296 P.3d 1154
Mont.2013Background
- Bostwick applied to DNRC for a Beneficial Water Use Permit for municipal use in the Lazy J South subdivision in Gallatin County; initial request was up to 79 acre-feet/year from groundwater.
- Objectors Montana FWP and Montana Trout Unlimited withdrew objections after Bostwick agreed to reduce to 76 acre-feet/year.
- DNRC did not grant the permit; it issued a statement of opinion finding lack of proof on no net depletion and lack of adverse effect, requiring mitigation.
- Bostwick petitioned for review; the District Court found no proof of no net depletion or lack of adverse effect but deemed Bostwick’s mitigation proposal adequate and found DNRC biased; it granted relief subject to mitigation.
- We previously reversed in Bostwick I, holding DNRC had authority to deny the permit if Bostwick failed to prove §85-2-311 criteria, and remanded for hearing on the permit application.
- This decision affirms the District Court and DNRC rulings, addressing multiple challenges to mitigation, timing, water rights specificity, and alleged bias.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did DNRC have authority to deny the permit after settlement? | Bostwick argues settlement obviates further denial; DNRC lost authority after being deemed correct and complete. | DNRC retains authority to deny if §85-2-311 criteria are not met, regardless of settlements. | Yes; DNRC had authority to deny. |
| Was mitigation required for assumed net depletion and adverse effect? | Bostwick proposed multiple mitigation theories to offset depletion and adverse effects. | Mitigation is required when net depletion or adverse effects are found; proposed strategies must offset effects. | DNRC correctly required mitigation. |
| Was Bostwick's mitigation proposal adequate as a matter of law? | Irrigation-season-only mitigation could suffice given downstream effects and settlements. | Mitigation must offset effects for all seasons; non-irrigation season effects must be addressed. | Yes; in this unique context the irrigation-season-only plan was adequate for lack of adverse effect during non-irrigation season due to FWP settlement. |
| Did DNRC properly require identification of a specific water right for mitigation? | Bostwick argued DNRC should allow details later; no need to specify a water right upfront. | DNRC routinely requires exact water-right identification to evaluate mitigation effectiveness. | Yes; DNRC may require specifying a water right for effective mitigation. |
| Did DNRC bias prejudice Bostwick enough to warrant reversal? | Emails suggested bias; due process violation due to irrevocably closed mind. | Bias was an unlawful procedure but did not cause substantial prejudice given independent agreement with most findings. | No substantial prejudice; bias did not mandate reversal. |
Key Cases Cited
- Bostwick Props. v. Mont. Dep’t of Nat. Res. & Conserv., 351 Mont. 26, 208 P.3d 868 (2009 MT 181) (DNRC authority to deny if criteria not met; remand for hearing)
- Erickson v. State ex rel. Bd. of Med. Exam’r, 282 Mont. 367, 938 P.2d 625 (1997) (unlawful procedure bias must prejudice substantial rights)
- Mont. Trout Unlimited v. Mont. Dep’t of Nat. Res. & Conserv., 331 Mont. 438, 133 P.3d 224 (2006 MT 72) (protecting prior appropriators; closed Upper Missouri context)
- U.S. West, Inc. v. Dep’t of Revenue, 343 Mont. 1, 183 P.3d 16 (2008 MT 125) (statutory interpretation framework; avoid absurd results)
- Madison River R.V., Ltd. v. Town of Ennis, 994 P.2d 1098 (2000 MT 15) (due process and biased decision-making consideration)