BUTTE-SILVER BOW LOCAL GOVERNMENT, PETITIONER, v. THE STATE OF MONTANA, TREASURER OF THE STATE OF MONTANA, DEPARTMENT OF REVENUE OF THE STATE OF MONTANA, RESPONDENTS.
No. 86-270.
SUPREME COURT OF MONTANA
Decided Jan. 19, 1989.
Rehearing Denied Feb. 16, 1989.
768 P.2d 327
Submitted Dec. 2, 1988.
Mike Greely, Atty. Gen., Helena, Clay R. Smith argued, Asst. Atty. Gen., Eric J. Fehlig, Dept. of Revenue, Donald MacIntyre, Dept. of Natural Resources, for respondents.
MR. JUSTICE GULBRANDSON delivered the Opinion of the Court.
This case involves a petition for assumption of original jurisdiction filed pursuant to Rule 17, M.R.App.P. Petitioners seek a declaratory judgment declaring the Montana Resource Indemnity Trust Act (1973), (the Act), unconstitutional, insofar as it authorizes the expenditure of Resource Indemnity Trust (Trust) funds for purposes other than the reclamation of lands disturbed by the taking of natural resources. Petitioners also challenge the constitutionality of respondents’ acts in appropriating and expending Trust funds for purposes other than reclamation of lands and contend such acts are a breach of respondents’ fiduciary duties as trustees of the Trust under
The Butte-Silver Bow Local Government (Butte-Silver Bow) filed its “Petition for Declaratory Judgment on Original Jurisdiction” with the Montana Supreme Court on June 13, 1986. The petition relies on
After review of the briefs submitted, this Court remanded the action to Montana‘s First Judicial District Court, Lewis and Clark County, for determination of factual issues. Particularly, this Court requested the District Court to prepare findings of fact “as to the use and expenditures made of monies derived from the Resource Indemnity Trust Fund, through its interest earnings by the various governmental agencies under the appropriations of the Legislature.”
Petitioners raise the following issues to this Court:
1. Do the petitioners have standing and should this Court assume original jurisdiction?
2. Is the Montana Resource Indemnity Trust Act,
3. Have respondents violated their fiduciary duties as trustees by using Trust funds for purposes other than the reclamation of lands?
4. Have respondents used Trust funds for general agency operating expenses in violation of
5. Are petitioners entitled to attorney‘s fees under the common fund theory?
I
Should original jurisdiction be granted?
Petitioners’ standing to bring this action is essential to the question of our acceptance of original jurisdiction. This Court has previously held a registered voter has standing where a constitutional provision is clearly intended to benefit the public and the electorate, and by contending the provision “has been the victim of legislative strangulation.” Committee for an Effective Judiciary v. State (1984), 209 Mont. 105, 108, 679 P.2d 1223, 1225. Further, a taxpayer will have standing to question the validity of a tax, or the expenditure of the tax monies, provided the issue(s) presented directly affect the constitutional validity to collect or use the proceeds of the tax by the state or a local government entity. Grossman v. State, Dept. Natural Resources (1984), 209 Mont. 427, 438-439, 682 P.2d 1319, 1325. Individual petitioners meet the criteria necessary to establish standing both as registered voters and as affected taxpayers. Having found the individual petitioners have standing, we decline to address the question of petitioner Butte-Silver Bow‘s standing.
Once standing to bring the action is established, the question shifts to whether the action meets the necessary factors for this Court to accept original jurisdiction. This Court has found that an assumption of original jurisdiction is proper when: (1) constitutional issues of major state wide importance are involved; (2) the case in-
This petition involves a constitutional issue of major statewide importance. Petitioners are seeking an interpretation by this Court of a section of the Constitution, of a major act passed by the Legislature and a determination of the existence or absence of conflicts between the two. A decision in the petitioners’ favor clearly would have a major impact on the Legislature‘s funding of a variety of state programs.
Additionally, this petition involves only legal questions. All factual questions involving the disposition of Trust monies, have been adequately addressed in the District Court‘s findings of fact. The Court must determine the legal question of the purposes for which trust funds may or may not be utilized, and then may examine whether the appropriations made by the Legislature were authorized.
