City of Austin, Texas and Lower Colorado River Authority v. Decker Coal Company, a Joint Venture, Wytana, Inc. And Western Minerals, Inc.

701 F.2d 420, 1983 U.S. App. LEXIS 29319

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 28, 1983
• Docket: 81-1618
• Status: Published

Opinions

E. GRADY JOLLY, Circuit Judge:

I. INTRODUCTION

This case comes before this court from a decision by the district court for the Western District of Texas, Bunton, J., in favor of the plaintiffs — the City of Austin, Texas, and the Lower Colorado River Authority.¹

We are presented with a question of allocation of costs under a coal procurement contract entered into between the plaintiffs and Decker Coal Company.² Specifically, the issue involved is whether, pursuant to the contractual provision allowing Decker to pass costs on to the plaintiffs for “any new legislation, regulation, judicial action ... or labor agreement ... enacted, promulgated, or taken or made effective after March 31,1974,” Decker could pass through cost increases resulting from a 1976 determination by the Montana Department of State Lands [hereinafter, “MDSL”], pursuant to a pre-1974 Montana statute, which precluded “disturbance” of a certain portion of land within the proposed mine area.³

Because we find, based on an interpretation of the entire contract as required by Montana law,⁴ that the parties intended to allow pass-through of costs resulting from governmental action such as was involved here, we reverse the decision of the court below and remand for a determination of increased mining costs chargeable to the plaintiffs.

II. MOTION FOR CERTIFICATION

We note at the outset that Decker has filed a Motion for Certification to the Montana Supreme Court of the single issue involved herein. We hereby deny that motion.

Our decision not to certify the issue is based on the logic set forth in Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 274-76 (5th Cir.1976), and on the traditional use of certification. If this case turned on Montana’s definition of “regulation” or other terms about which the Montana court possessed expertise, this would be a different case. As -we discuss below, however, we base this decision on a determination of intent as manifested by the contract. Because we are as capable of making that determination on the basis of the record as is Montana, we will do so.⁵

III. FACTS

A. The Contract

In an effort to meet growing energy demands, the plaintiffs, City of Austin and Lower Colorado River Authority, formed jointly the Fayette Power Project. Included in the project’s plans were an electric generation station with one 600-megawatt unit and other units with a variety of coal-burning capabilities.

On October 24, 1974, the plaintiffs entered into the Coal Purchase Contract with Decker. Under the contract, coal deliveries were scheduled to begin in 1978 and to continue for approximately 26 years, until 2003. Over the course of the contract over 50 million tons of coal are to be delivered.⁶

The contract established a “base price” of $7.00 per ton as of March 31,1974. Numerous price adjustment mechanisms were built into the contract, primarily in article IX, which is a detailed enumeration of adjustment factors, covering 11 pages. The pertinent clause within article IX of the contract is paragraph 9.06:

ADDITIONAL COSTS IMPOSED BY LEGISLATION, REGULATION, JUDICIAL ACTION, LABOR AGREEMENT, OR CHANGES IN THE METHOD OF OPERATION DUE TO MATERIAL SHORTAGES

The price of coal shall be increased from the base price in the same amount that the cost per ton of mining coal at the Mine is increased by any direct cost or required investment in order to comply with any new legislation, regulation, judicial action (other than the codification of the common law), or labor agreement which provides for new “add-ons” or additional personnel .... enacted, promulgated, or taken or made effective after March 31, 1974.

B. The Mine

In July 1973 Decker filed an Application for Prospecting Permit with MDSL for exploration by rotary drill holes in Big Horn County, Montana. The site, known as “East Decker,” is east of the Tongue River Reservoir directly across from another Decker mining area, dubbed “West Decker.” Decker had acquired a perpetual coal lease for this area in September 1971.

The East Decker site lies, in part, within the Deer Creek floodplain, through which Deer Creek flows on its way to Tongue River Reservoir. Deer Creek has a drainage area of approximately 50 square miles and its floodplain contains riparian timber, shrub habitat and significant wildlife.

