Upper Missouri v. DNRC

2025 MT 137

• Court: Montana Supreme Court
• Decided: July 1, 2025
• Docket: DA 24-0542
• Status: Published

Opinion

07/01/2025

DA 24-0542 Case Number: DA 24-0542

IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 137

UPPER MISSOURI WATERKEEPER, TANYA & TOBY DUNDAS, SALLY & BRADLEY DUNDAS, CAROLE & CHARLES PLYMALE, and CODY MCDANIEL,

Plaintiffs and Appellants,

v.

BROADWATER COUNTY and the MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION,

Defendants and Appellees,

and

71 RANCH, LP,

Intervenor and Appellee.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Broadwater, Cause No. DV-2022-38 Honorable Michael F. McMahon, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Guy Alsentzer, Upper Missouri Waterkeeper, Bozeman, Montana

David K. W. Wilson, Jr., Robert Farris-Olsen, Morrison Sherwood Wilson Deola, PLLP, Helena, Montana

Graham J. Coppes, Ferguson & Coppes, PLLC, Missoula, Montana For Appellee Broadwater County:

Susan B. Swimley, Swimley Law, Bozeman, Montana

Tara DePuy, Attorney at Law, Livingston, Montana

For Appellee DNRC:

Brian C. Bramblett, Molly Kelly, Montana Department of Natural Resources and Conservation, Helena, Montana

For Intervenor and Appellee 71 Ranch, LP:

Vuko J. Voyich, Anderson and Voyich, P.L.L.C., Livingston, Montana

Submitted on Briefs: April 9, 2025

Decided: July 1, 2025

Filed: ' ,--6tA .--df __________________________________________ Clerk

2 Justice Beth Baker delivered the Opinion of the Court.

¶1 Upper Missouri Waterkeeper and seven Broadwater County residents appeal the

First Judicial District Court’s denial of their attorney fees request after the court entered

declaratory judgment that 71 Ranch’s proposed subdivision did not meet the “exempt well”

exception for a water rights permit and that Broadwater County wrongly granted

preliminary approval of the subdivision. The Plaintiffs sought fees on three alternative

bases: the Montana Water Use Act, § 85-2-125, MCA; the Uniform Declaratory Judgments

Act, § 27-8-313, MCA; and the Private Attorney General Doctrine. The District Court

denied fees under all three claims.

¶2 We agree with the District Court that the Water Use Act does not authorize fees in

this case. But, on the basis of the court’s findings, we reverse its denial of fees as

supplemental relief for the declaratory judgment. We remand for the District Court to

determine a reasonable amount of fees and their apportionment. We do not reach the

private attorney general claim.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 71 Ranch submitted a preliminary plat application to Broadwater County, proposing

to subdivide 442 acres on the east side of Canyon Ferry Reservoir, called the “Horse Creek

Hills Subdivision.” It proposed four phases of development, which would subdivide the

land into thirty-nine residential lots, two commercial lots, and one open space lot; each

phase of the development would be serviced by its own exempt well, septic, and

stormwater system. With the application for each phase, 71 Ranch submitted a letter from

the Department of Natural Resources and Conservation (DNRC)—called a

3 “predetermination letter”—estimating the phase’s water usage and concluding that “the

proposed appropriation does fit the current rules and laws pertaining to the filing of an

exempt water right.” After several remands to the Broadwater County Planning Board, the

Broadwater County Commission approved the preliminary plat application.

¶4 Upper Missouri Waterkeeper, a nonprofit organization, and seven county residents,

including senior water rights holders (collectively “Upper Missouri”), filed a complaint

against Broadwater County and DNRC in August 2022, alleging that Broadwater County

violated §§ 76-3-603 and -608, MCA, of the Montana Subdivision and Platting Act (Counts

I and II); requesting a declaration that DNRC erroneously interpreted the Montana Water

Use Act’s exempt well provision and accompanying administrative rule in violation of the

Montana Constitution (Count III); and requesting a declaration that Broadwater County’s

reliance on DNRC’s interpretation was arbitrary and capricious (Count IV). 71 Ranch

sought and was granted leave to intervene.

