NO. 942347
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MATTER OF KALFELL RANCH, INC.,
a Corporation
PRAIRIE COUNTY COOPERATIVE
STATE GRAZING DISTRICT,
Petitioner, Appellant
and Cross-Respondent,
-VS-
KALFELL RANCH, INC., a Corporation,
Respondent, Respondent
and Cross-Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Prairie,
The Honorable R.C. McDonough, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas M. Monaghan; Lucas & Monaghan, Miles
City, Montana
For Respondent:
Lorraine A. Schneider; Simonton, Howe &
Schneider, Glendive, Montana
Robert R. Throssell, Special Attorney General;
Keller, Reynolds, Drake, Johnson & Gillespie,
Helena, Montana (for Montana Board of Natural
Resources and Conservation)
Submitted on Briefs: October 28, 1994
Decided: December 22, 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
The Prairie county Cooperative State Grazing District
(District) appeals from a judgment entered by the Seventh Judicial
District Court, Prairie County, affirming a decision by the Board
of Natural Resources and Conservation (BNRC) which reversed, in
part, a decision of the District. Kalfell Ranch, Inc. (Kalfell)
cross-appeals from the court's determination that the BNRC's
failure to address certain of its claims constituted an implied
denial of the claims and the court's affirmance of that denial on
the merits. We affirm on both the appeal and the cross-appeal.
The District raises the following issue on appeal:
Is § 76-16-414, MCA, rather than § 76-16-403, MCA,
applicable in this case?
Kalfell raises the following issue on cross-appeal:
Whether the District Court erred in determining that, by
failing to address claims raised by Kalfell, the BNRC in
effect denied them and in denying them on the merits?
FACTUAL AND PROCEDURAL BACKGROUND
The District is a cooperative state grazing district
authorized and organized under Title 76, Chapter 16, of the Montana
Code Annotated, known as the Montana Grass Conservation Act (Act).
It was organized in the 1930s and has operated continuously since
that time. The District includes lands owned by private entities
(such as the Burlington Northern Railway or its subsidiaries);
state lands (such as school trust lands); and federal lands under
the jurisdiction of the Bureau of Land Management (BLM). Large
portions of the lands within the District are controlled by the
2
BLM, although leased to the District.
Kalfell, a ranch corporation, is a member of the District.
Members receive grazing preferences under the provisions and
procedures of the Act. Grazing preferences are rights to obtain
grazing permits from a state grazing district; they are measured
in animal unit months (AUMs) . A permit is evidence of grazing
privileges granted by such a district.
Originally, most of the livestock grazing within the District
was done in common pastures. Over time, particularly in the 1950s
and 1960s and in large part as a result of BLM actions in
administering lands under its control, individual fenced units came
into being on which District members grazed their livestock.
Leases of federal lands were granted in the names of the permittee
and the District. Leases of state lands ultimately were in the
names of the permittees. Fencing agreements were executed between
the various permittees and BLM. Thus, over the years, many of the
lands within the District changed from common use to individual
use; a limited number of common pastures remained. Some
permittees had lands within their individual pasture which
consisted primarily of federal lands; others had portions of
federal, state and private lands.
The lands involved in this case were privately owned by
Glacier Park Company (Glacier), a subsidiary of Burlington Northern
Railway, and leased by the District. Twenty-six District
permittees exercised grazing preferences on the Glacier lands. In
1989, Glacier decided to sell these lands and cancelled its leases
3
with the District. The District elected not to purchase the lands.
It asked Glacier to first offer the lands for sale to the
permittees within whose fenced units the lands were located; if the
permittee did not purchase it, the land should be offered next to
a neighbor of the permittee and, finally, the land should be
offered for sale to the general public.
Glacier acquiesced in the District's request. Twenty-five of
the twenty-six permittees exercising grazing preferences on the
Glacier lands purchased the land within their respective fenced
unit. Kalfell was unable to purchase the approximately six and
one-half sections of Glacier land located within its pastures.
Glacier subsequently sold that land to a neighbor of Kalfell.
Because of the District's loss of the six and one-half
sections of Glacier land on which 7,828 grazing preferences--out of
a total of 124,890--were exercised, the District could not provide
the affected permittees with sufficient land upon which to exercise
the entirety of their grazing preferences. As a result, the
permittees could not exercise some of their grazing preferences;
Kalfell was unable to use 966 of its grazing preferences or ADMs.
The District's board of directors tendered monetary
compensation to the twenty-six affected permittees, purportedly
pursuant to 5 76-16-414(Z), MCA. The compensation per AUM was
approximately $5.72, and the total compensation offered to each
permittee varied, depending on the number of AUMs each could no
longer use.
