LYMAN CREEK, LLC, a Montana Limited Liability Company, Plaintiff and Appellant,
CITY OF BOZEMAN, Defendant and Appellee.
Submitted on Briefs: August 21, 2019
District Court of the Eighteenth Judicial District, In and
For the County of Gallatin, Cause No. DV-18-854B Honorable
Rienne H. McElyea, Presiding Judge
Appellant: Jack G. Connors, Jacqueline R. Papez, Doney
Crowley P.C., Helena
Appellee: Peter G. Scott, Peter G. Scott Law Offices, PLLC,
Amicus Curiae: Meg K. Casey, Laura S. Ziemer, Patrick A.
Byorth, Trout Unlimited, Bozeman, Montana
Lyman Creek, LLC (Lyman) appeals an order of the Eighteenth
Judicial District Court, Gallatin County, granting City of
Bozeman's (City) motion to dismiss.
We affirm. We restate the dispositive issue as follows: Does
§ 85-2-114, MCA, of the Montana Water Use Act (Act)
preclude an implied private right of action for judicial
enforcement of the Act?
AND PROCEDURAL BACKGROUND
Lyman Creek is a perennial stream in Gallatin County that
flows through private property owned by Lyman. Both Lyman and
the City own water rights sourced by Lyman Creek.
In March 2018, Lyman submitted a complaint to the Montana
Department of Natural Resources and Conservation (DNRC)
containing allegations of unpermitted water use by the City.
DNRC has not taken any enforcement action on Lyman's
complaint. On August 6, 2018, Lyman filed a complaint in
District Court alleging the City was in violation of the Act
and seeking injunctive relief and attorney fees.
Lyman asserted that § 85-2-125(2), MCA, which allows a
party to recover costs when enjoining the use of water by a
person that does not have a water right, expressly provides a
private right of action to enforce the Act. Lyman reasoned
that § 85-2-125(2), MCA, would be meaningless if there
is no private right of action to obtain injunctive relief.
Lyman's complaint requested injunctive relief under the
Act and § 27-19-102, MCA. Additionally, Lyman argued
that even if § 85-2-125(2), MCA, does not expressly
provide a private right of action to enforce the Act, that
right is implied by the Act in its entirety. The City moved
to dismiss Lyman's complaint for failure to state a claim
pursuant to M. R. Civ. P. 12(b)(6), contending that the Act
does not create a private right of action for enforcement
through injunctive relief, just as it does not create a
private right of action, citing Faust v. Utility
Solutions, LLC, 2007 MT 326, 340 Mont. 183, 173 P.3d
1183, to enforce civil penalties. Instead, the City claimed,
§ 85-2-114, MCA, authorizes only DNRC, the attorney
general, or the county attorneys to seek judicial enforcement
of the Act, including injunctive relief. Importantly, the
City acknowledged that Lyman was "not without
recourse," as "the mechanism for invoking a
district court's supervisory jurisdiction over water
distribution is found in [§] 85-2-406, MCA."
The District Court granted the City's motion to dismiss
under M. R. Civ. P. 12(b)(6) and dismissed Lyman's
complaint. The District Court held that § 85-2-125(2),
MCA, may be invoked by a party with a water right to receive
costs and attorney fees in an action to enjoin the use of
water by a person that does not have a water right, and that,
because Lyman and the City both had water rights originating
from Lyman Creek, § 85-2-125(2), MCA, was
inapplicable. As the plain language of §
85-2-125(2), MCA, precluded its application, the District
Court declined to consider whether § 85-2-125(2), MCA,
created an express private right of action. The District
Court next concluded that § 85-2-114, MCA, which allows
for judicial enforcement of the Act, does not support an
implied private right of action for enforcement. In analyzing
the plain language of § 85-2-114, MCA, the District
Court held that the legislature did not intend to create a
private right of action for enforcement, but instead left
enforcement of the Act to DNRC, the attorney general, or the
county attorneys. Lyman appeals.
"A motion to dismiss pursuant to M. R. Civ. P. 12(b)(6)
requires a district court to determine whether a claim has
been adequately stated in the pleadings." Woods v.
Shannon, 2015 MT 76, ¶ 9, 378 Mont. 365, 344 P.3d
413 (citing Meagher v. Butte-Silver Bow City-County,
2007 MT 129, ¶ 15, 337 Mont. 339, 160 P.3d 552).
"The pleadings should not be dismissed unless it appears
certain that the petitioner will be unable to recover under
any set of facts which could be proven in support of his or
her claim." Woods, ¶ 9 (citing
Kleinhesselink v. Chevron, U.S.A., 277 Mont. 158,
161, 920 P.2d 108, 110 (1996)). "The pleadings must be
construed in the light most favorable to the petitioner, and
all allegations of fact contained in the pleadings are taken
as true." Woods, ¶ 9 (citing Plouffe
v. State, 2003 MT 62, ¶ 8, 314 Mont. 413, 66 P.3d
A district court's decision to grant a motion to dismiss
under M. R. Civ. P. 12(b)(6) operates as a conclusion of law.
Faust v. Util. Solutions, LLC, 2007 MT 326, ¶
11, 340 Mont. 183, 173 P.3d 1183 (citing Bar OK Ranch,
Co. v. Ehlert, 2002 MT 12, ¶ 31, 308 Mont. 140, 40
P.3d 378). We review a district court's conclusions of
law to determine whether the trial judge's interpretation
of the law is correct. Carbon County v. Union Reserve
Coal Co., 271 ...