rj ORIGINAL 07/28/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0596
DA 21-0596
STATE OF MONTANA; and MONTANA
DEPARTMENT OF NATURAL RESOURCES JUL 2 8 2022
AND CONSERVATION, Bowen Greenwood
Clerk of Supreme Court
State of rviontana
Plaintiffs and Appellees,
ORDER
v.
AVISTA CORPORATION, a
Washington corporation,
Defendant and Appellant.
This matter arises from a 2004 complaint for declaratory relief that Appellant Avista
Corporation and PPL Montana, LLC, filed to contest the State of Montana's claim that it
was entitled to collect rent for riverbed acres occupied by hydropower projects owned by
the two companies. The case comes before the Court on Avista's appeal of the First
Judicial District Court's October 26, 2021 Order concluding that Avista is not entitled to a
credit or refund for rent previously paid to the State under the parties' 2007 Settlement and
Consent Judgment.
Three provisions of the Settlement and Consent Judgment are at issue, referred to
as the Most Favored Nations Clause (MFNC), the Government Reopener, and the Judicial
Reopener. Each clause calls for retroactive reduction or modification of Avista's agreed
rent depending on the occurrence of some triggering event. The District Court found
"undisputed" that none of the triggering events had occurred. Because the provisions had
not been triggered, the court concluded that Avista was not entitled to a rent adjustment "at
this time." The court continued on to analyze whether, once triggered, either the MFNC
or the reopener clauses would entitle Avista to apply a reduced rental rate back to all of its
previous payments under the Consent Judgment. It concluded they would not. Avista asks
this Court to conclude that, if the clauses are triggered, Avista is entitled to a credit or
refund under the bargained-for provisions. The State urges the Court to affirm, arguing
that the District Court correctly concluded that Avista is not entitled to a refund if a
triggering event occurs under the MFNC or the reopener clauses.
The judicial power of Montana's courts is limited to "justiciable controversies."
Plan Helena, Inc. v. Helena Regl. Airport Auth. Bd., 2010 MT 26, ¶ 6, 355 Mont. 142, 226
P.3d 567. Among the central concepts of justiciability is ripeness, "which is concerned
with whether the case presents an 'actual, present' controversy" "as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts, or upon an
abstract proposition." Reichert v. State, 2012 MT 111, 1 53, 54, 365 Mont. 92, 278 P.3d
455 (citations and internal quotations omitted). Though neither party discusses it,
justiciability is "a threshold question which this Court must raise and address sua sponte
even if it has not been raised by the litigants." Moody's Mkt., Inc. v. Mont. State Fund,
2020 MT 217, ¶ 18, 401 Mont. 168, 471 P.3d 68. The Court desires the parties' views on
whether the issues Avista raises on appeal present a justiciable controversy or call for an
advisory opinion if the provisions of the Settlement and Consent Judgment have not been
triggered.
IT IS THEREFORE ORDERED that the parties shall have thirty days from the date
of this Order in which to file simultaneous supplemental briefs, limited to 5,000 words
each, addressing the question whether the issue is ripe for consideration if none of the
triggering events have occurred.
The Clerk is directed to notify all counsel of record of the entry of this Order.
For the Court,
By
cting Chief Justice
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