Decker’s permit application specified the acreage to be disturbed, the method of prospecting, the mineral sought, and included a Detailed Prospecting Reclamation Plan with maps. In its reclamation plan, Decker stated: “2. The Company assures the Department of State Lands that the area covered by the application for prospecting permit includes no land having special, exceptional, critical, or unique characteristics as defined in Section 9(2) (a, b, c, d) Chapter 325, Laws of Montana 1973.”⁷

Decker went on to say that based on interviews with local residents of the community, no “archaeological, historical, ethnological and cultural values” would, to Decker’s knowledge, be affected. Nor would the “use, enjoyment, or fundamental character” of neighboring lands with such characteristics be adversely affected. Decker promised MDSL that should any characteristics of “Section 9” lands be encountered it would cease prospecting, notify MDSL immediately, and reclaim all disturbances within the area having those characteristics.⁸ The Application for Prospecting Permit and appended Detailed Prospecting Reclamation Plan were filed as required by the Montana Strip and Underground Mine Reclamation Act, 1975 Mont.Laws ch. 441, sec. 14, and by the regulations adopted by MDSL pursuant thereto, Mont.Admin.Code §§ 26-2.10(10)-S10270 to -350 (1973).⁹

On July 23, 1973, MDSL issued Decker a permit allowing Decker to prospect on the lands in question, according to the procedures and assurances which it had set forth in its permit application. This permit was reissued on September 21, 1973, and renewed on September 20, 1974. In the 1974 renewal MDSL stated that the permit “in no way implies future Department approval of any area for mining,” and attached a MDSL letter spelling out the requirements vis-a-vis the nearby Tongue River Reservoir so that no water pollution should occur.¹⁰

Finally, on April 9,' 1975, Decker submitted an application for a strip mining permit to MDSL. Included in the application was a proposal to place “overburden” and spoil materials into the Deer Creek floodplain, to divert Deer Creek from its original channel, and to affect Deer Creek drainage in other ways. Decker submitted archaeological, ecological and topographic data with the application and stated that the area did not encompass any “Section 9” lands. Appended to the application was a 1973 “Historic and Archaeologic Resources Impact Appraisal” which included an evaluation of the proposed mining area. According to Decker, this report, prepared by Western Interpretive Services, indicated “a low probability of the área” possessing special characteristics as set forth in Section 9.¹¹

C. The Problem

Pursuant to its statutory¹² and regulatory requirements,¹³ MDSL had begun its process of determining whether Decker’s proposed mining plan would adversely affect any lands that had the characteristics required for “Section 9” classification. This analysis began at least as early as February I, 1974. Over the next 2 years, MDSL conducted extensive investigations to make this determination. As set forth in Decker’s response to plaintiffs’ interrogatories, at least 15 meetings were held with MDSL officials to discuss the problems MDSL perceived insofar as whether the lands affected had the characteristics described in Section 9.

In February 1976, MDSL determined that portions of the mining area did possess “Section 9” characteristics.¹⁴ Subsequently, in March 1976, MDSL established a tentative “non-disturbance” line which essentially provided that the Upper Deer Creek floodplain could not be disturbed, but which allowed disturbance of the Lower Deer Creek floodplain. This line was established finally in April 1977 and was presumably based on a decision that the Upper Deer Creek floodplain was “Section 9” land and that the Lower Deer Creek floodplain was not.

As a result of this determination, Decker had to revise its proposed mining plan to avoid disturbance of the protected area. After nine additional meetings to consider the “Section 9” problem, and after submission of three proposed mining plans by Decker, MDSL approved a plan on July 13, 1977, which replaced the use of draglines with a truek-and-shovel mining method. This plan, as determined by MDSL, eliminated the deposit of “overburden” or other disturbance in the Upper Deer Creek floodplain.

