Fiene, Tim

English

University of Denver

Water Law Review Volume 11 Issue 2 Article 66 1-1-2008 Faust v. Utility Solutions, LLC, 2007 MT 326, 340 Mont. 183, 173 P.3d 113 (Mont. 2007) Tim Fiene Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Tim Fiene, Court Report, Faust v. Utility Solutions, LLC, 2007 MT 326, 340 Mont. 183, 173 P.3d 113 (Mont. 2007), 11 U. Denv. Water L. Rev. 463 (2008). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSty, courts apply Indian canons of construction, which construe lan-guage in a manner Indians would naturally understand it. However,courts only apply Indian canons of construction to the benefit of In-dians. Pocatello is a city, not an Indian tribe, and cannot benefit fromthe same type of interpretation.Next, the Court pointed to two reasons why, contrary to the city'sclaim, Section 10 did not abrogate the Indians' federally reserved waterrights. First, Congress abrogated Indian treaty rights only through lan-guage clearly evidencing intent to do so. For example, Congress usedsuch clear language to abrogate Indian rights in an earlier 1885 act. Incontrast, Congress failed to include similar language in Section 10, asignal that it had no intent to abrogate any of the Indians' federallyreserved water rights. Second, the reservation treaty between the Unit-ed States and the Tribes required a majority of adult male Indians onthe reservation to consent to any abrogation of treaty rights. However,there was no record of such a majority deciding to cede water rights, afact that also defeated the city's claim.Finally, the Court rejected Pocatello's claim of federal water rightsbased on the Property Clause. The Court explained that althoughCongress had the power to grant Pocatello a federal water right underthe clause, Congress did not choose to exercise that power.The Court affirmed the SRBA court's decision, holding that the1888 act did not grant Pocatello any federal water rights. The act onlygranted access to surface water sources on the reservation and grantedthe opportunity to establish water rights under state law.Kurt KroppMONTANAFaust v. Utility Solutions, LLC, 2007 MT 326, 340 Mont. 183, 173P.3d 113 (Mont. 2007) (holding that the issuance of a final permit forthe pumping of groundwater rendered claims for injunction and at-torney fees moot, and further holding that the Water Use Act does notcreate a private right of action to enforce civil penalty provisions).On September 6, 2006, Roselee Faust ("Faust") and Sandra McMa-nus ("McManus") filed a complaint against Four Corners County Wa-ter and Sewer District ("The District") and Utility Solutions, LLC("Utility"), a private company contracted to provide water and sewerservices within The District's boundaries. Under their amended com-plaint, Faust and McManus claimed they suffered direct and irrepara-ble harm because Utility began pumping groundwater upon receivinga conditional permit for pumping groundwater from the Departmentof Natural Resources and Conservation ("DNRC"). The conditionalpermit obtained by Utility required final approval by the DNRC beforeUtility could begin legally pumping groundwater. Faust and McManussought to enjoin Utility from continuing to pump, stating that furtherIssue 2WATER LA W REVIEWgroundwater appropriations would adversely affect Faust's and McMa-nus's water rights. Additionally, Faust and McManus sought the impo-sition of civil penalties against Utility under the Montana Water UseAct. Further, Faust and McManus sought attorney fees under both theWater Use Act and the private attorney general doctrine. In responseto Faust's and McManus's claims, The District and Utility filed separatemotions to dismiss, which the court granted. The court found Faustand McManus lacked standing to enforce the Water Use Act.Faust and McManus appealed the district court's ruling to theMontana Supreme Court. Two weeks prior to the appeal, the DNRCissued final approval of Utility's groundwater pumping permit. In lightof the final issuance of the permit, Utility filed a motion to dismiss theappeals as moot. Faust and McManus argued that their claims werenot moot due to Utility's earlier unauthorized pumping. Faust andMcManus maintained their appeal against The District only with re-gards to their request for injunctive relief. The Court held that theissuance of final permits ended any on-going violations of the WaterUse Act and all claims for injunctive relief were therefore moot. TheCourt further held that Faust and McManus were not entitled attorneyfees under the Water Use Act because the act directs the award of at-torney fees only to those parties who obtain injunctive relief when en-forcing a water right.The Court then addressed Faust's and McManus's private right ofaction to enforce the civil penalty provision of the Water Use Act. TheCourt noted that whether or not a statute creates a private right of ac-tion is a matter of statutory construction. Faust and McManus arguedthat the attorney fee provision in the Water Use Act implies that the actallows for private rights of action. However, the Court noted that theattorney fee provision is only associated with injunctive relief and is notimplicated under the act's civil penalty provisions. The Court furthernoted that the statutory language stated that only actions initiated bygovernment entities could collect fines under the civil penalty provi-sion. Upon observing the legislative history of the Water Use Act, theCourt clarified that the "independent action" clause in the civil penaltyprovision referred only to actions brought by the county attorney. Fi-nally, the Court held that Faust and McManus were not entitled to at-torney fees under the private attorney general doctrine because thedoctrine requires that a claimant succeed in some measure in the un-derlying controversy.Accordingly, the Court affirmed the lower court's dismissal and didnot grant attorney fees.Tim FieneVolume I11

Faust v. Utility Solutions, LLC, 2007 MT 326, 340 Mont. 183, 173 P.3d 113 (Mont. 2007)

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Faust v. Utility Solutions, LLC, 2007 MT 326, 340 Mont. 183, 173 P.3d 113 (Mont. 2007)

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