Noland v. State

2025 MT 294

• Court: Montana Supreme Court
• Decided: December 23, 2025
• Docket: DA 24-0369
• Status: Published

Opinion

12/23/2025

DA 24-0369 Case Number: DA 24-0369

IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 294

PARKER NOLAND,

Plaintiff and Appellant,

v.

STATE OF MONTANA, MONTANA PUBLIC SERVICE COMMISSION, JAMES BROWN, in his official capacity as President of the Montana Public Service Commission, BRAD JOHNSON, in his official capacity as Vice-President of the Montana Public Service Commission, and RANDY PINOCCI, TONY O’DONNELL, and JENNIFER FIELDER in their official capacities as Commissioners of the Montana Public Service Commission,

Defendants and Appellees,

EVERGREEN DISPOSAL, INC.,

Intervenor and Appellee.

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-22-1308 Honorable Amy Eddy, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Ethan W. Blevins, Pacific Legal Foundation, Bountiful, Utah

Jack E. Brown, Pacific Legal Foundation, Arlington, Virginia

Glenn E. Roper, Pacific Legal Foundation, Highlands Ranch, Colorado For Appellees:

Austin Knudsen, Montana Attorney General, Michael Russell, Alwyn Lansing, Thane P. Johnson, Assistant Attorneys General, Helena, Montana

For Intervenor Evergreen Disposal:

Jacqueline R. Papez, Dry Creek Law Firm, PLLC, Red Lodge, Montana

For Amicus Montana Solid Waste Contractors:

James R. Zadick, Ugrin Alexander Zadick, P.C., Great Falls, Montana

For Amicus The Goldwater Institute:

Walter D. Clapp, Honor Coin Law, PLLC, Red Lodge, Montana

For Amici Cato Institute and Mountain States Legal Foundation:

Matthew G. Monforton, Monforton Law Offices, PLLC, Bozeman, Montana

Submitted on Briefs: July 30, 2025

Decided: December 23, 2025

Filed:

__________________________________________ Clerk

2 Chief Justice Cory J. Swanson delivered the Opinion of the Court.

¶1 Parker Noland brings this appeal following the District Court’s granting of

Summary Judgment to the State of Montana and Intervenor Evergreen Disposal

(Defendants). Noland sued the State under the Uniform Declaratory Judgments Act,

seeking to declare two provisions of the Montana Motor Carrier law unconstitutional under

the Montana Constitution and the Fourteenth Amendment of the United States

Constitution. The District Court concluded Noland does not have standing to bring an

as-applied challenge, and the challenged statutory provisions are not facially

unconstitutional. We affirm in part, reverse in part, and remand.

¶2 We restate the issues on appeal as follows:

Issue One: Whether Noland has standing to challenge the constitutionality of the public convenience and necessity provisions of the Montana Motor Carrier law.

Issue Two: Whether the District Court correctly determined Noland’s facial challenge failed because some applicants received a Class D motor carrier certificate.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Having worked construction jobs in Flathead County, Parker Noland was

dissatisfied with the service rendered by the area’s waste disposal companies and

determined there was an opportunity to earn money removing construction debris. Noland

formed a business, PBN LLC, providing construction debris removal, unaware of any

licensing and regulation governing these services. He soon received notice from the

3 Montana Public Service Commission (Commission), ordering him to cease debris removal

activities, as he did not possess a Class D motor carrier certificate.

¶4 Noland ceased activities which required a Class D motor carrier certificate and

applied—through PBN LLC—for a license with the Commission. He then received

requests from existing Class D certificate holders, asking him to provide his financial

information, including tax returns, revenues, and financial statements. Eventually, Noland

determined going through the administrative proceedings was cost prohibitive and

withdrew his application. Since then, Noland has been providing transportation services

which do not require a Class D motor carrier certificate.

¶5 After withdrawing his application, Noland filed an action for declaratory judgment

in the Eleventh District Court for the Flathead County under the Uniform Declaratory

Judgments Act, seeking to declare two provisions of the Montana Motor Carrier laws

unconstitutional. An existing Class D Motor Carrier Certificate holder, Evergreen

Disposal, intervened in the case, seeking to uphold the existing certification procedure. In

his suit, Noland challenged § 69-12-323(2)(a)(iii), (2)(b), and (3), MCA, which requires

the Commission to consider the need for his services before approving his application for

a Class D motor carrier certificate. Additionally, Noland challenged the ability of current

Class D motor carriers to protest an application under § 69-12-321(1)(a)–(c), MCA. The

Commission uses four elements, derived from § 69-12-323, MCA, to define public

convenience and necessity: (1) an applicant presents a particular service is needed; (2) the

existing motor carrier itself is not willing or able to meet the need; (3) the applicant will

not bring harm to the incumbent motor carrier such that public interest is harmed; and

4 (4) the fitness of the applicant. Noland alleges these provisions, collectively called “public

convenience and necessity” or “PCN” provisions, infringed on his rights protected under

the Montana and United States Constitutions. Noland argues the PCN provisions violate:

(1) the “right[] of pursuing life’s basic necessities” under Article II, Section 3, of the

Montana Constitution, (2) Due Process Clause of Article II, Section 17, of the Montana

Constitution, (3) Equal Protection Clause under Article II Section 4, of the Montana

Constitution, and (4) the federal Due Process and Equal Protection Clauses of the

Fourteenth Amendment to the United States Constitution. Noland argues the PCN

provisions are both unconstitutional as applied to him, and facially unconstitutional.1

¶6 After discovery, both Noland and the Defendants moved for summary judgment.

The District Court granted summary judgment in favor of the Defendants and denied

Noland’s motion for summary judgment. The court held Noland lacked standing to assert

his as-applied challenges. Noland was specifically seeking to vindicate a future injury

which would occur if he was to reapply, and not his prior injury. As such, the court

concluded Noland failed to demonstrate how the provisions would be unconstitutionally

applied to him. The court further held Noland had standing to assert an as-applied

challenge, but then ruled the provisions were not facially unconstitutional, since the

Commission has previously approved other prior applications for a certificate. The District

1 During the 2025 legislative session, a bill was proposed to amend § 69-12-301, MCA, to exclude Noland, and others similarly situated, from having to obtain a Class D certificate. HB 596, 69th Legislature, Reg. Sess. (Mont. 2025). The bill did not pass. 5 Court dismissed Noland’s claims. Noland now appeals the District Court’s Order on Cross

Motions for Summary Judgment.

STANDARD OF REVIEW

¶7 This Court reviews de novo a district court’s grant or denial of summary judgment,

applying the criteria of M. R. Civ. P. 56(c). Stipe v. First Interstate Bank–Polson, 2008 MT

239, ¶ 10, 344 Mont. 435, 188 P.3d 1063. Summary judgment is appropriate when the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

any affidavits, demonstrate no genuine issue of material fact exists and the moving party

is entitled to judgment as a matter of law. Stipe, ¶ 10 (quoting M. R. Civ. P. 56(c)). “A

de novo review affords no deference to the district court’s decision and we independently

review the record, using the same criteria used by the district court to determine whether

summary judgment is appropriate.” Siebken v. Voderberg, 2012 MT 291, ¶ 20, 367 Mont.