Unfortunately, as stipulated by the parties, the substitute method increased the costs of mining.¹⁵

All of which brings us back to the only issue which concerns us: Was the action taken by MDSL in February-March 1976 in classifying the Upper Deer Creek floodplain as “Section 9” land and in establishing the non-disturbance line a “new ... regulation ... enacted, promulgated or taken or made effective after March 31, 1974,” as contemplated by the contract?

IV. DETERMINATION

A. Standard of Review

In the Findings of Fact and Conclusions of Law entered pursuant to its judgment, the district court held that the contract is “unambiguous on its face” and that the term “new ... regulation ... does not apply to mere enforcement of regulations already existing.” The court found for the plaintiffs and awarded them some $10.1-million, which had been the stipulated amount of damages should the plaintiffs prevail on the liability portion of the case.¹⁶

Our initial question in reviewing this dispute concerns the correct standard of review.

This circuit, in conformity with other circuits, has consistently held that the interpretation of a contract “is a matter of law reviewable de novo on appeal.” Matador Drilling Co., Inc., v. Post, 662 F.2d 1190, 1197 (5th Cir.1981). See also Eaton v. Cour-taulds of North America, Inc., 578 F.2d 87, 90 (5th Cir.1978). The stated and logical reason for de novo review is that “this Court is in as good position to interpret the ... written contract as was the district court.” Illinois Central R.R. v. Gulf, Mobile & Ohio R.R., 308 F.2d 374, 375 (5th Cir. 1962).

This broad standard of review includes the determination of whether the contract is ambiguous. This initial determination is, equally with other aspects of contract interpretation, a question of law. In re Stratford of Texas, Inc., 635 F.2d 365, 368 (5th Cir.1981).

We must keep in mind that “ ‘[contracts are not rendered ambiguous by the mere fact that the parties do not agree upon their proper construction’,” Freeman v. Continental Gin Co., 381 F.2d 459, 465 (5th Cir.1967), quoting Whiting Stoker Co. v. Chicago Stoker Co., 171 F.2d 248, 250-51 (7th Cir.1948).¹⁷

With this caveat in mind, and mindful of the prescriptions of Montana law which govern contract interpretation; we find the contract unambiguous, as did the lower court, but find that the contract evidences an intent that a determination of the type made by MDSL in February-March 1976 comprised a “new ... regulation” within the meaning of the contract.¹⁸

B. Contract Interpretation Under Montana Law

Turning to Montana law, we note initially that courts are to give effect to the mutual intent of the parties which existed at the time of contracting, “so far as the same is ascertainable and lawful.”¹⁹ That intent “is to be ascertained from the writing alone if possible.”²⁰ The entire contract is to be looked to in determining intent ²¹ and “[t]he words of a contract are to be understood in their ordinary and popular sense rather than according to their strict legal meaning unless used by the parties in a technical sense ....”²²

Our task is to look to the entire contract and “to give effect to every part if reasonably practicable, each clause helping to interpret the other.”²³ We are bound by the contract and may not reconstruct it by outside reference.

C. The Contract

The City of Austin argues that the action taken by MDSL did not constitute “new ... regulation” within the meaning of the contract for two reasons. First, the action was not “new” because the statute prohibiting mining operations on Section 9 lands was in effect prior to “the critical date,” i.e., March 31,1974, “and this statute constituted the regulation.... ” Second, the City of Austin argues that MDSL’s action was merely administrative enforcement of an existing regulation and was not itself a “regulation” within the meaning of the paragraph 9.06.

Decker argues that the action taken in February-March 1976 establishing Upper Deer Creek floodplain as “Section 9” land and precluding mining activity on that land was both “new,” i.e., occurring after March 31, 1974, and a form of “regulation” within the meaning of paragraph 9.06.

In order to determine the intent of the parties in the creation of paragraph 9.06, an analysis of the relevant sections of the contract is required.