¶5 Upper Missouri and the County filed cross-motions for summary judgment. The

District Court ruled that, in violation of the Subdivision and Platting Act, the Subdivision’s

environmental assessment inadequately addressed potential impacts to surface and

groundwater and that the administrative record was “insufficiently clear, organized, and

cohesive” to provide citizens with a “reasonable opportunity for . . . participation in the

operation of the agencies.” The record showed that “the County ben[t] over backward to

allow 71 Ranch repeated opportunities to rectify admitted and obvious basic errors in the

application.” The approval process generated “thousands of documents and over thirty

hours of meeting recordings,” which had been dissected by ten attorneys involved in this

4 litigation. The District Court found that, despite all this time and effort, 71 Ranch still

submitted a deficient application, and the County abused its discretion in approving the

Subdivision in violation of the Subdivision and Platting Act.

¶6 The court found that, in issuing the four predetermination letters, DNRC determined

that “the project was entitled to a combined exempt well appropriation for each phase of

the project.” DNRC’s decision, the court found, “blatantly ignore[d]” this Court’s holding

in Clark Fork Coal. v. Tubbs, 2016 MT 229, ¶¶ 23-24, 384 Mont. 503, 380 P.3d 771, when

it disregarded the project’s total “combined appropriation” by treating each of the

Subdivision’s four phases as a separate project. The court found “no basis in law for DNRC

to treat the four phases of 71 Ranch’s subdivision project separately, a conclusion which is

absolutely clear from statute, administrative rule, Montana Supreme Court precedent, and

even DNRC’s letters in this matter.”

¶7 The District Court granted Upper Missouri summary judgment on all but its

constitutional claim against DNRC. The parties then stipulated to dismiss that claim with

prejudice. Upper Missouri filed a motion for attorney fees under the Water Use Act, the

Uniform Declaratory Judgments Act (UDJA), and the private attorney general doctrine.

Upper Missouri appeals the District Court’s denial of its fees motion. Neither the

Defendants nor the Intervenor appealed the District Court’s judgment on the merits.

STANDARD OF REVIEW

¶8 “We review de novo whether there is legal authority to award attorney fees.” Town

of Kevin v. N. Cent. Mont. Reg’l Water Auth., 2024 MT 159, ¶ 6, 417 Mont. 325, 553 P.3d

392 (citation omitted). “If legal authority exists, we review a district court’s grant or denial

5 of attorney fees for an abuse of discretion.” Town of Kevin, ¶ 6 (citation omitted). A trial

court abuses its discretion when it acts arbitrarily without employment of conscientious

judgment or exceeds the bounds of reason, resulting in a substantial injustice. TCF Enters.,

Inc. v. Rames, Inc., 2024 MT 38, ¶ 15, 415 Mont. 306, 544 P.3d 206 (citation omitted).

DISCUSSION

¶9 “Montana follows the ‘American Rule,’ which provides that, absent statutory or

contractual authority, attorney fees will not be awarded to the prevailing party in a lawsuit.”

City of Helena v. Svee, 2014 MT 311, ¶ 18, 377 Mont. 158, 339 P.3d 32 (citation omitted).

Upper Missouri asserts two statutory bases for an award of fees and a third basis (the private

attorney general doctrine) under what we have recognized as one of the “equitable

exceptions” to the general rule. Trs. of Ind. Univ. v. Buxbaum, 2003 MT 97, ¶ 19,

315 Mont. 210, 69 P.3d 663.

¶10 1. Is Upper Missouri entitled to attorney fees under § 85-2-125, MCA, of the Water Use Act?

¶11 Upper Missouri argues that it is entitled to attorney fees under § 85-2-125(1), MCA,

of the Water Use Act, which provides that

[i]f a final decision of the department on an application for a permit or a change in appropriation right is appealed to the district court, the district court may award the prevailing party reasonable costs and attorney fees.