344, 291 P.3d 572. We view the evidence in the light most favorable to the non-moving

party and draw all reasonable inferences from the offered proof in favor of the non-moving

party. Stipe, ¶ 10.

DISCUSSION

¶8 Issue One: Whether Noland has standing to challenge the public convenience and necessity provisions of the Montana Motor Carrier law.

¶9 Standing refers to a litigant’s right to be heard in court. We have recognized that

like the federal courts, state courts are held to only determine “justiciable controversies”

under the Montana Constitution, and do not issue advisory opinions. Plan Helena, Inc. v.

Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶ 6, 355 Mont. 142, 226 P.3d 567 (citation

6 omitted). Article VII, Section 4, of the Montana Constitution vests district courts with

original jurisdiction in “all civil matters and cases at law and in equity.” Mont. Const.

art. VII, § 4(1). The “cases at law and in equity” language of Article VII embodies the

same limitations for courts to hear “cases or controversies” as stated in Article III of the

United States Constitution. Plan Helena, Inc., ¶ 6. Thus, federal precedents of

justiciability are persuasive authority for this Court. Plan Helena, Inc., ¶ 6. Indeed, we

acknowledge our standing jurisprudence is rooted in the case of controversy requirements

of the United States Constitution. Druffel v. Bd. of Adjustment, 2007 MT 220, ¶ 14,

339 Mont. 57, 168 P.3d 640 (citing Stewart v. Bd. of Cnty. Comm’rs of Big Horn Cnty.,

175 Mont. 197, 200, 573 P.2d 184, 186 (1977)).

¶10 Standing is the question of whether a litigant has the right to seek judicial resolution

of a dispute. Standing doctrine includes the concepts of actual standing and prudential

standing. Bullock v. Fox, 2019 MT 50, ¶ 28, 395 Mont. 35, 435 P.3d 1187. Actual

standing requires the plaintiff to “clearly allege a past, present, or threatened injury to a

property or civil right,” and the lawsuit must be capable of alleviating the injury. Heffernan

v. Missoula City Council, 2011 MT 91, ¶ 33, 360 Mont. 207, 255 P.3d 80 (citations

omitted). Federal courts require three distinct elements to meet the United States

constitutional case or controversy standing threshold: “injury in fact (a concrete harm that

is actual or imminent, not conjectural or hypothetical), causation (a fairly traceable

connection between the injury and the conduct complained of), and redressability (a

likelihood that the requested relief will redress the alleged injury).” Heffernan, ¶ 32 (citing

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); Steel Co. v. Citizens for a

7 Better Env., 523 U.S. 82, 103 (1988)). Though we often list our standing rule as two

elements, we explained in Larson v. State By and Through Stapleton, standing requires a

“direct causal connection between the alleged illegality and specific and definite harm

personally suffered, or likely to be personally suffered, by the plaintiff.” 2019 MT 28,

¶ 46, 394 Mont. 167, 434 P.3d 241.

¶11 Additionally, as a prudential matter, courts will not adjudicate generalized

grievances more appropriately addressed in the representative branches, political questions

inappropriate for judicial determination, and questions not yet ripe for review or which are

moot. See Schoof v. Nesbit, 2014 MT 6, ¶¶ 20–21, 373 Mont. 226, 316 P.3d 831 (clarifying

the prudential requirement that an alleged injury be distinct from injury to the public in

general); Larson, ¶ 18.

¶12 Noland seeks a declaratory judgment finding the PCN provisions both facially

unconstitutional and unconstitutional as-applied to him. A statute can be facially

unconstitutional or unconstitutional as-applied to a plaintiff. Broad Reach Power, LLC v.

Mont. Dep’t of Pub. Serv. Regul., Pub. Serv. Comm’n, 2022 MT 227, ¶ 11, 410 Mont. 450,

520 P.3d 301. To be facially unconstitutional, it must be demonstrated there is no set of

circumstances in which the statute could be constitutionally applied. Facial challenges are

not dependent on the facts of a particular case, because the statute would be

unconstitutional in all cases. Broad Reach Power, ¶ 11. A statute may also be

unconstitutional as-applied in a particular case, and plaintiffs must show, under the facts

of their case, the application of the statute violates their rights. Broad Reach Power, ¶ 11.

The District Court relied on Broad Reach Power to conclude Noland did not have standing

8 to bring an as-applied challenge because there was “no record of how the Commission

applied the statutes to him.” However, the court concluded Noland had standing to bring

a facial challenge because “facial challenges are not dependent on the facts of a particular

case.”

¶13 Noland does not challenge the prior submission of his application and the PCN

provisions being enforced against him during that application. Instead, Noland argues he

is still interested in conducting debris removal and applying for a Class D motor carrier

certificate, and the provisions he challenges will be enforced against him in any future

application. This is a pre-enforcement challenge to the statute, where Noland argues the

law is unconstitutional before re-engaging in the offending behavior to avoid having it

enforced against him. See Gryczan v. State, 283 Mont. 433, 942 P.3d 112 (1997); Lee v.

State, 195 Mont. 1, 635 P.2d 1282 (1981).

¶14 Noland’s pre-enforcement challenge raises an issue with his injury in fact. A

plaintiff must allege the injury is concrete and particularized, and the injury is actual or

imminent. Heffernan, ¶ 32. “At an irreducible minimum,” the plaintiff must show he “has

suffered a past, present, or threatened injury to a property or civil right, and that the injury

would be alleviated by successfully maintaining the action.” Mitchell v. Glacier Cnty.,

2017 MT 258, ¶ 10, 389 Mont. 122, 406 P.3d 427.

¶15 Noland, and both Defendants, predominantly base their standing arguments on a

pair of cases, Gryczan, and Broad Reach Power, where we addressed pre-enforcement

challenges. In Gryczan, six plaintiffs alleged a state law prohibiting same-sex sexual

conduct between consenting adults was unconstitutional. Gryczan, 283 Mont. at 438,

9 942 P.2d at 115. They sought a declaratory judgment declaring Montana’s

“deviate-sexual-conduct” statute unconstitutional as applied to them. Gryczan, 283 Mont.

at 438, 942 P.2d at 115. This Court grappled with whether the plaintiffs had standing, as

the criminal statute had not been enforced before. This Court noted: (1) the statute was

only 24 years old and had been amended within the prior 5 years; (2) there was nothing in

the statute to prevent a county attorney from enforcing the statute; and (3) the state had not

disavowed future enforcement; thus, the Court determined the plaintiffs had a legally

cognizable injury. Gryczan, 283 Mont. at 443–46, 942 P.2d at 118–20. We reiterated

where the “fear of criminal prosecution under an allegedly unconstitutional statute is not

imaginary or wholly speculative[,] a plaintiff need not first expose himself to actual arrest

or prosecution to be entitled to challenge the statute.” Gryczan, 283 Mont. at 445, 942 P.2d

at 119 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302, 99 S. Ct.

