COMMUNITY ASSOCIATION FOR NORTH SHORE CONSERVATION, INC., a Montana Nonprofit Mutual Benefit Corporation, Plaintiff, Appellee, and Cross-Appellant,
FLATHEAD COUNTY and its BOARD OF COUNTY COMMISSIONERS, a Political Subdivision of the State of Montana, Defendants and Appellees, JOLENE DUGAN, Intervenor and Appellant.
Submitted on Briefs: March 20, 2019
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DV-15-121B
Honorable Robert B. Allison, Presiding Judge
Appellant: Richard De Jana, Richard De Jana & Associates,
PLLC, Kalispell, Montana
Appellee and Cross-Appellant Community Association for
North-Shore Conservation, Inc. Donald Murray, Hash,
O'Brien, Biby & Murray, Kalispell, Montana
Appellees Flathead County and its Board of County
Commissioners: Tara R. Fugina, Caitlin Overland, David W.
Randall, Flathead County Deputy Attorneys, Kalispell, Montana
Amicus Montana Environmental Information Center: Shiloh
Hernandez, Western Environmental Law Center, Helena, Montana
Amicus Montana Trial Lawyers Association: John F. Lacey,
McGarvey, Heberling, Sullivan & Lacey PC, Kalispell,
Intervenor Jolene Dugan (Dugan) appeals from orders of the
Eleventh Judicial District Court, Flathead County, entering
judgment in favor of plaintiff Community Association for
North Shore Conservation, Inc. (CANSC). CANSC cross-appeals
from the court's order denying its request for attorney
fees. Defendants Flathead County and its Board of County
Commissioners (the Board) do not appeal but assert the
District Court correctly denied CANSC's request for
attorney fees. We affirm and address the following issues:
1. Does CANSC have standing?
2. Was the Board's approval of the bridge permit
arbitrary and capricious?
3. Did the District Court abuse its discretion when it
ordered Dugan to restore the lake to its original state?
4. Did the District Court abuse its discretion by
refusing CANSC's request for attorney fees under the
private attorney general doctrine?
AND PROCEDURAL BACKGROUND
Dugan owns a peninsula-shaped parcel of land on the shore of
Flathead Lake. When the lake's water is at its highest
point for a few months each year, the end of the peninsula
becomes an island. During the rest of the year, Dugan's
property is a continuous strip of land. Dugan sought to build
a bridge on her property to connect the intermittent island
to the mainland. To do so, at the beginning of 2011, Dugan
applied to the Flathead County Planning and Zoning Office for
a Lakeshore Construction Permit. The Board approved
Dugan's initial permit and subsequently approved an
amended permit. Dugan built the bridge.
Meanwhile, CANSC filed a petition in District Court asking
the court to overturn the Board's approval of Dugan's
permit. It argued the Board should have never approved the
permit and asked the court to require Dugan to restore the
area to its natural state. The District Court ultimately
agreed with CANSC and entered an order requiring Dugan to
take down the bridge and restore the area. CANSC, as the
prevailing party, asked the District Court for an award of
fees. The District Court denied its request. Dugan now
appeals the District Court's order requiring her to
restore the area, raising various issues. CANSC cross
appeals, arguing it is entitled to attorney
fees. We include additional facts throughout
this Opinion as needed.
This Opinion addresses multiple and diverse issues and,
therefore, we set forth each standard of review at the
beginning of each issue's discussion.
In 1975, the Montana Legislature enacted the Lakeshore
Protection Act (the Act), §§ 75-7-201 to -217, MCA.
The Act begins with a policy statement: "The
[L]egislature finds and declares that the natural lakes of
Montana are high in scenic and resource values and that the
conservation and protection of these lakes is important to
the continued value of lakeshore property as well as to the
state's residents and visitors who use and enjoy the
lakes." Section 75-7-201, MCA. This policy is founded in
the Montana Constitution. Mont. Const. art. II, § 3
(inalienable right to a clean and healthful environment);
Mont. Const. art. IX, § 1(1) (duty to maintain and
improve a clean and healthful environment).
The Act grants local governments the statutory power to adopt
local lakeshore regulations to conserve and protect lake
areas. Section 75-7-201, MCA. A person seeking to do any work
"that will alter or diminish the course, current, or
cross-sectional area of a lake or its lakeshore must first
secure a permit" from the local governing body. Section
75-7-204(1), MCA. Each local governing body having
jurisdiction over a lake adopts its own lakeshore
regulations. Section 75-7-207(1), MCA. The regulations must,
at a minimum, favor permit issuance if, during the proposed
work's construction or utilization, it will not:
(1) materially diminish water quality;
(2) materially diminish habitat for fish or wildlife;
(3) interfere with navigation or other lawful recreation;
(4) create a public nuisance; or
(5) create a visual impact discordant with natural scenic
values, as determined by the local governing body, where such
values form the predominant landscape elements.
75-7-208(1)-(5), MCA. Those requirements "are minimum
requirements and do not restrict a local governing body from
adopting such stricter or additional regulations as may be
authorized by other statutes." Section 75-7-207(5), MCA.
The Act also provides for judicial enforcement and review.
Section 75-7-215, MCA. A district court may hear and decide
various issues arising from the Act, including "a
complaint and petition of a governing body or an interested
person for an order to restore a lake to its previous
condition" and "a petition of an interested person
for review of a final action of a governing body upon an
application for a permit." Section 75-7-215(1)-(2), MCA.
If a person performs work without a permit, the local
governing body or the district court may require the person
to "restore the lake to its condition before the person
disturbed it." Section 75-7-205, MCA.
Pursuant to the Act, Flathead County's local governing
board, the Board, adopted the Flathead County Lake and
Lakeshore Protection Regulations (Regulations). Flathead
County, Mont., Lake and Lakeshore Protection
Regulations §§ 1.1 to 1.2 (enacted April 13,
1982, amended January 24, 2002),
"Regulations"). The Regulations' listed
purposes reflect the Act's policies:
A. Protect the fragile, pristine character of Flathead
County's lakes and recognize that the ecosystem of these
lakes [is] inseparably intertwined with the adjacent riparian
corridor and uplands area;
B. Conserve and protect natural lakes because of their high
scenic and resource value;
C. Conserve and protect the value of the lakeshore property;
D. Conserve and protect the value of the lakes for the
State's residents and visitors ...