The Act defines “permit” as “the permit to appropriate issued by the department under

[§§] 85-2-301 through 85-2-303 and 85-2-306 through 85-2-314.” Section 85-2-102(20),

MCA. Section 85-2-306, MCA, contains exceptions to permit requirements, including the

exempt well provisions invoked by 71 Ranch.

6 ¶12 Quoting the predetermination letters, the District Court reasoned that the letters

were “not part of DNRC’s water rights adjudication process but rather . . . a distinct final

DNRC decision as part of ‘the proposed DEQ review in accordance with’” Admin. R. M.

17.36.103(1)(s) (2019). The predetermination letters were part of the subdivision review

process, the court found, not of DNRC’s water rights permitting process. Because DNRC’s

water rights adjudication had not even begun and the court did not issue injunctive relief,

the court ruled that Upper Missouri was not entitled to attorney fees under § 85-2-125,

MCA.

¶13 Upper Missouri argues that DNRC’s predetermination letters constituted a “final

decision” under § 85-2-125(1), MCA, because they “authorized the subdivision to move

forward and advised the applicant that pumping could lawfully begin.” DNRC responds

that finality of its decision is not determinative here—instead the question is “whether there

[was] even a proceeding that qualifies to invoke” § 85-2-125, MCA. DNRC maintains that

§ 85-2-125(1), MCA, applies to applications for new permits and change authorizations,

not the exempt water uses outlined in § 85-2-306, MCA, that formed the basis of the

predetermination letters. The statutes that cover applications for new permits, change

authorizations, and the administrative hearings process, DNRC notes, were not implicated

here.

¶14 DNRC points to Upper Missouri’s summary judgment briefing, in which it argued

that the agency circumvented the permitting process by evaluating the Subdivision project

in phases. DNRC contends that this indicates Upper Missouri previously recognized the

distinction between the permitting process—which could support a claim for attorney fees

7 under § 85-2-306, MCA—and the predetermination letters, which “only evaluated the

amount of water proposed . . . for purposes of the Subdivision and Platting Act.”

¶15 Upper Missouri’s argument—that the predetermination letters effectively

authorized the Subdivision to move forward—is not the operative inquiry to determine

whether a party is entitled to attorney fees under § 85-2-125(1), MCA. The statute

authorizes fees in cases involving the agency’s decision on “an application for a permit or

a change in appropriation right.” Section 85-2-125(1), MCA. Upper Missouri does not

contend that DNRC made a final decision on either an application for a new permit or a

change in an existing appropriation right. As Upper Missouri acknowledged in briefing to

the District Court, DNRC’s predetermination letters would have allowed the development

to avoid the permitting process.

¶16 The predetermination letters demonstrate that DNRC issued them as part of the

subdivision review process. Each letter states that its “purpose . . . is to respond to your

request for DNRC review of water right permit exceptions under MCA 85-2-306(3)(a)(iii)

for the proposed DEQ review in accordance with” Admin. R. M. 17.36.103(1)(s) (2019).

The rule provided that an applicant must submit the predetermination letters “to the

reviewing authority as part of a subdivision application.” Admin. R. M. 17.36.103(1)

(2019). Because the predetermination letters were not a final decision on an application

for a permit or a change in appropriation right, Upper Missouri is not entitled to attorney

fees under § 85-2-125(1), MCA. The District Court therefore did not err when it denied

Upper Missouri’s request for attorney fees under the Water Use Act.

8 ¶17 2. Is Upper Missouri entitled to attorney fees under § 27-8-313, MCA, of the Uniform Declaratory Judgments Act?

¶18 In Buxbaum, ¶ 42, we recognized § 27-8-313, MCA, as statutory authority for an

award of attorney fees. That section provides: “Further relief based on a declaratory

judgment or decree may be granted whenever necessary or proper.” Section 27-8-313,

MCA. This Court reasoned that Montana’s UDJA did not narrow “the broad, discretionary

authority conferred by § 27-8-313, MCA.” Buxbaum, ¶ 41. To the contrary, we looked to

§ 27-8-102, MCA, which provides that the UDJA’s purpose is remedial and that “it is to

be liberally construed and administered.” Buxbaum, ¶ 41. Based on the UDJA’s liberal

construction and the absence of a provision narrowing courts’ discretionary authority, we

concluded that Ҥ 27-8-313, MCA, authorizes a court to award attorney fees when the

court, in its discretion, deems such an award ‘necessary or proper.’” Buxbaum, ¶ 42.