2301, 2310–11 (1979)).

¶16 More recently, we faced this issue in Broad Reach Power. There, two energy

companies were seeking a declaratory judgment against the Public Service Commission,

arguing the Commission’s procedures in a contested case violated the companies’ due

process guarantees. Broad Reach Power, ¶ 3. The parties did not conduct discovery,

instead moving straight to summary judgment. Broad Reach Power, ¶ 5. The district court

held the energy companies lacked standing, failing to meet their burden to allege a due

process violation. Broad Reach Power, ¶ 5. We affirmed the district court’s holding on

the standing requirements. Broad Reach Power, ¶ 13–14. In analyzing the energy

10 companies’ injury, this Court noted a plaintiff may not bring an “as-applied challenge in a

vacuum.” Broad Reach Power, ¶ 13. The Court explained:

[T]he PSC ‘may’ employ certain hearing actions pursuant to the statute[, this] does not establish how the PSC acted with regard to [the power companies], and to what prejudice. Thus, there are simply no facts within this record on which to adjudicate an as-applied constitutional challenge to the statute. Consequently, the declaratory request is speculative, and would require issuance of an advisory opinion.

Broad Reach Power, ¶ 13. Without a particular claim on how the PSC would violate the

Due Process Clause, and support in the record to prove the violation, this Court denied

standing. Broad Reach Power, ¶ 13, see generally Safer Chemicals, Healthy Families v.

EPA, 943 F.3d 397 (9th Cir. 2019) (Plaintiffs challenging agency rules did not have

standing when “it is not even clear what [the agency’s] procedures will be, let alone

whether [the agency] will employ them in a way that injures” the plaintiffs.).

¶17 To establish standing for an as-applied challenge, a plaintiff must articulate conduct

and connect it to a constitutional right. Here, Noland seeks to vindicate: (1) the right to

pursue life’s basic necessities; (2) right to due process; (3) right to equal protection; and

(4) the federal rights of due process and equal protection under the Fourteenth Amendment.

He makes a nonfrivolous but bare legal argument connecting his intended activity—

establishing a for-profit business to haul construction waste—to those constitutional rights.

He relies on Wadsworth v. State, 275 Mont. 287, 911 P.2d 1165 (1996), to argue his

business of hauling trash for profit is protected under the “life’s basic necessities” clause.

See also Mont. Const. art II, § 3 (“All persons are born free and have certain inalienable

rights. They include . . . the right[] of pursuing life’s basic necessities . . . .”). He then

11 argues the PCN provisions do not meet strict scrutiny because they are not narrowly

tailored to a compelling state interest.

¶18 Oddly, Noland abandoned his previous Class D application and therefore did not

exhaust his administrative remedies, a necessary condition before seeking judicial review

of a Commission action. Hilands Golf Club v. Ashmore, 277 Mont. 324, 331, 922 P.2d

469, 472–73 (1996). He had the ideal opportunity to challenge the PCN statute as it was

applied to him, but he chose not to. He instead retreated from the litigation and ceased his

business operations which implicated the need for a Class D motor carrier license. Now

he essentially asks this Court for an advisory opinion as to how the Commission may have

implemented its procedures to violate his constitutional rights. He repeats the same process

we rejected in Broad Reach Power, ¶ 13, an “as-applied challenge in a vacuum.” Noland’s

conduct gives the court no basis to render an advisory opinion on his as-applied challenge.

¶19 Doing so has run him afoul of two of our prior case holdings. The first is Sagorin

v. Sunrise Heating and Cooling, LLC, 2022 MT 58, 408 Mont. 119, 506 P.3d 1028.

Sagorin was sole member of Yellowstone Lodging, LLC, who had a contract dispute with

several heating ventilation and cooling contractors. Sagorin, ¶¶ 2–3. The dispute

concerned work on property owned by the LLC, but Sagorin initiated a suit pro se with

himself as the plaintiff, not the corporate entity. Sagorin, ¶ 3. When the defendants filed

a motion to dismiss for lack Sagorin’s standing to pursue claims on behalf of Yellowstone

Lodging, LLC, Sagorin filed a document purporting to assign all of Yellowstone Lodging,

LLC’s interests to himself. Sagorin, ¶ 3.

12 ¶20 The District Court granted the motion to dismiss for lack of standing, and we

affirmed. Sagorin, ¶ 20. We held an LLC’s assignment of claims even to its sole member

“does not confer standing on the member to assert those claims.” Sagorin, ¶ 17. We further

held that Sagorin has not met the constitutional or prudential standing requirements

because Yellowstone Lodging, LLC was allegedly injured, not Sagorin. Sagorin,

¶¶ 19–20. While “he may feel he has a personal stake in the outcome of the controversy”

the claims belong to the LLC and Sagorin has not demonstrated he personally suffered an

injury that would be alleviated by a court action. Sagorin, ¶ 20.

¶21 In this case, PBN, LLC, was the corporate entity that initiated the work which ran

afoul of the purpose and need statute, and PBN was the entity that applied for a license

with the Commission. PBN suffered the alleged injury of receiving discovery demands

from competitors and faced the prospect of onerous administrative hearings. If there is a

threatened injury subject to lawsuit, PBN was the entity who suffered it. PBN had the

statutory right to judicial review of any negative agency proceeding, but chose not to utilize

it, thus depriving the corporate entity of standing to challenge the Commission’s ostensibly

burdensome decision. Druffel, ¶ 16.

¶22 Just like in Sagorin, Noland is the sole member of the LLC and he may feel like he

personally suffered the injury and has a personal stake in the outcome. But for standing

purposes, he does not. The Commission’s and competitor’s conduct was directed toward

PBN’s application. Noland could receive a favorable ruling on an as-applied challenge,

and that would not bar the Commission from requiring PBN’s application to submit to the

administrative hurdles.

13 ¶23 Since the threatened injury to PBN is not before us, we now confront the threatened

injury facing Noland, if in fact he were to apply personally to the Commission for a Class

D certificate. Noland then runs into our second case problematic precedent. He asks us to

grant the relief we rejected in Broad Reach Power, ¶ 13, an “as-applied challenge in a

vacuum.” Since there is no record of how the Commission’s enforcement may be applied

to him, Noland asks this Court for an advisory opinion as to how the PSC may implement

its procedures in the future, and how this implementation may affect his constitutional

rights. He asks this Court to entertain an as-applied challenge striking down the purpose

and need statute without any “facts within this record on which to adjudicate an as-applied

constitutional challenge to the statute.” Broad Reach Power, ¶ 13.

¶24 Noland’s end run around our administrative exhaustion precedent leaves him asking

the Court to issue a ruling on the Commission’s procedure without the Commission

actually applying the procedure against him. On summary judgment, Noland must show

there is no dispute as to the material facts and he is entitled to a ruling as a matter of law.

Noland’s factual allegations, while undisputed, were mere speculation as to how the

commission will apply its procedure against him under a “hypothetical state of facts.”