Twenty-five of the twenty-six affected permittees accepted the
4
District's offer of compensation. Kalfell, which was unable to use
the second highest number of AUMs, did not accept the $5,526.97
tendered by the District's board of directors.
Kalfell requested a hearing before the District. It contended
that the loss of the Glacier lands must be shared by all members of
the District and not borne solely by the twenty-six directly
affected members. It argued that § 76-16-403, MCA, providing for
a proportionate reduction of all members' grazing privileges, was
the applicable statute and that the District's board of directors
had erred in proceeding under § 76-16-414, MCA. It also alleged in
pertinent part that the board of directors breached its fiduciary
duty in failing to purchase the Glacier land, failed to enforce
statutes and rules which prohibit competitive bidding, and failed
to collect the value of, and compensate it for, improvements made
to Glacier lands.
After a hearing in which testimony and exhibits were received,
the District issued its Decision of Board on August 11, 1992. It
determined that the board of directors had acted properly in
applying § 76-16-414, MCA, and that the compensation offered to
Kalfell was the appropriate remedy. It rejected Kalfell's claims
that the board of directors was obligated to purchase the Glacier
(or substitute) land and to collect the value of, and compensate
Kalfell for, improvements to the Glacier land. It indirectly
addressed Kalfell's claim that the board of directors failed to
follow statutes and rules which prohibit competitive bidding by
focusing on the undisputed fact that the transactions by which
5
Glacier disposed of its lands were private sales over which the
District had no control.
Kalfell appealed to the BNRC pursuant to § 76-16-109, MCA.
Pursuant to that statute, the BNRC heard oral argument but neither
requested nor received additional testimony or exhibits. The
BNRC's Opinion and Order reversed the District's conclusion that
5 76-16-414, MCA, was applicable. The BNRC concluded that, when
the District was unable to meet the needs of those holding grazing
preferences because of the sale of the Glacier lands, it was
obligated by § 76-16-403, MCA, to proportionately reduce all
grazing preferences. The BNRC rejected Kalfell's claim that the
District was required to purchase either the Glacier land or other
grazing land sufficient to meet the assigned grazing preferences;
it did not address Kalfell's claims relating to competitive bidding
and compensation for its improvements to the Glacier land.
The District petitioned, and Kalfell cross-petitioned, for
judicial review of the BNRC's Opinion and Order. The District
Court upheld the BNRC's conclusion that § 76-16-403, MCA, is
applicable. It further determined that the Board's failure to
address Kalfell's other claims constituted an implied denial of
those issues, a denial with which the court agreed on the merits.
Both parties appeal from the District Court's judgment.
STANDARD OF REVIEW
Section 2-4-704, MCA, sets forth the statutory standards for
judicial review of an administrative agency's decision. We have
interpreted those statutory standards to mean that an agency's
6
findings of fact are subject to review' to determine whether they
are clearly erroneous. GBN, Inc. v. Montana Dep't of Revenue
(1991), 249 Mont. 261, 264, 815 P.2d 595, 596 (citation omitted).
An agency's conclusions of law are reviewed to determine whether
they are correct. GBN, Inc., 815 P.2d at 597.
We recently have clarified that, in multi-level proceedings
and reviews under the Montana Administrative Procedure Act (MAPA),
the "agency" decision to be scrutinized on judicial review is that
of the agency which issued the initial decision. See Baldridge v.
Board of Trustees (1994), 264 Mont. 199, 870 P.Zd 711. Here, that
agency decision is the District's Decision of Board dated August
11, 1992.
Is 5 76-16-414, MCA, rather than § 76-16-403, MCA,
applicable in this case?
The District contends that its original decision that § 76-16-
414(2), MCA, applies to the facts and circumstances of this case
was correct as a matter of law and that the BNRC and the District
Court erred in applying § 76-16-403, MCA. Section 76-16-414, MCA,
provides in its entirety as follows:
76-16-414. Equalization of district assets. (1)
Whenever a state district shall possess reserves, the
values of which are greater than its liabilities, and the
state district shall determine that a part of such
reserves is in excess of its reasonable needs to operate
the district, such state district may refund to the
permittee members their proportionate share of such
reserves as determined at the last annual accounting.
(2) Whenever a state district shall possess
reserves and physical assets, the values of which are
greater than its liabilities, and a permittee member
shall lose his grazing preference, he shall be entitled
to receive his proportionate share of the value of such
excess from the state district, as determined by the
annual accounting of the state district. The state
7
district may set off the amount of 'any claim it may have
against such former member.
(3) Whenever a new member shall receive a grazing
preference, he shall, as a condition of receiving such
preference, pay to the state district the value of the
equitable interest in the physical assets and reserve
fund which accrues to him by virtue of such membership.
Such value shall be determined at the time of receiving
such preference and upon the basis of the determination
of value of such physical assets and reserves made at the
last annual accounting.