¶19 “The threshold question for an award of attorney fees under the UDJA is whether

equities support an award.” Town of Kevin, ¶ 16 (citation omitted). One equitable

consideration is whether the parties are similarly situated. Svee, ¶ 20. The District Court

considered whether Upper Missouri was similarly situated to DNRC, Broadwater County,

and 71 Ranch. The court cited Svee, ¶ 21, where we reasoned that the two homeowners

were not similarly situated to the municipal government of Helena because they had

significantly fewer litigation resources. Comparing Upper Missouri’s litigation resources

to the homeowners’ resources in Svee, the court found that Upper Missouri “certainly ha[s]

even fewer resources in comparison to the combined power of a state agency, county

9 government, and an alleged powerful local landowner.” The court ruled: “Equitable

considerations weigh[] heavily towards an award of fees under the UDJA.”

¶20 Quoting Upper Missouri’s description of 71 Ranch, the District Court characterized

the ranch as a “litigant with both a history in Montana courtrooms, the chambers of the

legislature, and in the halls of state agencies.” 71 Ranch—the only Defendant to dispute

the District Court’s equities finding—argues that these allegations are unsupported by the

record and the court improperly relied on them in considering the equities. Upper Missouri

responds that it is a standalone 501(c)(3) organization that, as a member of the Waterkeeper

Alliance, receives no litigation support. 71 Ranch points to no evidence in the record

indicating that Upper Missouri has comparable litigation resources to match those of the

combined Defendants. Even without 71 Ranch, however, the record supports the District

Court’s conclusion that seven local residents and a nonprofit organization lack the

resources to be similarly situated to a state agency and a county government. See Svee,

¶ 21. The District Court did not abuse its discretion in finding that the equities support an

award of attorney fees under the UDJA.

¶21 In Buxbaum, ¶ 45, we quoted McConnell v. Hunt Sports Ent., 725 N.E.2d 1193

(Ohio App. 10th Dist. 1999), an Ohio Court of Appeals case that offered clarifying

guidance for when attorney fees are “necessary or proper” under the UDJA. In McConnell,

the Ohio Court of Appeals relied on two cases—one regarding insurance, the other a

mortgage—in which the plaintiffs each sought declaratory relief. Buxbaum, ¶ 45 (quoting

McConnell, 725 N.E.2d at 1225). Attorney fees were necessary or proper in those cases,

the Court of Appeals held, because (1) “the insurance company and the mortgagee

10 essentially ‘possessed’ what the insureds and plaintiffs sought in the litigation”; (2) “the

insureds and plaintiffs in . . . [those cases] needed a declaration that they were entitled to

such ‘property’”; and (3) “the declarations sought in those cases were necessary in order

to change the status quo.” Buxbaum, ¶ 45 (quoting McConnell, 725 N.E.2d at 1225). We

cautioned that we did “not intend for . . . [the McConnell] examples to constitute exhaustive

factual scenarios” constraining when a plaintiff may obtain attorney fees under the UDJA.

Buxbaum, ¶ 45. These “tangible parameters” did not “define the exclusive circumstances

justifying an award,” nor did their rationale apply exclusively to insurance cases.

Buxbaum, ¶¶ 42-43. Instead, the tangible parameters simply constituted “guidance in

future applications of § 27-8-313, MCA.” Buxbaum, ¶ 45; see also Town of Kevin, ¶ 16

(citations omitted) (“We adopted this analytical framework not to define the exclusive

circumstances justifying an award of attorney fees as necessary or proper, but to articulate

some tangible parameters for district courts to consider when awarding fees in declaratory

judgments.”).