In Re Big Foot Dumpsters & Containers, LLC, 2022 MT 67, ¶ 13, 408 Mont. 187, 507 P.3d

169. We would be required to imagine in theory how the Commission enforced the law

against Noland, and to manufacture the arguments and impacts such proceedings may have

on Noland’s constitutional rights. It truly would be a “hypothetical state of facts” upon

which to render an opinion. The District Court correctly determined it could not analyze a

14 fact-specific as-applied challenge when the suspect law had not actually been applied and

could not therefore by analyzed.

¶25 Issue Two: Whether the District Court correctly determined Noland’s facial challenge failed because some applicants received a Class D motor carrier certificate.

¶26 Noland additionally argues the PCN provisions are facially unconstitutional. The

District Court held Noland has standing to bring a facial challenge because “facial

challenges are not dependent on the facts of a particular case.” However, facial challenges

are still dependent upon the plaintiff alleging an injury in fact, causation, and redressability.

See, e.g., Advocates for Sch. Tr. Lands v. State, 2022 MT 46, ¶ 19, 408 Mont. 39, 505 P.3d

825 (applying standing and ripeness principles to a facial challenge); Park Cnty. Envtl.

Council v. Montana Dep’t of Envtl. Quality, 2020 MT 303, ¶¶ 23–24, 402 Mont. 168,

77 P.3d 288, superseded by statute on different grounds (determining whether an

organization has an injury-in-fact before addressing its facial challenge).

¶27 The distinction between a challenged provision’s facial and as-applied

constitutionality has no “automatic effect” on pleading, but rather “goes to the breadth of

the remedy employed by the Court.” Citizens United v. Fed. Election Comm’n, 558 U.S.

310, 331, 130 S. Ct. 876, 893 (2010). To obtain the remedy of striking an entire statute as

facially unconstitutional, “challenger [must] demonstrate that ‘no set of circumstances

exists under which the challenged sections would be valid.’” City of Missoula v. Mountain

Water Co., 2018 MT 139, ¶ 21, 391 Mont. 422, 419 P.3d 685 (quoting Montana Cannabis

Indus. Ass’n v. State, 2016 MT 44, ¶ 14, 382 Mont. 256, 368 P.3d 1131). If the challenger

15 carries that burden of proof beyond a reasonable doubt, then the offending statute “cannot

be enforced under any circumstances.” Mountain Water Co., ¶ 21.

¶28 A plaintiff would still be barred from bringing a facial challenge to a statute if he

failed to show he is aggrieved by that statute. In Lee, we held a driver had standing to bring

a pre-enforcement facial challenge to an illegally-enacted speed limit, even though he had

not yet been prosecuted for violating it. Lee, 195 Mont. at 6, 635 P.2d at 1284–85. The

Legislature had delegated authority to the Attorney General to establish the new state-wide

speed limit. Lee, 195 Mont. at 9, 635 P.2d at 1286. This unconstitutional delegation of

powers made the speed limit illegal per se, regardless of the actual limits imposed or how

it was enforced. Lee, 195 Mont. at 7, 635 P.2d at 1285. Lee successfully demonstrated he

was directly affected by the law he was challenging. There was no dispute the new speed

limit would be enforced statewide against all motorists—including Lee—upon its effective

date. Lee, 195 Mont. at 7, 635 P.2d at 1285.

¶29 Unlike the as-applied challenge, where Noland failed to demonstrate a record of

how the purpose and need statute would be applied against him, here Noland has plausibly

alleged there is a credible threat of enforcement of the PCN provisions against him. In the

past decade, 17 out of the 24 applications were protested, with the remaining receiving no

protest or a protest being withdrawn. While the previous enforcement actions against PBN

do not produce a cognizable injury for Noland personally, they do demonstrate there are

competitors in the Flathead County area that are likely to challenge the emergence of any

new competitor. The prior action also shows the Commission is likely to respond to

16 complaints or objections by competitors in an existing regulated service area. There is a

clear history of past enforcement.

¶30 Second, granting private enforcement of the PCN provisions heightens, not lessens,

the risk of enforcement. “The credibility of [a] threat [of enforcement] is bolstered by the

fact that authority to file a complaint with the Commission is not limited to a prosecutor or

an agency.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164, 134 S. Ct. 2334, 2345

(2014). By expanding the number of parties which may intervene in an application and

seek sensitive company information from an applicant, the threat of enforcement is also

expanded.

¶31 Lastly, even if no objection is filed, the Commission must still consider need in

every application filed with the Commission. Sections 69-12-321, through -327, MCA;

§§ 38.3.401 through 406, Admin. R. M. There is little doubt Noland, or any other similarly

situated future applicant for a Class D certificate, will face Commission enforcement.

Noland alleges this enforcement action, including the requirement to show a need for the

business and respond to discovery requests, is what infringes upon his constitutional rights.

¶32 But Noland’s alleged injury is not merely the procedural requirement to satisfy the

purpose and need inquiry. Rather, Noland’s alleged injury is an infringement upon his

constitutional right to earn a living and enjoy equal protection of the law. The purpose and

need inquiry is merely the alleged mechanism causing the injury to Noland’s (or other

applicant’s) constitutional rights. As discussed above, Noland cannot advance an

as-applied challenge to the statute because he did not navigate the application process and

therefore cannot connect the allegedly injurious mechanism to his particular constitutional

17 harm. But Noland can argue the statute is facially unconstitutional because the statute

limits his or any applicant’s ability to practice their profession by injecting monopolistic

considerations into the application.

¶33 The District Court found Noland failed his facial challenge because some applicants

were granted an application in spite of protests filed against them. However, the District

Court misunderstands the gravamen of Noland’s injury argument. It is not merely the

ultimate denial of a permit which causes his injury, but also the procedure which requires

he shows need to obtain a Class D certificate. In Ne. Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville, an association sued the City of Jacksonville,

Florida, challenging the city’s policy to set aside 10% of the city’s contracts to

minority-owned businesses. 508 U.S. 656, 659, 113 S. Ct. 2297, 2299 (1993). The Court

held the ultimate injury was “the denial of equal treatment resulting from the imposition of

the barrier, not the ultimate inability to obtain the benefit.” Ne. Fla. Chapter of Associated

Gen. Contractors of Am., 508 U.S. at 666, 113 S. Ct. at 2303. The action causing the equal

protection injury was not solely the ultimate denial, but also the allegedly unconstitutional

process tipping the scales in favor of certain contractors. Similarly here, Noland’s obstacle

is not the ultimate rejection, but the procedure which he avers unconstitutionally limits his

ability to obtain a Class D certificate and work in his chosen occupation.

¶34 Our review of the District Court comes after a ruling on summary judgment, when

the court ruled the Defendants were entitled to judgment as a matter of law and Noland had

demonstrated no genuine issues of material fact withstanding the order.

M. R. Civ. P. 56(c). When reviewing a motion for summary judgment de novo, we apply

18 the same criteria as the district court, view the evidence in the light most favorable to the

non-moving party, and we draw all reasonable inferences in favor of the non-moving party.

