Montco v. Simonich

947 P.2d 1047, 285 Mont. 280, 54 State Rptr. 1150, 1997 Mont. LEXIS 232
CourtMontana Supreme Court
DecidedOctober 31, 1997
Docket96-656
StatusPublished
Cited by25 cases

This text of 947 P.2d 1047 (Montco v. Simonich) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montco v. Simonich, 947 P.2d 1047, 285 Mont. 280, 54 State Rptr. 1150, 1997 Mont. LEXIS 232 (Mo. 1997).

Opinions

JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a summary judgment by the Thirteenth Judicial District Court, Yellowstone County, which allowed Monteo to renew a mining permit and denied summary judgment to the intervenors, Northern Plains Resource Council, Native Action, and the Northern Cheyenne Tribe. The intervenors appeal. We reverse.

The decisive issue is whether Montco’s mining permit terminated because of Montco’s failure to begin mining operations, with the result that the permit could not be renewed.

[283]*283Background

In 1984, the Montana Department of State Lands (DSL) issued a five-year surface mining permit to Monteo under the Montana Strip and Underground Mine Reclamation Act, §§ 82-4-201 to -254, MCA. The permit authorized Monteo to develop a surface coal mine south of Ashland, Montana, and just east of the Tongue River, the eastern boundary of the Northern Cheyenne Indian Reservation.

Monteo performed no site preparation, construction, or mining during the first three years of the permit period as required under both the statute and the permit, but it applied for and was granted a two-year extension of the deadline as allowed under § 82-4-221(1), MCA. During the first four years, the five-year permit was under challenge in administrative and judicial proceedings brought by the Northern Plains Resource Council, a nonprofit citizens’ organization of landowners near the proposed Monteo mine. By December 1988, those challenges were decided and rejected. Throughout that time, the permit and Montco’s right to conduct mining operations under it remained in full force and effect.

As the five-year permit period neared its end, Monteo still had not initiated any physical operations on the mine. The chief of DSL’s Coal and Uranium Bureau asked DSL’s chief legal counsel for an opinion on the interaction between the requirement that mining operations be initiated during the permit term and the renewability of the permit. Referring to the “due diligence requirements” of § 82-4-221(1), MCA, which direct that mining operations be commenced during the permit term, DSL Bureau Chief Lovelace asked whether a renewal application from Monteo would be processed. The legal opinion concluded that the Monteo permit should be renewed “upon a showing of the necessity for an extension of time to commence mining as required in ARM 26.4.406 [the regulation controlling discretionary extensions of the mining deadline] and upon following the procedures for renewal spelled out in ARM 26.4.410 [the regulation controlling permit renewals].”

Accordingly, DSL’s legal position was that to obtain a renewal, Monteo would also have to show that it qualified for an extension of the mining deadline. In December 1988, DSL’s Commissioner advised Monteo that if it applied for a renewal he would grant the application, because the permit had been the subject of administrative and judicial litigation for four of its five years and Monteo therefore had [284]*284“good reason under a test of prudent business practices for not initiating mining.”

Before the end of the five-year permit term, Monteo applied for renewal. Failing through oversight to follow its own legal position that the renewal application must be processed parallel with an application for extension of the mining deadline, DSL simply granted a five-year renewal, tacitly moving the mining deadline to the end of the third year of the renewal term, eight years after the original permit was issued.

As the end of year eight approached, Monteo still had not begun any preparation, construction, or mining. It applied for another two-year extension of the mining deadline. DSL granted two short extensions and then the full requested extension through year ten, in 1994. Throughout the second five-year period, there were no formal administrative or judicial proceedings challenging the state mining permit or mining deadline extensions.

As 1994 drew to a close, Monteo still had not begun any physical operations. It applied for another five-year renewal. This time, DSL implemented its position that Monteo must also formally apply for an extension of the mining deadline. Under protest, Monteo applied for a three-year extension of the mining deadline to the end of year thirteen in 1997.

Intervenors Northern Cheyenne Tribe, Northern Plains Resource Council, and Native Action (a nonprofit organization on the Northern Cheyenne Reservation) each formally opposed the applications for renewal and extension. DSL held an informal conference on the applications and objections, and the Intervenors, Monteo, and others submitted oral and written comments. In December 1994, the Commissioner issued findings of fact and an order denying an extension of the mining deadline and discontinuing processing of the renewal application on the basis that denial of the extension rendered the renewal moot.

Monteo petitioned DSL to complete processing of its renewal application and to reconsider its denial of the mining deadline extension. It also filed the complaint in this action, which was stayed pending the administrative proceedings. In March 1995, DSL held a second informal conference, at which the intervenors presented oral testimony and written materials. After the conference, all parties submitted further written materials. In April 1995, the Commissioner issued a final decision superseding his decision of December 1994 and renewing the permit, but holding that renewal did not carry [285]*285with it an automatic extension of the mining deadline. Reaffirming his prior decision, the Commissioner denied the mining deadline extension and held that the permit was therefore terminated.

Monteo then initiated a contested case proceeding within DSL concerning the Commissioner’s April 1995 decision. The Intervenors jointly filed a cross request for such a proceeding. All parties negotiated and approved a stipulation and order terminating the contested case proceeding by adopting the April 1995 decision of the Commissioner as DSL’s “final decision” on Montco’s applications for extension and renewal. This paved the way for adjudication of Montco’s and the Intervenors’ claims through this litigation.

Continuing this action in District Court, the Intervenors were granted leave to intervene and filed their joint answer in intervention. An agreed scheduling order was entered on the basis of the administrative record as submitted to the court, and the Intervenors, Monteo, and DSL each moved for summary judgment.

Each summary judgment motion was based entirely on the administrative record and on the pleadings filed; no affidavits or additional evidentiary materials were submitted in opposition to summary judgment and there was no contention that genuine issues of material fact existed. The Intervenors contended that, as a matter of law, Montco’s mining permit was not renewable for a third five-year term because it terminated for failure to commence mining operations by the extended mining deadline. They also argued that, should the court hold that the permit was renewable, renewal did not automatically carry with it an extension of the mining deadline and in connection with renewal, Monteo was obligated to apply for an extension of the mining deadline, the grant or denial of which was discretionary.

DSL’s summary judgment motion was premised on the permit being renewable for a third five-year term.

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Cite This Page — Counsel Stack

Bluebook (online)
947 P.2d 1047, 285 Mont. 280, 54 State Rptr. 1150, 1997 Mont. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montco-v-simonich-mont-1997.