¶22 We have distilled the tangible parameters test, such that it now “often considers

whether (1) the defendant possesses what the plaintiff sought in the declaratory relief

action; (2) it is necessary to seek a declaration showing the plaintiffs are entitled to the

relief sought; and (3) the declaratory relief sought was necessary to change the status quo.”

Town of Kevin, ¶ 16 (citations omitted).

¶23 The District Court considered each of the three tangible parameters. The court

found that it was necessary for Upper Missouri to seek declaratory relief, comparing the

necessity of Upper Missouri’s suit to the plaintiffs’ declaratory judgment action in Svee.

11 The court pointed out that the Svees could have raised their declaratory judgment action in

defense to the City of Helena’s civil and criminal enforcement actions against them but

that this Court held nonetheless that their declaratory judgment action was necessary within

the guidelines of the tangible parameters test. Svee, ¶ 25. The District Court found that

unlike Svee, Upper Missouri “could not wait for . . . [its] claims to be resolved in some

other manner,” and had Upper Missouri not sought declaratory relief, the preliminary plat

approval would stand.

¶24 Broadwater County and 71 Ranch do not dispute this finding. DNRC argues that

the court’s necessity determination does not implicate the agency because the necessity of

the action was predicated on the County’s decision under the Subdivision and Platting Act.

But this overlooks that DNRC’s predetermination letters set into motion Broadwater

County’s approval process. Upper Missouri had no recourse besides filing its declaratory

judgment action to obtain the relief it sought. The District Court reasoned that without

Upper Missouri’s declaratory judgment action, DNRC would have continued to misapply

the term “combined appropriation” from § 85-2-306(3)(a)(iii), MCA, and the Subdivision’s

preliminary plat approval would remain unaffected. We find no error in the court’s

conclusion on this factor.

¶25 Under the third tangible parameters factor, the District Court ruled that without

Upper Missouri’s requested declaratory relief, DNRC’s “final determination within the

subdivision preliminary platting process” would remain unchanged. It thus concluded that

declaratory relief was necessary to change the status quo. DNRC contends that the District

Court’s declaratory relief did not alter the status quo because the predetermination letters

12 neither authorized water use nor prevented the Subdivision from obtaining a water right or

using an exempt well in the future. Quoting from DNRC’s brief, Upper Missouri responds

that the status quo did change because “[t]he subdivision can potentially still obtain an

‘exempt well’ for 10 acre-feet, but it must be within the combined appropriation definition

and parameters as directed by the District Court.” Upper Missouri asserts that DNRC

thereby acknowledged the court’s order changed the status quo for the project.

¶26 The court’s order, Upper Missouri argues, also changed the status quo statewide.

Upper Missouri points to a DNRC webpage that explains changes to DNRC and DEQ

processes following the District Court’s summary judgment order in this case. DNRC,

Exempt Well Updates: Subdivision Review Process and Combined Appropriation

Guidance, Mont. Dep’t of Nat. Res. & Conservation (accessed Jun. 10,

2025), https://perma.cc/CBV4-LJAS. After the court’s order, “DEQ and DNRC

terminated the Memorandum of Understanding between the two agencies that formally set

forth the predetermination process for water rights”; DEQ began amending its rules “to no

longer require a predetermination letter for subdivision approval”; and DNRC rescinded

its previous combined appropriation guidance. DNRC, Exempt Well Updates. DEQ since

has amended its rules, eliminating the requirement that an applicant submit

predetermination letters from DNRC as part of a subdivision application. Compare

Admin. R. M. 17.36.103(1)(s) (2019), with Admin. R. M. 17.36.103 (2024).

¶27 The District Court’s order caused DNRC to change what it considered to be the

combined appropriation for the Subdivision and to alter its exempt well guidance statewide,

and DEQ amended its rules concerning subdivision applications. The court did not abuse

13 its discretion when it concluded that seeking declaratory relief was necessary for Upper

Missouri to change the status quo.