Stipe, ¶ 10. Under that standard of review and analyzing the evidence, we hold the District

Court erred when it held Noland’s facial constitutional challenge failed because some

applicants received a Class D certificate. Such a ruling was focused upon the factual issue

of the Commission outcomes but did not view Noland’s argument as to the procedural

constitutional burden in the light most favorable to the non-moving party. Where the

application process itself is the mechanism of injury, regardless of ultimate outcome, the

court must apply the relevant constitutional standards of review to the procedure as well as

the results, and must draw all reasonable inferences in favor of the non-moving party on

these fact issues.

¶35 We decline Noland’s invitation to rule on the merits of the case. Surviving a

summary judgment ruling on standing is not the same as a final determination on the merits

of the case. The merits of each of the three facial constitutional challenges have not been

developed or adjudicated at the District Court level. Noland may have asserted an injurious

procedural mechanism to his constitutional rights, but he has not proven it yet. He has to

do more than merely claim a procedural statute harms his rights; he needs to prove a chain

of causation from the statutory procedural burden to an unconstitutional infringement of

an applicant’s rights to pursue life’s basic necessities, enjoy equal protection under the law,

and be afforded due process of the law. See 350 Montana v. State, 2023 MT 87, ¶ 19,

412 Mont. 273, 529 P.3d 847 (requiring proof of an economic injury from the challenged

procedural requirements).

19 ¶36 Having found Noland’s facial challenge is not defeated simply because certain

applicants were granted a Class D certificate, we remand the case for further analysis by

the District Court on each constitutional provision.

CONCLUSION

¶37 We affirm the District Court order denying Noland’s as-applied constitutional

challenge for lack of standing. We reverse the order denying Noland’s facial challenge.

We hold he has standing to challenge the purpose and need statute. We remand the case

for further consideration of his facial challenge.

/S/ CORY J. SWANSON

We Concur:

/S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE

Justice Laurie McKinnon, specially concurring.

¶38 I specially concur in the Court’s Opinion. I write separately to clarify the proper

standing analysis under Montana law. My disagreement with portions of the Court’s

analysis is doctrinal rather than outcome-determinative.

¶39 I would affirm the District Court’s conclusion that Noland lacks standing to bring

his as-applied challenge, but I would do so on grounds that are consistent with Montana

law and different from those in the District Court’s Order and the Court’s Opinion.

Additionally, I would affirm the District Court’s conclusion that Noland has standing to

bring his facial challenge, but I would reverse the District Court’s decision that the facial

20 challenge ultimately fails because the court determined the challenged statutes are not

unconstitutional in all cases. Noland argues that the notice, protest, and hearing procedures

are unconstitutional; specifically, that the application process the Commission uses to

decide who can get a license is unconstitutional. Those procedures apply in every case.

Thus, that some applicants can obtain a certificate without incumbent garbage haulers filing

a protest misstates Noland’s claim. Noland does not challenge the requirement that he

obtain a certificate––he challenges (1) the requirement that he demonstrate there is a “need”

for a new garbage hauler and (2) the ability of incumbents to file protests. These provisions

apply to every application. His challenge is based on: (1) Article II, Section 3, of the

Montana Constitution, which provides that all people have the inalienable right to “pursu[e]

life’s basic necessities[;]” Article II, Section 17, of the Montana Constitution, which

provides “[n]o person shall be deprived of life, liberty, or property without due process of

law[;]” and Article II, Section 4, of the Montana Constitution, which provides that “[n]o

person shall be denied the equal protection of the laws.” He additionally raises claims

under the federal Due Process or Equal Protection Clause. The parties do not argue that

there are disputes of facts, and there is a full factual record that has been developed through

ample discovery. The District Court likewise determined there was no factual dispute and

that the case could be resolved on summary judgment. Although this Court can “affirm,

reverse, or modify any judgment . . . and direct proper judgment to be entered[,]”

§ 3-2-204(1), MCA, the more prudent course would be for the trial court to first provide

its reasoning and analysis addressing the merits of Noland’s claims. Accordingly, I would

21 remand for the District Court to provide a decision on the merits of each claim based on

the record before it.

Standing to raise an as-applied challenge.

¶40 While it is true that standing must exist in every case regardless of the type of

challenge brought,1 our precedent establishes that the standing considerations for an

as-applied challenge and a facial challenge differ. See Broad Reach Power, LLC v. Mont.

Dep’t of Pub. Serv. Regul., 2022 MT 227, ¶ 11, 410 Mont. 450, 520 P.3d 301 (explaining

that as-applied challenges rely on specific facts, but “facial challenges are not dependent

on the facts of a particular case”). Indeed, the District Court held that Noland does not

have standing to bring an as-applied challenge, but Noland has standing to bring a facial

challenge. I would bifurcate the issues and apply our Montana standing precedent to each

challenge distinctly. See Held v. State, 2024 MT 312, ¶ 54 n. 9, 419 Mont. 403, 560 P.3d

1235 (suggesting that standing must exist in all cases, but the allegations required to confer

standing in the as-applied context and facial context differ).

¶41 While Article VII, Section 4(1), of the Montana Constitution “embodies the same

limitations as are imposed on federal courts by the ‘case or controversy’ language of

Article III” of the United States Constitution, Montana’s standing test differs from those

that apply in the federal courts. Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd.,

2010 MT 26, ¶ 6, 355 Mont. 142, 226 P.3d 567; Heffernan v. Missoula City Council,

1 At the standing stage, the Court does not assess whether the challenged provisions are constitutional, but only whether the plaintiff has alleged a sufficiently concrete injury to permit judicial resolution of the question. 22 2011 MT 91, ¶¶ 32-33, 360 Mont. 207, 255 P.3d 80. Justiciability is broad and has more

specific doctrines, including, for example, standing, ripeness, and mootness. Plan Helena,

Inc., ¶ 8. In Heffernan, we explained that in Montana “there are in fact two strands to

standing: the case-or-controversy requirement imposed by the [Montana] Constitution, and

judicially self-imposed prudential limitations.” Heffernan, ¶ 31. We explained that in

federal courts, standing has three elements—injury in fact, causation, and redressability.

Heffernan, ¶ 32. However, we then noted that “[s]imilarly, in Montana, to meet the

constitutional case-or-controversy requirement, the plaintiff must clearly allege a past,

present, or threatened injury to a property or civil right.” Heffernan, ¶ 33 (emphasis added).

Montana’s standing inquiry focuses on whether the plaintiff has clearly alleged a past,

present, or threatened injury that is sufficiently concrete to avoid advisory adjudication.

Gryczan v. State, 283 Mont. 433, 443-45, 942 P.2d 112, 118-19 (1997).

¶42 The District Court properly identified Montana’s case-or-controversy requirement.

The District Court, relying on Broad Reach Power, LLC, concluded that Noland lacks

standing to bring his as-applied challenge because no record exists of how the Commission

applied the statutes to Noland, individually. Although Broad Reach Power, LLC involved

an as-applied challenge to a statute, I contend the District Court conflated standing and

merits by relying solely on Broad Reach Power, LLC to conclude that Noland lacks

standing to bring his as-applied challenge.

