Fortner v. Broadwater Conservation Dist.
2021 MT 240
| Mont. | 2021Background
- Broadwater Conservation District (BCD) alleged Tracy and Marcy Fortner made unpermitted disturbances in Montana Gulch, a tributary altered by historic mining and now lacking perennial surface flow in mid/lower reaches.
- The Fortners requested a declaratory ruling that BCD lacked jurisdiction because Montana Gulch was not a "stream" under § 75-7-103(6), MCA, given its current intermittent surface flow.
- BCD appointed a hearing officer who proposed limited jurisdiction (upper reaches perennial; lower reaches not), citing lack of pre-mining records; BCD supervisors rejected that proposal and concluded the gulch would have flowed perennially but for mining.
- The District Court reviewed and upheld BCD's final declaratory ruling, finding agency interpretation and factual determinations reasonable; the Fortners appealed to the Montana Supreme Court.
- Key factual disputes involved (a) historical evidence of surface flow, (b) whether mining disturbed clay layers/created porous valley fill causing flows to go underground, and (c) the role of groundwater/subsurface flow.
Issues
| Issue | Plaintiff's Argument (Fortner) | Defendant's Argument (BCD) | Held |
|---|---|---|---|
| Whether a stream that is not currently perennial but would be absent human alterations may be a "natural, perennial-flowing stream" under § 75-7-103 | A stream must currently be natural and perennial; non-perennial now defeats jurisdiction | Agency rules allow treating a stream as perennial if it dries periodically due to man-made causes; "would have flowed" is relevant | Affirmed: such a stream may be classified as natural, perennial-flowing when it would have flowed continuously absent human activity |
| Whether pre-1975 flows may be considered to determine Streambed Act jurisdiction | Jurisdiction can only attach if the stream was perennial in 1975 when the Act passed | Historical (pre-1975) evidence is relevant to whether the waterway is naturally perennial | Affirmed: agency may consider pre-1975 conditions and human alterations in the jurisdictional inquiry |
| Whether BCD's factual finding that mining caused loss of perennial flow was arbitrary and capricious | Evidence (expert and historical sources) supports that the gulch has always been intermittent due to geology | Mixed record but sufficient evidence (disturbed clay, valley fill, mine workings) supports inference mining drove flows underground | Affirmed: not arbitrary or capricious; agency reasonably weighed conflicting evidence |
| Whether agency improperly relied on groundwater/subsurface flow when classifying the stream | Groundwater is not a "stream" and should not determine Streambed Act jurisdiction | Groundwater and its connection to surface flow are relevant; agency did not treat groundwater alone as the stream | Affirmed: considering groundwater/subsurface flow as part of the analysis was permissible |
Key Cases Cited
- City of Livingston v. Park Conservation Dist., 371 Mont. 303 (addresses standard for judicial review of conservation district agency findings)
- Bitterroot River Protective Ass'n v. Bitterroot Conservation Dist., 346 Mont. 507 (discusses effect and extent of human alteration when interpreting Streambed Act jurisdiction)
- Paulson v. Flathead Conservation Dist., 321 Mont. 364 (upholds jurisdiction where a river once flowed before impoundment; historic channel relevant)
- Mont. Trout Unlimited v. Dep't of Natural Resources & Conservation, 331 Mont. 483 (evaluates agency statutory interpretation standards)
- Stalowy v. Flathead Conservation Dist., 400 Mont. 266 (permits considering subsurface/groundwater flow when human activity caused surface flow loss)