¶28 Despite finding every factor in favor of an award, the District Court nonetheless

denied fees after concluding that the Defendants did not “possess” anything Upper

Missouri wanted. Plaintiffs thus could not recover under the UDJA because they did not

meet all factors of the tangible parameters test. The District Court found unclear “if or who

‘possesses’ anything in an action seeking a declaration that a State agency’s interpretation

of law is incorrect.” For the possession factor to weigh in a plaintiff’s favor, the court

reasoned, the defendant must have “a clear object which may be possessed[, such as] a

hockey team . . . , title to property, and funds to reimburse the insured’s loss.” Because it

found that DNRC, the County, and 71 Ranch did not possess any tangible object that Upper

Missouri sought in the declaratory relief action, the court concluded that the possession

factor weighed against Upper Missouri.

¶29 Our case law does not require that a defendant possess a tangible object for the

tangible parameters to weigh in the plaintiff’s favor. In Svee, ¶¶ 22-23, the trial court

reasoned that the possession factor was inapplicable outside the insurance context and

denied plaintiffs their attorney fees. We reversed, holding that the tangible parameters test

did not define the exclusive circumstances in which attorney fees are necessary or proper

under the UDJA. Svee, ¶ 24. We stated that “the [district] court’s conclusion that the first

prong of the tangible parameters test could not be met because it was inapplicable was

incorrect.” Svee, ¶ 24. Similarly here, despite the equities weighing “heavily” in favor of

14 attorney fees and all other factors pointing to a fees award, the District Court denied Upper

Missouri’s request because the possession factor could not be met.

¶30 In Town of Kevin, ¶¶ 3-4, the Town successfully sought a declaratory judgment

under the UDJA that it was not a member of the North Central Regional Water Authority.

The District Court awarded the Town its attorney fees. On appeal, we reasoned that the

Authority “had what the Town desired,” which was “recognizing the Town [w]as not a

member.” Town of Kevin, ¶ 19. Although the Town sought something more abstract—

recognition that it was not a member of the Authority—the possession factor weighed in

the Town’s favor. We upheld the award on the court’s finding that attorney fees were

necessary and proper. Town of Kevin, ¶ 19.

¶31 We recently upheld an attorney fees award under the UDJA when the trial court did

not analyze the tangible parameters test at all. In Friends of Lake Five v. Flathead County

Commission, 2024 MT 119, ¶¶ 3-4, 416 Mont. 525, 549 P.3d 1179, Flathead County issued

a major land use permit to a landowner whose property could be accessed only through a

private road. Although access to the property relied on multiple easements that prohibited

the road’s use for commercial purposes, Flathead County approved the landowner’s use

permit that proposed building several nightly vacation rental structures. Friends of Lake

Five, ¶¶ 5-8. Friends of Lake Five sued, successfully obtaining declaratory relief and a

permanent injunction against the development. Friends of Lake Five, ¶ 12. The trial court

found that attorney fees were necessary and proper under the UDJA due to the easements’

prohibition against commercial use. Friends of Lake Five, ¶ 38. We upheld the attorney

fees award on appeal even though the trial court did not consider the tangible parameters

15 test. Friends of Lake Five, ¶¶ 38-40. Friends of Lake Five illustrates that the tangible

parameters test is not exclusive and that a trial court may award fees as necessary and

proper on other bases.

¶32 The UDJA is not primarily a tool to secure ownership or title to objects but a

mechanism to obtain a determination of rights. Section 27-8-202, MCA (“Any

person . . . whose rights, status, or other legal relations are affected by a statute, municipal

ordinance, contract, or franchise may have determined any question of construction or

validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a

declaration of rights, status, or other legal relations thereunder.”). As we observed in

Buxbaum, ¶ 43, and since, the “tangible parameters” do not “define the exclusive

circumstances justifying an award.”