¶43 In Broad Reach Power, LLC, we considered whether two utility companies had

standing to bring an as-applied challenge to the Public Service Commission’s (“PSC”) case

procedures. Broad Reach Power, LLC, ¶ 3. The companies believed that the challenged

23 statute was unconstitutional because it purportedly allowed the PSC to take procedural

actions that violated their due process rights. Broad Reach Power, LLC, ¶ 11. We

determined that the companies had “essentially brought their as-applied challenge in a

vacuum” and concluded that the companies lacked standing to bring their as-applied

challenge. Broad Reach Power, LLC, ¶ 13.

¶44 The District Court found the circumstances in Broad Reach Power, LLC analogous

to the situation here and reasoned that since Noland himself did not apply for a Class D

certificate, no facts exist to support a determination that the challenged provisions are

unconstitutional as applied to Noland. However, Noland’s as-applied challenge is different

from the one brought by the companies. The companies in Broad Reach Power, LLC

argued that “the PSC could apply the statute in a manner that would ‘guarantee

impartiality’ and not violate Appellants’ due process rights, and thus they contend[ed] the

statute is unconstitutional in the way the PSC is currently applying it.” Broad Reach

Power, LLC, ¶ 12. Two points are noteworthy about the companies’ argument. First, they

conceded that the statute was capable of being constitutionally applied and acknowledged

that it was not guaranteed that the statute would be applied to them unconstitutionally:

Noland has not done so. Second, the companies were not specifically bringing a

pre-enforcement challenge: they argued that the statute was unconstitutional as it was

currently being applied. This latter point was what made the companies’ lack of evidence

a standing issue. While the companies argued that the challenged statute was presently

being unconstitutionally applied to them, the companies could point to no evidence in the

record to support their allegations. Broad Reach Power, LLC, ¶ 13 (explaining that the

24 companies failed to “establish how the PSC acted with regard” to them “and to what

prejudice”). Particularly, the parties had not engaged in discovery, the companies had not

developed a factual record of how the PSC applied the challenged statute to them, and there

was no factual demonstration “of how such an application of the statute violated their due

process right to a fair and impartial hearing.” Broad Reach Power, LLC, ¶¶ 3, 13.

¶45 Contrastingly, Noland’s as-applied challenge is forward-looking: he is seeking

prospective relief regarding allegedly unconstitutional statutes that are not currently being

applied to him. Noland contends that if he applies for a Class D certificate, he will be

subject to the need requirement and protest procedures and at that point, the provisions

would be unconstitutionally applied to him. He believes he should not have to subject

himself to an allegedly unconstitutional application process in order to have standing to

bring an as-applied challenge. Since Broad Reach Power, LLC did not clearly analyze a

pre-enforcement challenge, it does not offer much guidance in deciding whether Noland

has standing. The question here is not whether we have a sufficient record to determine if

Noland has suffered harm. The key inquiry is whether Noland has clearly alleged a

threatened injury sufficient to confer him standing to bring an as-applied challenge: can

Noland bring his as-applied challenge before he has applied for the certificate?2 Gryczan

and its progeny best guide this analysis.

2 PBN LLC, the entity formed by Noland for his trash hauling services, applied for a Class D certificate. However, the application was withdrawn because Noland found the process too cost prohibitive. PBN LLC is not a party to this suit. Instead, Noland’s claims are all brought in his individual capacity, and he is seeking relief for threatened injury to himself in a future application. 25 ¶46 In Gryczan, we considered whether the plaintiffs had standing to bring an as-applied

challenge to § 45-5-505, MCA (1993), the statute that criminalized consensual sex between

adults of the same gender, when the statute had not specifically been enforced against them.

Gryczan, 283 Mont. at 438, 440, 942 P.2d at 115, 117. The plaintiffs had engaged and

intended in the future to engage in conduct that violated the statute. Gryczan, 283 Mont.

at 439, 942 P.2d at 115-16. The State argued that the plaintiffs lacked standing to bring an

as-applied challenge because they were not under “a credible threat of prosecution under

the statute” since no one had been prosecuted under the statute since its enactment.

Gryczan, 283 Mont. at 441, 942 P.2d at 117. The plaintiffs responded that the lack of

enforcement of the statute should not bar them from bringing an as-applied challenge

because the mere existence of the statute constituted injury, and they were at constant risk

of prosecution. Gryczan, 283 Mont. at 441, 942 P.2d at 117.

¶47 The Court explained Montana’s case-or-controversy requirement: the plaintiff

“must clearly allege past, present, or threatened injury to a property or civil right” in order

to have standing. Gryczan, 283 Mont. at 442, 942 P.2d at 118. The Court provided that

“when fear of criminal prosecution under an allegedly unconstitutional statute is not

imaginary or wholly speculative[,] a plaintiff need not first expose himself to actual arrest

or prosecution to be entitled to challenge [the] statute.” Gryczan, 283 Mont. at 445,

942 P.2d at 119 (quotations omitted) (citing Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 302, 99 S. Ct. 2301, 2310-11 (1979)). We concluded that the plaintiffs met

the case-or-controversy requirement because the statute was directly aimed at them as a

26 targeted group of citizens and created a “fear of prosecution sufficient to confer standing.”

Gryczan, 283 Mont. at 445, 942 P.2d at 119.

¶48 The State argues that Gryczan is inapplicable because it involved a criminal statute.

This is also incorrect. Although Gryczan involved a criminal statute, the

case-or-controversy requirement does not rely on a criminal/civil statute distinction. Our

case-or-controversy requirement has been consistently cited and applied for decades, in

both cases that challenged criminal statutes and cases that challenged civil statutes. See,

e.g., Held, ¶ 32, 350 Mont. v. State, 2023 MT 87, ¶ 15, 412 Mont. 273, 529 P.3d 847;

Weems v. State, 2019 MT 98, ¶¶ 9, 11, 395 Mont. 350, 440 P.3d 4; Reichert v. State,

2012 MT 111, ¶ 55, 365 Mont. 92, 278 P.3d 455; Heffernan, ¶ 33. Recently, we cited the

same case-or-controversy rule. Gottlob v. Desrosier, 2025 MT 56, ¶ 14, 421 Mont. 176,

565 P.3d 1196. We explained:

Constitutional standing requires that the plaintiff show she “has suffered a past, present, or threatened injury to a property or civil right, and that the injury would be alleviated by successfully maintaining the action.” This injury must be concrete—that is, it must be actual or imminent, not conjectural or hypothetical.

Gottlob, ¶ 14 (citations and quotations omitted). Our case-or-controversy requirement is

explicit. While federal principles of what constitutes an injury have and may be persuasive

authority in aiding us in determining standing in a particular case, we need not incorporate

the specific federal framework to determine if a plaintiff’s injury is sufficiently concrete.