The prefatory language provides that the purpose of the contract is to provide “an assured and dependable supply of low sul-phur coal.. . . ”

Article I states simply that Decker owns leases from which the coal shall be mined. At the time of execution of the contract, Decker “is planning to open the Mine.”

Article II provides a twenty-six year contract term with delivery to commence sometime between January 1 and September 30, 1978.

Article III provides that, during the term of the contract, between 51.6 — 56.76 million tons of coal are to be delivered.

Article IV specifies the quality of the coal, with an approximate average per pound “heat content” of 9,200 BTU. A reduction of 50$ per ton from the “then-current price” is provided for usable coal with less than 9,000 BTU per pound.²⁴

Article V provides that Decker will install “the most modern machinery, equipment and other facilities,” that it will operate the machinery in order to produce the coal efficiently and economically, and that the machinery, equipment and facilities will be acquired by Decker “with its own capital.”

Article VIII provides a “base price” of $7.00 per ton, subject to adjustments provided in articles IV and IX.

Article IX contains the major price adjustments and is discussed below.

Article XI is the force majeure clause.

Article XV provides that the City of Austin can discontinue acceptance of delivered coal when its sulphur content exceeds or its BTU content falls below article IV requirements for any two consecutive months.

The remaining portions of the contract cover such matters as billing, severability, accountants’ reports, waivers and notices, and nondiscrimination in employment.

Article IX comprises the principal price adjustment clause in the contract. It covers eleven pages and provides eleven categories of price changes. The article IX paragraph, adjustment factor, base figure, base date, adjustment basis and party benefited are as follows:

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The contract provides that article IX adjustments be made quarterly. Thus, in the first quarter of actual mining, adjustments for 1974-1978 would be made. This price would in turn be revised each quarter.²⁵

In analyzing the effect of these various elements of the contract, we turn first to the question presented by a reading of article V, providing that “Seller agrees that the machinery, equipment and facilities provided by it shall be acquired with its own capital.” It is urged that this required Decker to absorb all start-up costs and prohibited its passing on to the City of Austin cost increases resulting from interim government-mandated mining changes.

There are critical flaws in such an analysis. First, the most obvious difficulty is that, if the parties did not intend interim government-mandated cost increases to be added to the price of coal, March 31, 1974, would not have been designated as the base date in paragraph 9.06; rather the start-up date would have been used. Second, although the exact nature of the government-mandated increases with which we are dealing remains to be elucidated, some of those increases undoubtedly bear on the various elements which comprise the $7.00 base price, viz.: materials, supplies, labor and so forth. Clearly under the contract interim increases in those costs are to be added to the price of coal. There is no evident reason why other interim cost increases, although mandated by the government, should be treated any differently.²⁶ Third, the critical word in article V is “acquire.” This implies that Decker was to obtain and make the initial payments for machinery, equipment and facilities. To “acquire” means “to gain possession of;” it does not imply that Decker was to bear the ultimate cost.

We grant that the costs which might result from MDSL’s actions could affect the “start-up” costs. That paragraph 9.06 intended to cover such costs, however, is evidenced by its broad language, /.&, “The price of coal shall be increased from the base price in the same amount that th^cost per ton of mining coal at the Mine is increased by any direct cost or required investment. ...” The contract goes on to discuss the computation method for a “capital investment” required under paragraph 9.06. There is no distinction made between pre- and post-start-up costs or investments.

In our view, article V constitutes essentially boilerplate language which, when read in conjunction with article VIII and article IX, requires simply what it states— Decker was to use its own capital in purchasing equipment and facilities in the start-up of the mine. These capitalization costs were factored into the base price, and interim changes in these costs provided in paragraph 9.06 required per ton price adjustment just as did any other cost changes.

The $7.00 “base price” was primarily that — a basis. It was never intended to be the actual price for the coal.²⁷ As indicated by the fact that it was dated some four years before actual delivery, this base price is more important in its function as a gauge for future adjustments than as a price.