¶33 Based on the District Court’s own findings, the court abused its discretion when it

denied Upper Missouri’s attorney fees request. Upper Missouri was entitled to fees once

the court found that the equities weighed heavily in its favor and the non-exclusive tangible

parameters test indicated fees were necessary and proper. Accordingly, we reverse the

District Court’s decision to deny attorney fees under the UDJA. We remand for

proceedings to determine a reasonable amount of fees to be awarded. On remand, the

District Court may consider argument from the parties to determine whether and how to

apportion fees between DNRC, Broadwater County, and 71 Ranch.

¶34 Because we remand for an award of attorney fees under the UDJA, we do not reach

the parties’ private attorney general doctrine arguments.

16 CONCLUSION

¶35 We reverse the District Court’s denial of Upper Missouri’s attorney fees request.

We remand for further proceedings to determine a reasonable amount of fees to be awarded

and their correct apportionment.

/S/ BETH BAKER

We Concur:

/S/ JAMES JEREMIAH SHEA /S/ KATHERINE M BIDEGARAY /S/ LAURIE McKINNON /S/ JIM RICE

Chief Justice Cory Swanson recused himself and did not participate in this case.

Justice Katherine Bidegaray, concurring.

¶36 I concur fully with the majority’s analysis concluding that attorney fees under the

Water Use Act’s fee provisions (§ 85-2-125, MCA) are inapplicable given the procedural

specifics here. The majority correctly clarifies that DNRC’s predetermination letters do

not constitute formal permit decisions as contemplated by statute, and thus attorney fees

under that provision are not warranted.

¶37 I also concur with the majority’s decision to award attorney fees under the Uniform

Declaratory Judgments Act (UDJA), as articulated clearly in ¶ 33. The majority correctly

recognizes that the equities strongly favor awarding fees to Upper Missouri Waterkeeper,

who successfully challenged significant governmental errors impacting substantial public

interests. The majority’s thoughtful application of the liberal and remedial principles

17 underlying the UDJA aligns closely with established Montana precedent and appropriately

acknowledges the practical impacts of the County’s flawed subdivision approval process

and DNRC’s consistent misinterpretation of the Montana Water Use Act.

¶38 However, I write separately because the majority declined to reach the Private

Attorney General Doctrine (PAGD), and I believe addressing the PAGD remains essential

for providing complete guidance for future cases. The majority opinion overlooks an

important opportunity to reinforce explicitly the constitutional dimensions of the rights

Upper Missouri Waterkeeper vindicated. Specifically, this litigation has clearly implicated

fundamental constitutional rights, including the right to a clean and healthful environment

under Article IX, Section 1, and the protection of existing water rights guaranteed by

Article IX, Section 3. Additionally, the procedural deficiencies inherent in Broadwater

County’s review process significantly impaired citizens’ constitutional rights to know and

to participate meaningfully in governmental decisions as guaranteed in Article II,

Sections 8 and 9.

¶39 Addressing the PAGD claim would underscore the importance of these rights and

the critical role citizens play in checking governmental overreach and ensuring responsible

stewardship of Montana’s environmental resources. This clarification is not merely

academic but provides meaningful guidance to lower courts and litigants about when the

PAGD appropriately applies. Explicit acknowledgment of the constitutional rights at stake

further solidifies the remedial purpose and reach of this equitable doctrine.

¶40 Additionally, while I concur that fees under the Water Use Act (§ 85-2-125, MCA)

are inapplicable given the procedural specifics here, the majority’s interpretation could

18 more explicitly acknowledge the pragmatic effects of DNRC’s predetermination letters.

Although correctly excluded from statutory coverage, these letters effectively function as

final agency actions that permit subdivision phases to advance without formal permitting.

Recognizing these practical consequences could better inform DNRC’s future application

of its statutory duties, providing clearer guidance to avoid continued misinterpretation and

potential abuses.

¶41 For these reasons, I concur fully with the majority’s conclusions regarding fees

under the Water Use Act and the UDJA but urge additional consideration of the PAGD and

practical implications regarding DNRC’s determinations under the Water Use Act.

/S/ KATHERINE M BIDEGARAY

Justice Laurie McKinnon joins in the concurring Opinion of Justice Katherine Bidegaray.

/S/ LAURIE McKINNON