Regarding the question of whether or not this case presents sufficient urgency and emergency factors to require the Court to exercise original jurisdiction, this Court has stated:
“Resolution of the issues presented herein is necessary to eliminate or reduce a multiplicity of future litigation; . . . and to eliminate needless expenditure of public funds on procedures that otherwise might subsequently be declared illegal. One of the basic purposes of the Montana Declaratory Judgment Act is to provide for advance determination of such issues, thereby eliminating these otherwise detrimental results.”
Grossman, 682 P.2d at 1322, citing Forty-Second Legislative Assembly v. Lennon (1971), 156 Mont. 416, 420-422, 481 P.2d 330, 332-333. In light of the fact that the Legislature convened on January 2, 1989, and it will undoubtedly fund programs from the trust income which may or may not be determined constitutional by this opinion, sufficient urgency and emergency exists for exercising original jurisdiction.
II.
Petitioners’ advance three arguments on the issue of whether or not the Montana Resource Indemnity Trust Act of 1973 violates
When interpreting a constitutional provision, certain tenets must be observed. The same rules of construction which apply to determining the meaning of statutory provisions apply to constitutional provisions. Keller v. Smith (1976), 170 Mont. 399, 404, 553 P.2d 1002, 1006. The intent of the framers of the provision is controlling. Keller, 553 P.2d at 1006. However,
“[s]uch intent shall first be determined from the plain meaning of the words used, if possible, and if the intent can be so determined, the courts may go no further and apply any other means of interpretation.” (Citations omitted.)
Keller, 553 P.2d at 1006. We therefore must decide whether the plain language of
The plain language of
“All lands disturbed by the taking of natural resources shall be reclaimed. The legislature shall provide effective requirements and standards for the reclamation of lands disturbed.”
Additional subsections were added to
“(2) The legislature shall provide for a fund, to be known as the resource indemnity trust of the state of Montana, to be funded by such taxes on the extraction of natural resources as the legislature may from time to time impose for that purpose.
“(3) The principal of the resource indemnity trust shall forever remain inviolate in an amount of one hundred million dollars ($100,000,000), guaranteed by the state against loss or diversion.”
We do not find a limitation in Subsection (2) which would restrict the use of Trust funds to reclamation of lands. The subsection creates the Trust, titles the Trust and provides a source of funding for the Trust. We note that the Trust is not titled the Reclamation of Lands Indemnity Trust nor the Mining Lands Indemnity Trust, but the Resource Indemnity Trust. As words must be given their natural and popular meaning in applying statutory construction, we note that Websters 3rd New International Dictionary defines resource as “a new or a reserve source of supply or support: a fresh or additional stock or store available at need: something in reserve or ready if needed.” This definition is very broad and indicates an intent on the part of the framers of the provision to have the Trust indemnify the people of the state for the taking or using of any resource.
Examining Subsection (3), we find a limitation upon the use of the Trust in clear and unambiguous words. However, this limitation merely protects the principal of the Trust from future invasion by the Legislature. This provision may not be construed as a limitation on the use of Trust income, nor of the use of Trust principal over and above the $100,000,000 protected by Subsection (3).
Appellants claim that the inclusion of Subsections (2) and (3) in
Further, the Constitution as a whole does not support a finding of a Trust fund limitation in
For the foregoing reasons we hold the plain language of
III.
As
Petitioners first argue that respondents, as trustees of the Trust, have violated their fiduciary duties as trustees by allocating Trust funds for projects unrelated to the reclamation of lands disturbed by the taking of natural resources. We held that the plain language of the 1972 Montana Constitution does not so limit the appropriation or allocation of Trust funds, and we need only discuss whether the Montana Resource Indemnity Trust Act,
Our examination of the Act finds the appropriation or allocation of Trust funds is not limited to the reclamation of lands disturbed by the taking of natural resources. Rather, the Legislature has provided the funds “shall be used and expended to improve the total environment and rectify damage thereto.”
Petitioners also contend past and present expenditures have been made of Trust funds for general operating expenses of state agencies in violation of the express limitations in
“It is the intent of the legislature that future appropriations from the resource indemnity trust interest account not be made to fund general operating expenses of state agencies.”