It is true that no base figure and no defined schedule is provided for applying cost increases under paragraph 9.06. This does not render it an abstraction, however. “Any direct cost or required investment” was to be factored into the price of the coal. Of course the price could not be adjusted until mining and delivery of coal began— until then there would be no “price” — but it was to be based on events which occurred after March 31, 1974.²⁸

In short, adjustment is provided for all other interim cost increases; interim increases required by governmental action are not treated any differently under the terms of the contract itself. If we are to give effect to every part of the contract,²⁹ we must conclude that qualified, interim government-mandated cost increases were to be treated like all other cost increases and added to the, price of the coal.

This brings us to the next step in our analysis: Whether the actions by MDSL were “new . .. regulations” within the meaning of paragraph 9.06.

We start with the premise that under Montana’s guidelines for contract interpretation we are to view the words “new regulation” in “their ordinary and popular sense rather than according to their strict legal meaning unless used by the parties in a technical sense....”³⁰

The City of Austin argues in this regard that the word “regulation” was indeed used in a “technical sense” in that the four types of activity listed in paragraph 9.06 — “legislation, regulation, judicial action (other than codification of the common law), or labor agreement” — were deliberately matched with the four verbs which follow— “enacted,. promulgated, or taken or made effective.” The City of Austin argues that read thus it is patent that only “regulations ... promulgated” after March 31, 1974, qualify as “new regulations.”

We are not persuaded that there is such a careful pairing of noun and verb as to allow a technical reading of this contract clause. Legislation can be “enacted” or “promulgated” on one date and “made effective” on another date. The same is true for regulations. A labor agreement can be “promulgated” on one date and “made effective” on another date. So, in rare instances, a judicial decision may be “taken” and “made effective” on different dates.³¹

Read in consonance with the entirety of article IX, which provides that all components in the price will be adjusted to reflect costs, we read this contract language as an informal recitation covering the “three branches” of government. We interpret this language as the parties essentially saying, “Here are the elements which make up the cost of mining coal. If, subsequent to March 31, 1974, the government takes new judicial, legislative or administrative actions which increase those costs, those increases will be treated the same as any other increases covered by the contract.”

We cannot say that the parties intended that “new regulation” would require formal regulatory action under Montana’s administrative procedure act. Rather, we believe the parties meant to use the term in its “ordinary and popular sense.”³²

The parties’ manifest intent in providing for cost increases only for “new regulation” was that the City of Austin should not bear the costs for Decker’s failure to comply with existing law whether that failure was knowing, negligent, or innocent. Decker negotiated a base price and was not allowed to turn around and escalate that price because of legal requirements of which it should or could have known.

As the facts indicate, however, MDSL’s action was not mere ministerial enforcement of a clear prohibition of the use of the land in question.³³ Decker’s good faith belief in the truth of the statements made in its initial application, previously referred to, is not in question. As we have noted, Decker stated: “The Company assures the Department of State lands for the area covered by the application for prospecting permit includes no land having special, exceptional, critical, or unique characteristics as defined in Section 9(2) (a, b, c, d) Chapter 325, Laws of Montana 1973.” The factual determination as to whether any part of the land affected by the mining operation was “Section 9” land took over two years to reach. When that determination was made only the Upper Deer Creek floodplain was so classified. Numerous conferences and on-site visits were required. Innumerable telephone calls and correspondence centered on this question.

Significant discretion was involved in MDSL’s action. Their determination could not have been known beforehand by Decker, could not have been factored by the parties into the contract, and, consistent with the language and intent of the contract, therefore constitutes “new regulation.”

