCA, and thus necessitates a combined analysis.
¶35 Advocates supported its motion with a partial transcript of the HB 286 legislative
hearings, a declaration of a DNRC Water Rights Specialist, and a portion of the State’s
discovery responses. None of the attached documents, however, showed that HB 286 or
§ 85-2-306(1), MCA, had been applied in a manner that reduced or threatened to reduce
the value of school trust lands. Finding that Advocates “alleged no additional facts to show
that [its] as-applied challenge[s] . . . are ripe,” the District Court denied the motion on the
ground that the amendment would be futile.
¶36 It is not an abuse of discretion to deny a motion to amend for futility when it is clear
that the complaint would not be saved by the amendment. Cavalho v. Equifax Info. Servs.,
LLC, 629 F.3d 876, 893 (9th Cir. 2010). Conversely, “it is an abuse of discretion to deny
leave to amend [on grounds of futility] where it cannot be said that the pleader can develop
no set of facts under its proposed amendment that would entitle the pleader to the relief
sought.” Hobble-Diamond Cattle Co. v. Triangle Irrigation Co., 249 Mont. 322, 325,
815 P.2d 1153, 1155-56 (1991). But the question whether the proposed amendment entitles
the plaintiff to relief (i.e., is or is not futile) is a question of law. See United Health,
848 F.3d at 1172.
20 ¶37 We thus review de novo the futility of Advocates’ proposed amendment to
determine whether it cures the ripeness problems identified by the District Court.
See United Health, 848 F.3d at 1172. As stated above, Advocates must present an
“actual, present controversy that is not hypothetical or speculative.” Mont. Power Co.,
¶ 32. It must show a concrete and definite injury by alleging sufficient facts to establish
that a specific application of HB 286 or § 85-2-306(1), MCA, alienated an interest in trust
land without adequate compensation or infringed on the State’s managerial prerogatives
and reduced the value of the land. See Pettibone, 216 Mont. at 371, 702 P.2d at 954.
¶38 Citing City of Missoula v. Mt. Water Co., 2018 MT 139, ¶ 29, 391 Mont. 422,
419 P.3d 685, Advocates argues that the District Court should have permitted its
amendment because the as-applied challenges require further fact development. In City of
Missoula, we reversed on summary judgment the denial of an appellant’s as-applied
challenge to a statute limiting “necessary expenses of litigation” to “the customary hourly
rates for an attorney’s services in the county in which the trial is held.” City of Missoula,
¶ 29; see § 70-30-306(2), MCA. Because it was an as-applied challenge, we explained that
the appellant was “entitled to limited discovery” related to “the approach taken by the City
to prosecute the action and the corresponding expenses incurred by the City.” City of
Missoula, ¶ 29. That an as-applied challenge to a statute necessarily requires more fact
development than a facial challenge does not relieve a party of its burden to present a
justiciable claim. On the contrary, the prudential component of ripeness is more
demanding when a claim is less a “pure[ ] question of law” and more dependent on facts.
See Havre Daily News, ¶ 20. City of Missoula is not on point. There, the district court did
21 not dismiss the as-applied challenge as nonjusticiable; it dismissed it on the merits of the
party’s constitutional claim.
¶39 Advocates maintains that the amended complaint does indeed contain sufficient
allegations of lost value to the trust lands. But the only evidence Advocates cites beyond
opponents’ legislative testimony is the State’s assertion in discovery that no one has
performed any computation concerning the total water rights or values affected by HB 286.
Absence of evidence of value is not evidence of reduced value. Advocates does not explain
how further discovery will reveal more facts of diminished value when there as yet have
been no proceedings conducted under HB 286.
¶40 In Hobble-Diamond, a plaintiff (Hobble-Diamond) suffered damages from the
malfunction of a pivot sprinkler system installed by Triangle Irrigation. Hobble-Diamond,
249 Mont. at 323, 815 P.2d at 1154. Hobble-Diamond initially sought relief for damages
caused by two defective pivots in the irrigation system but later moved to amend its
complaint to add damages arising from the malfunction of a third pivot. Hobble-Diamond,
249 Mont. at 323, 815 P.2d at 1154. Along with its motion to amend, Hobble-Diamond
submitted two reports suggesting the third pivot was defective—one from a Triangle
Irrigation employee and another from an independent engineering consultant—and an
affidavit of Hobble-Diamond’s principal describing problems caused by the third pivot.
Hobble-Diamond, 249 Mont. at 324-25, 815 P.2d at 1155. Because Hobble-Diamond
presented “evidence that it had new information available to it regarding possible crop loss
due to an inadequate pivot,” we held that the district court abused its discretion when it
denied Hobble-Diamond’s motion. Hobble-Diamond, 249 Mont. at 325-26,
22 815 P.2d at 1155-56. We rejected Triangle Irrigation’s argument that the principal’s
affidavit contradicted his earlier deposition testimony because that contention was
“relevant to his credibility as a witness rather than the merits of the amendment.”
Hobble-Diamond, 249 Mont. at 325-26, 815 P.2d at 1156.
¶41 Unlike Hobble-Diamond, where the plaintiff presented newly discovered facts
supporting a third theory of recovery, Advocates does not present any new facts that could
state a ripe claim. See Hobble-Diamond, 249 Mont. at 325-26, 815 P.2d at 1155-56.
Whereas Triangle Irrigation’s only defense was that the new facts asserted by
Hobble-Diamond contradicted an earlier deposition of Hobble-Diamond’s principal,
Advocates’ proposed amendment suffers the same deficiencies as its initial complaint.
See Hobble-Diamond, 249 Mont. at 325-26, 815 P.2d at 1156. Legislative testimony and
hypotheses regarding the value of these lands will not supply the missing link here—that
the State invoked HB 286 or § 85-2-306(1), MCA, in a way that alienated an interest in
school trust lands without adequate compensation or reduced the value of the land. The
District Court found, and we agree, that the additional facts and claims Advocates proposed
would not present a definite, concrete injury. Advocates, therefore, cannot overcome the
justiciability defects of its initial complaint. It is clear that the proposed amendment would
not have saved Advocates’ complaint. Therefore, the District Court did not abuse its
discretion when it denied Advocates’ motion to amend as futile.
23 CONCLUSION
¶42 We affirm the District Court’s April 12, 2021 Order denying leave to amend and
awarding judgment in favor of the State.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ DIRK M. SANDEFUR /S/ JIM RICE