Initially we note that this subsection, added by the 1985 Legislature, specifically applies to “future appropriations.” For that reason we find there could not have been a breach of fiduciary duty prior to the effective date of the statute. Further, the Legislature generally cannot pass legislation which a future Legislature may not repeal. State v. State Highway Commission (1931), 89 Mont. 205, 215, 296 P. 1033, 1036.
Upon examination of the specific violations alleged by petitioners, we find a problem of semantics. Petitioners identify appropriations made to the Department of State Lands, (DSL) the Department of Livestock, and the Department of Natural Resources in the 1987 biennium, as having been made for general operating expenses. We find it ironic that one of the expenditures, alleged as having been for “general operations,” was for the reclamation division of the DSL in 1986. The funding for the reclamation division was provided in total by Trust funds and federal funds allocated for similar use. The division is responsible for regulating mining related disturbances in the state and enforcing the following acts: the Metal Mine Reclamation Act, the Open Cut Mining Act, the Montana Strip and Underground Mine Reclamation Act, and the Underground Mine Siting Act. The activities conducted by the division are admittedly administrative in nature, but are essential to ensuring that the total environment of the state is improved and damage thereto is rectified. The argument
The allocation of Trust funds for these programs did not constitute an expenditure for general operating expenses of state agencies in violation of
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and McDONOUGH concur.
MR. JUSTICE SHEEHY, dissenting:
This decision continues what has become a commonplace in the history of the state of Montana: the State gets the gold mine, Butte gets the shaft.
The decision is about as farfetched a stretch of interpretation of a constitutional provision as can be imagined. The State Constitution requires that lands disturbed by the taking of natural resources shall be reclaimed. The Constitution further provides for a special fund to be created based solely on the extraction of natural resources. Somehow, semantically, the majority find no nexus between the two provisions, all contained in the same constitutional article.
The close tailoring of the tax on the extraction of natural resources to the constitutional mandate that all lands disturbed by the taking of natural resources be reclaimed is ignored. Somehow the obvious connection between the tax and the purpose of the tax escapes the facile interpretation of the majority.
In their response to the petition, the state of Montana and its Treasurer admitted that the 1985 legislature “utilized a portion of the interest income from the Resource Indemnity Trust fund to fund general operating expenses of state agencies.” (Paragraph 11, response to amended petition.) Yet the majority see nothing inconsistent in permitting the State to fund its general operating expenses from a fund constitutionally entitled “Resource Indemnity Trust.” A trust by any other name remains a trust, and a breach of
The Resource Indemnity Trust was never intended to fund the general operations of the State. Other taxes levied upon extractors of natural resources amply provide for the general expenses of state government. The coal severance tax (
“It is the policy of the state of Montana to indemnify its citizens for the loss of long term value resulting from the depletion of its mineral resource base and for environmental damage caused by mineral development. This policy of indemnification is achieved by establishing a permanent Resource Indemnity Trust Fund from the proceeds of a tax levied on mineral extraction and by allocating spendable trust revenues:
“(1) To protect and restore the environment from damages resulting from mineral development; and
“(2) To support a variety of development programs that benefit the economy of the State and the lives of Montana citizens.”
How blatant will the extraneous use of Resource Indemnity Trust taxes become? To begin with, 30 percent of the interest income of the Resource Indemnity Trust Fund must now be allocated to the water development state special revenue account.
The preservation and proper use of water is necessary to the well-being of this dry western state, but the expense of such preservation should never be fobbed off on a tax levied solely on mines and oil and gas operations, a tax ostensibly levied for the purpose of land reclamation.
I take the position that since land reclamation is constitutionally demanded, and since the Constitution provides a method through the Resource Indemnity Trust Fund to pay for such reclamation, that monies raised from taxes on parties who extract the natural resources should be limited to the purposes of the tax. The legislature, by resorting to special tax funds to provide for general fund obligations is creating an unequal and unfair burden on these special taxpayers and we should not countenance it.
MR. JUSTICE HUNT concurs in the foregoing dissent of MR. JUSTICE SHEEHY.