The City of Austin states in its Post-Submission Brief that the action by MDSL not only was not “regulation” as intended by paragraph 9.06 but also was not “new” because “the statute prohibiting mining operations on Section 9 land was in effect prior to the critical date and this statute constituted the regulation which resulted in the increased cost.” That statute had never been deemed applicable to the Deer Creek Valley area, however. MDSL’s action thus constituted “new regulation.” The fact that the statute upon which the regulatory action was based pre-dated March 31, 1974, no more disqualifies MDSL’s actions as “new” than would a judicial decision based on an existing statute or on existing precedent. Indeed, all regulations are based on existing statutes. Austin’s reading would thus render the “regulation” in paragraph 9.06 a nullity. The key element in “new” is “unknowable” or “uncertain” and beyond the parties’ control. These elements are present here.

Consistent with this opinion, we therefore reverse and remand this case to the district court for a determination of costs properly allocable to the City of Austin. We expressly do not here conclude what those costs, if any, are to be.

REVERSED AND REMANDED.

1 . Lower Colorado River Authority is a conservation and reclamation district created by Texas law. Its principal offices are located in Travis County, Texas.

2 . Decker Coal Company is a joint venture comprising Wytana, Inc., a Delaware corporation with principal offices in Nebraska, and Western Minerals, Inc., an Oregon corporation. Its principal offices are located in Sheridan, Wyoming. The coal mine is located in south-central Montana, near the Montana-Wyoming state-line.

3 . This case was bifurcated by the district court for liability and damage determinations. Because the court found that the contract did not allow pass-through of the costs in question, a determination of damages was not necessary.

The parties stipulated that Decker’s costs of mining were increased as a result of MDSL’s permit restriction.

4 . Mont.Code Ann. § 28-3-202 (1979). Jurisdiction in district court was based on diversity under 28 U.S.C. § 1332. Under Texas’s choice-of-law rules, the contractual choice-of-law applies. See Austin Bldg. Co. v. National Union Fire Ins. Co., 432 S.W.2d 697, 701 (Tex. 1968). Article 16.01 of the contract provides that Montana law governs its construction.

5 . We note that in Shevin the court specifically stated, that “considerations [in favor of certification] are more applicable in this case [involving suit brought by the Florida attorney general under state statute] than in one involving, for example, the interpretation of a clause in an insurance contract.” 526 F.2d at 275.

6 . Despite this contract dispute, the parties continue to operate under the agreement, and coal shipments are continuing.

7 . Exhibits 2-1 and 2-2 to Docket Entry 38. The lands possessing such characteristics are referred to hereinafter as “Section 9” lands.

8 . Id.

9 . The act was amended in 1979 and is now found at Mont.Code Ann. §§ 82-4-201 et seq. (1979). Section 9 of the 1973 act, 1975 Mont. Laws ch. 441, sec. 21, provided:

(2) The department shall not approve the application for a prospecting, strip mining or underground mining permit where the area of land described in the application includes land having special, exceptional, critical, or unique characteristics, or that [sic] mining or prospecting on that area would adversely affect the use, enjoyment, or fundamental character of neighboring land having special, exceptional, critical, or unique characteristics. For the purposes of this act, land is defined as having such characteristics if it possesses special, exceptional, critical or unique:

(a) biological productivity, the loss of which would jeopardize certain species of wildlife or domestic stock; or

(b) ecological fragility, in the sense that the land, once adversely affected, could not return to its former ecological role in the reasonable [sic] foreseeable future; or

(c) ecological importance, in the sense that the particular land has such a strong influence on the total ecosystem of which it is a part that even temporary effects felt by it could precipitate a system-wide reaction of unpredictable scope or dimensions; or

(d) scenic, historic, archaeologic, topographic, geologic, ethnologic, scientific, cultural, or recreational significance. In applying this subsection, particular attention should be paid to the inadequate preservation previously accorded Plains Indian history and culture.

Throughout the reclamation plan, Decker made repeated references to ecological and environmental concerns.

10 . Exhibits 8-1 and 8-2 to Docket Entry 38.

11 . Exhibit 9-1 to Id. The Western Interpretive Services report was not included with the record before either this court or the district court.