¶49 Noland is bringing a pre-enforcement challenge to the need requirement and protest

procedure. Therefore, to have standing, he must have clearly alleged a threatened injury

to his rights—one that is sufficiently imminent and not hypothetical. Noland argues that

27 his situation is analogous—and even more straightforward—than the plaintiffs’ situation

in Gryczan. He believes that the mere existence of the provisions burdens his ability to

engage in his desired conduct just as the statute in Gryczan burdened the plaintiffs’ ability

to engage in their desired conduct. Unlike the plaintiffs in Gryczan, Noland is not currently

within the regulated class to which the need requirement and protest procedures apply. His

alleged injury depends on future contingencies, and therefore lacks the immediacy required

to confer standing for an as-applied challenge. In Gryczan, the plaintiffs were under the

constant threat of arrest and prosecution: they were presently subject to the statute they

challenged. Gryczan, 297 Mont. at 445, 942 P.2d at 119. Yet, here, Noland is not currently

operating in violation of the Class D certificate requirement nor has he applied in his

individual capacity for a certificate. Noland’s threatened injury is more imaginary and

speculative than the plaintiffs’ injury in Gryczan because he is not presently at risk of

having the need requirement and protest procedure specifically applied to him. His mere

desire to engage in prohibited conduct (operating without a certificate) is not sufficient to

confer him standing.

¶50 In Gryczan, it was important to the analysis that the plaintiffs were a part of the

specific group of citizens who were at present risk of prosecution. Gryczan, 283 Mont.

at 445, 942 P.2d at 119. Only applicants are subject to the need requirement and protest

procedures. Noland is not currently an applicant and therefore does not presently fall under

the specific group at risk of being subject to allegedly unconstitutional statutes.

Additionally, this is not a situation where denying Noland “standing would effectively

immunize the statute from constitutional review,” as it was in Gryczan. Gryczan,

28 283 Mont. at 446, 942 P.2d at 120. Once Noland applies in his individual capacity, the

threatened injury becomes imminent and concrete and would likely confer him standing

because he would fall under the specific group of citizens subject to the statutes. However,

on the present record, I would conclude that Noland’s threatened injury is too speculative

and that he lacks standing to bring an as-applied challenge. Because Montana standing

doctrine resolves this issue, there is no need to adopt or reject federal multi-factor

pre-enforcement frameworks.

¶51 Since I would conclude that Noland does not meet the case-or-controversy

requirement, I would not analyze prudential standing in the context of his as-applied

challenge. Heffernan, ¶¶ 33-34.

Standing to raise a facial challenge.

¶52 To be clear, the District Court explicitly reasoned that “Noland has standing to

challenge the statutes on their face because facial challenges are not dependent on the facts

of a particular case.” The District Court concluded that “Noland lacks standing to

challenge the statutes as applied to him but has standing to challenge the statutes on their

face.” I agree with the District Court’s analysis of this point.

¶53 “A statute can be either facially unconstitutional or unconstitutional as applied.”

Broad Reach Power, LLC, ¶ 11 (citing City of Missoula v. Mountain Water Co., 2018 MT

139, ¶¶ 21-25, 391 Mont. 422, 419 P.3d 685). While an as-applied challenge requires the

plaintiff to show that under the facts of his case, the application of the statute would violate

his rights, to succeed on a facial challenge, “it must be demonstrated there is no set of

circumstances in which the statute could be constitutionally applied[.]” Broad Reach

29 Power, LLC, ¶ 11. “[A]s such, facial challenges are not dependent on the facts of a

particular case, because the statute would be unconstitutional in all cases.” Broad Reach

Power, LLC, ¶ 11. By bringing a facial challenge, Noland is arguing that there are

constitutional infirmities inherent within the need requirement and protest procedure

notwithstanding whether the statutes are unconstitutional as applied to him.

¶54 When a party asks us to invalidate a statute on its face, the unconstitutionality “flows

from the content of the statute itself, not the particular circumstances of the litigants.” Park

Cnty. Env’t Council v. Mont. Dep’t of Env’l Quality, 2020 MT 303, ¶ 86, 402 Mont. 168,

477 P.3d 288. Therefore, the Court’s reasoning that Noland does not have standing to bring

a facial challenge because Noland has failed to provide evidence to show he has suffered

or is likely to suffer an injury in fact misses the central characteristic of a facial challenge,

which is that a facial challenge is necessarily detached from a litigant’s individual

circumstances.

¶55 In Held, we considered whether the plaintiffs had standing to bring a facial

challenge to the MEPA limitation. Held, ¶¶ 31-55. There, the Dissent took issue with the

fact that the plaintiffs had not brought their facial challenge to the statute in the context of

a specific permit. Held, ¶ 54. We clarified that while it would be necessary for the

plaintiffs to bring an as-applied challenge in the context of a specific permit, the plaintiffs

were not required to do so to raise a facial challenge. Held, ¶ 54. We distinguished the

plaintiffs’ facial challenge from the as-applied challenge brought in Broad Reach Power,

LLC, and reiterated that facial challenges are not dependent on the facts of a particular case.

Held, ¶ 54 (citing Broad Reach Power, LLC, ¶ 11).

30 ¶56 Most relevant to the situation presented here, we explained the following:

[I]n agreement with the Dissent—plaintiffs must still have standing to challenge a statute as facially unconstitutional. Plaintiffs here demonstrated standing not by alleging facts that the MEPA Limitation was unconstitutional because of how the State applied it to a particular permit but because they sufficiently alleged that the MEPA Limitation unconstitutionally infringes on their right to a clean and healthful environment. This is distinct from a common, abstract interest in the constitutionality of a law.

Held, ¶ 54 n. 9. Consequently, Noland’s ability to bring a facial challenge is tied to whether

his allegations sufficiently allege the violation of his constitutional rights in a way that is

not a common, abstract interest in the constitutionality of the need requirement and protest

procedure. This inquiry should not be confused with the ultimate merits of Noland’s facial

challenge. With facial challenges, the standing concern is whether a court can

meaningfully provide redress by declaring the challenged statutes unconstitutional. Held,

¶ 54. Noland alleges that the need requirement and protest procedure violate the following

constitutional rights: his inalienable right to pursue life’s basic necessities under the

Montana Constitution and his due process and equal protection rights under both the

Montana Constitution and the 14th Amendment to the U.S. Constitution. Additionally, his

interest in the statutes is “distinct from a common, abstract interest” because he would

operate his garbage hauling business and apply for a Class D certificate if the need

requirement and protest procedure were not enforced. From a facial challenge standpoint,

if we declare the challenged statutes unconstitutional in all cases, we would be alleviating

Noland’s alleged constitutional injury because the statutes could no longer be enforced.

See Held, ¶ 52 (finding standing for the plaintiffs’ facial challenge because “[d]eclaring

31 that law unconstitutional and enjoining the State from acting in accordance with it will

effectively alleviate . . . [the] constitutional injury” alleged by the plaintiffs (emphasis

omitted)). For the same reason the plaintiffs in Held did not need to bring their facial

challenge in the context of a specific permit, Noland need not bring his facial challenge in

the context of a specific application.