12 . 1975 Mont.Laws ch. 441, sec. 21 provided:

An application for a prospecting, strip mining or underground mining permit shall not be approved by the department if there is found on the basis of the information set forth in the application, an on-site inspection, and an evaluation of the operation by the department that the requirements of the act or rules will not be observed or that the proposed method of operation, backfilling, grading, subsidence stabilization, water control, highwall reduction, topsoiling, revegetation, or reclamation of the affected area cannot be carried out consistent with the purposes of this act.

13 . Mont.Admin.Code § 26-2.10(10)-S10270 (1973).

14 . Specifically, MDSL found that the Deer Creek floodplain contained “special values in terms of biological productivity and as [sic] critical in terms of ecological fragility and importance” and would be adversely affected by the proposed mine. Further, MDSL determined that Tongue River Reservoir, which possessed special characteristics, would also be adversely affected. Letter from C.C. McCall, Administrator, MDSL Reclamation Division, to Jack Reed, Decker Coal Company (Feb. 17, 1976).

15 . The tentative estimate of the parties is that the increase amounted to approximately $l-per ton, or $50-million over the life of the contract. Whether this is accurate or not remains to be seen, as do other considerations in the determination of damages.

16 . The $10.1-million represents the payment by the plaintiffs for incremental costs resulting from Decker’s change in the method of mining, plus prejudgment interest.

17 . By the same token, the fact that courts may disagree as to the import of a contract term does not, by that fact alone, mean that it is ambiguous.

18 . The determination of the parties’ intentions, as revealed solely by the contract, is but another form of contract interpretation, and therefore constitutes a question of law. Only when the contract is ambiguous does determination of the parties’ intent involve a question of fact. Fujimoto v. Rio Grande Pickle Co., 414 F.2d 648, 654 (5th Cir.1969). Having found the contract neither patently nor latently ambiguous, it is therefore appropriate for us to interpret the contract in its entirety to determine intent.

19 . Mont.Code Ann. § 28-3-301 (1979).

20 . Id § 28-3-303 (1979) (emphasis added).

21 . Id. § 28-3-202. See Rumph v. Dale Edwards, Inc., 183 Mont. 359, 600 P.2d 163, 168 (Mont. 1979).

22 . Id. § 28-3-501.

23 . Id. § 28-3-202.

24 . Adjustments are provided to compensate for deviations from the 9,200 BTU level in paragraph 9.09.

25 . It should be noted that the sum of the “base figures” is $7.00, the “base price.”

26 . For example, had Montana adopted a new tax during the interim period which was covered by paragraph 9.05, this would be adjusted for in the price of the coal.

27 . The parties knew that when delivery actually began the price would likely be much higher. Thus, in paragraph 9.09, an illustrative price of $16.00 per ton is used in discussing quality adjustment. Throughout the contract terms such as “then current price” (article IV) or “current sales price” (article XI) are used. The breakdown of the base price into its various components, each with its own price factor, indicates the significance of the $7.00 “base price” as a base rather than as a price.

28 . As in the case of paragraph 9.07, paragraph 9.06 is speculative in nature and merely seeks to clarify a possible eventuality. An accurate “schedule” for such an unknowable, future occurrence contradicts the very uncertainty with which the parties were concerned.

29 . Mont.Code Ann. § 28-3-202 (1979).

³⁰

31 . See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., — U.S. —, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (effective date of decision delayed from June 28, 1982, until October 4, 1982).

32 . Thus interpreted, “regulation” includes not only formal rule-making procedures and edicts but also administrative determinations which involve significant discretion and fact-finding and which could not have been known prior to such determination. To illustrate, writing a parking ticket does not qualify as regulation.

33 . It is noteworthy that the regulations enacted pursuant to the statute do not clarify the characteristics of “Section 9” land but merely refer to the statute itself. Mont.Admin.Code § 26-2.10(10)-S10270(4)(C) (1979).