¶57 The standing analysis of Noland’s facial challenge is not resolved by acknowledging

that a court could provide redress for the alleged constitutional injuries. A court must also

analyze the “judicially self-imposed prudential limitations,” which is the second prong of

the standing requirement. Heffernan, ¶ 31. “Case-or-controversy standing limits the courts

to deciding actual, redressable controversy, while prudential standing confines the courts

to a role consistent with the separation of powers.” Bullock v. Fox, 2019 MT 50, ¶ 28,

395 Mont. 35, 435 P.3d 1187. “Prudential standing embodies the notion that courts

generally should not adjudicate matters more appropriately in the domain of the legislative

or executive branches or the reserved political power of the people.” Bullock, ¶ 43

(quotations omitted). Potentially relevant here is the prudential standing consideration that

the alleged injury must be distinguishable from the injury to the public in general. Bullock,

¶ 45; Heffernan, ¶ 33. Noland meets this consideration because he represents a small

subset of Montanans: those who desire to operate a trash hauling business and who will be

subject to, upon application, the need requirement and protest procedure. Another

prudential standing consideration is the importance of the question to the public. Barrett

v. State, 2024 MT 86, ¶ 38, 416 Mont. 226, 547 P.3d 630. This factor is easily met because

the availability of trash hauling services is important to the public, and, if certain statutes

32 unconstitutionally regulate who can offer those services, prudential considerations favor

court interpretation. Finally, Noland’s facial challenge is an issue of statutory and

constitutional interpretation—an acceptable exercise of judicial authority.

¶58 The constitutional component asks if there is sufficient injury. Advocates for Sch.

Trust Lands v. State, 2022 MT 46, ¶ 20, 408 Mont. 39, 505 P.3d 825. The prudential

component “weighs ‘the fitness of the issues for judicial decision and the hardship to the

parties of withholding court consideration.’” Advocates for Sch. Trust Lands, ¶ 20 (quoting

Reichert, ¶ 56). Here, Noland’s facial argument is that the need requirement and protest

procedure are unconstitutional in every case because they impose a barrier on every single

Class D certificate applicant. In Advocates for Sch. Trust Lands, the Court found that the

plaintiffs’ facial challenge met the prudential component because they asked the court to

find “constitutional infirmity” within the bill’s operation in every case. Advocates for Sch.

Trust Lands, ¶ 29. I believe that this argument is similar to Noland’s argument. Therefore,

I would conclude that Noland meets the prudential component of standing.

Merits of Noland’s Facial Challenge.

¶59 Since I would affirm the District Court’s conclusion that Noland has standing to

bring his facial challenge, I thus turn to the merits of his challenge. The District Court

reasoned that since there have been successful applicants who have been granted a Class D

certificate after being subject to the protest procedure, the challenged statutes are not

unconstitutional in all cases, and Noland’s facial challenge must fail. This analysis

misconstrues the nature of Noland’s constitutional claims

33 ¶60 To succeed on a facial challenge is a difficult task. City of Missoula, ¶ 21. “Statutes

are presumed constitutional, and . . . [a] statute found to be facially unconstitutional cannot

be enforced under any circumstances.” City of Missoula, ¶ 21. Noland argues that the

process itself is facially unconstitutional because no set of circumstances exists where

allowing the protests and requiring a showing of public need is constitutional. In other

words, the mere existence of the process is an unconstitutional obstacle that exists in all

circumstances. The evidence of record establishes that of the 24 applications for a Class D

certificate, 12 were withdrawn, two were denied, and ten were granted. The ones that were

denied or withdrawn occurred after a protest was submitted by an existing company. Of

the ten that were granted, three were granted over protest, three were granted with no

protest at all, and four were granted after a protester withdrew its protest.

¶61 Turning first to Noland’s equal protection violations, he advances two groups of

similarly situated persons: (1) motor carriers who operate motor vehicles upon public

highways for the transportation of passengers, household goods, or garbage for hire on a

commercial basis—with only Class D garbage haulers being subjected to anticompetitive

protests; and (2) all Class D carriers who want to haul garbage—with only new Class D

applicants subjected to anticompetitive protests from incumbent Class D carriers. I would

suggest the possibility of an additional third class, slightly varied from scenario (2): all

Class D applicants for a certificate—with a distinction between those applicants that must

go through the protest process and those where no protest has been filed. Each scenario

presents a facial challenge to the notice, protest, and hearing procedures established by

§ 69-12-323, MCA, which will apply in every instance an application is made.

34 ¶62 Noland advances a facial challenge to the notice, protest, and hearing procedures of

§ 69-12-323, MCA, pursuant to the due process provisions of the federal and Montana

Constitutions. He maintains that an economic regulation that burdens a plaintiff’s right to

earn a living violates these provisions if it is not “reasonably related to a permissible

legislative objective.” Mont. Cannabis Indus. Ass’n v. State, 2016 MT 44, ¶ 21, 382 Mont.

256, 368 P.3d 1131. Noland does not challenge the regulation of garbage hauling as it

relates to public health and safety, only the narrower provisions requiring that need be

demonstrated and the allowance of anticompetition protests by incumbents. Noland argues

the provisions challenged here violate his right to pursue employment by presenting a

substantial barrier to operating a garbage hauling business. Noland advances a facial

challenge to the notice, protest, and hearing procedures of § 69-12-323, MCA, which is

distinct from the actual issuance of a certificate. This statute, which sets out the need and

protest process, applies to every applicant.

¶63 Lastly, Noland brings a challenge pursuant to Montana’s constitutional provision

that provides all people have an inalienable right to “pursu[e] life’s basic necessities.”

Mont. Const. art II, § 3. Relying on Wadsworth v. State, 275 Mont. 287, 298-99, 911 P.2d

1165, 1171-72 (1996), Noland contends that employment is the primary way that a person

exercises and enjoys this fundamental constitutional right. Noland thus advances a facial

challenge to the notice, protest, and hearing procedures of § 69-12-323, MCA, which is

distinct from the actual issuance of a certificate and applies every time an application is

made.

35 ¶64 I would affirm the District Court’s conclusion that Noland lacks standing to bring

an as-applied challenge but has standing to bring a facial challenge. Because I conclude

the District Court improperly focused on the outcome of the application process rather than

the notice, protest, and hearing procedures of § 69-12-323, MCA, which apply to every

application for a certificate, I would remand for a decision by the District Court on the

merits of Noland’s alleged facial constitutional violations. I do not opine further on the

merits other than to more clearly state the nature of Noland’s claims. I further do not opine

on the level of scrutiny that should be applied to each challenge.

¶65 Pursuant to this analysis, I would affirm in part, and reverse and remand in part, to

the District Court.

/S/ LAURIE McKINNON

Justices Ingrid Gustafson and Katherine Bidegaray join in the specially concurring Opinion of Justice Laurie McKinnon.

/S/ INGRID GUSTAFSON /S/ KATHERINE M. BIDEGARAY