Section 76-16-403, MCA, provides:
76-16-403. Procedure if reduction in grazing
privileges necessary. If reductions in grazing privileges
become necessary, operators with temporary permits will
be reduced first on a proportionate basis. When the
extent of reduction of privileges exceeds that of
temporary permits, then the rights of operators with both
dependent commensuratepropertyand commensurate property
shall be reduced together on a proportionate basis.
Our role in construing statutes is clear; we must 'Iascertain
and declare what is in terms or in substance contained therein . .
. I.'I we may not insert what has been omitted or omit what has been
inserted. Section l-2-101, MCA; Curtis v. Dist. Court of 21st Jud.
Dist. (Mont. 1994), 879 P.Zd 1164, 1166, 51 St.Rep. 776, 778. The
intent of the legislature is to be pursued and effectuated.
Section l-2-102, MCA; Curtis, 879 P.2d at 1166; Minervino v.
University of Montana (1993), 258 Mont. 493, 496, 853 P.2d 1242,
1244. We look first to the plain meaning of the words used in the
statute. Stansbury v. Lin (1993), 257 Mont. 245, 249, 848 P.2d
509, 511. If the legislative intent can be determined from the
plain language of the words used, we may not go further and apply
other means of interpretation. Curtis, 879 P.2d at 1166 (citation
omitted). It is only when the intent cannot be determined from the
language of the statute that we will examine the legislative
8
history. State ex rel. Roberts v. Public Service Com'n (1990), 242
Mont. 242, 246, 790 P.2d 489, 492 (citations omitted).
The District contends that § 76-16-414(2), MCA, is the
specific remedy provided by the Montana legislature for the
situation which occurred upon the District's loss of control of the
Glacier lands. The District maintains that Kalfell "lost" its
grazing preference and, therefore, was entitled to only a
proportionate share of the District's assets, as offered by the
District, pursuant to § 76-16-414(2), MCA. It cites no statutory
or case authority in support of its contention that preferences
were "lost;" furthermore, the plain language of 5 76-16-414, MCA,
does not support the District's position.
Kalfell did not "lose" any grazing preferences or permits via
Glacier's sale of the lands at issue here; it merely became unable
to exercise its preferences because of the District's loss of the
Glacier lands. Grazing preferences--rights to obtain grazing
permits--are statutory creations which are determined and
distributed pursuant to statutory requirements. Sections 76-16-
103(7) and 76-16-401, MCA. They can be transferred pursuant to
statute. See, e.q., § 76-16-406, MCA. Grazing preferences also
may be revoked pursuant to statute. Section 76-16-412, MCA. No
statute provides for the evaporation, extinguishment, or loss of a
grazing preference as a result of the loss of control of land by a
grazing district. As a result, we reject the District's underlying
premise that Kalfell lost grazing preferences upon the sale of the
Glacier lands.
9
Moreover, the District's argument ignores the final sentence
of § 76-16-414(Z), MCA. The inclusion there of the term "such
former member" clarifies that the remedy provided therein is
available only when a member loses the entirety of its grazing
preference(s) and, as a result, is no longer a member of the
District. Notwithstanding the parties' dispute over whether
Kalfell actually "lost" any of its grazing preferences, it is
undisputed that Kalfell did not lose the entirety of its grazing
preferences and that it remains a permittee member of the District.
We conclude that the language of § 76-16414(2), MCA, is clear,
unambiguous and plain in expressing the legislature's intent; it
permits of no additional interpretation by this Court. See Curtis,
879 P.2d at 1166.
In addition, reading subsection (2) in the context of the
entirety of § 76-16-414, MCA, further clarifies that the
legislature's purpose in enacting the statute was, as its heading
denotes, to equalize a district's assets under three distinct
scenarios. Subsection (1) provides the method of equalizing assets
when a district determines it has reserves in excess of its
reasonable needs; subsection (2) provides for equalization when a
permittee member loses its grazing preference(s) altogether and, as
a result, becomes a former member; and subsection (3) provides for
equalization when a new member receives a grazing preference.
Section 76-16-414, MCA. None of those scenarios is before us here.
Nor can we accept the District's argument that its, and
members', agreements with the BLM--by which BLM lands within the
10
District were individually allotted and individual units were
fenced--changed the fundamental nature of the grazing preferences
assigned and managed by it pursuant to state law. In essence, the
District contends that its involvement with federal agencies under
the federal Taylor Grazing Act (43 U.S.C. 55 315 et seq.) allows it
to ignore or violate Montana statutes by ceding control of the
District to the BLM. It is undisputed that the District was
established pursuant to §§ 76-16-201 et seq., MCA. While the Act
is intended to provide a means of cooperation with federal agencies
involved with the Taylor Grazing Act, the District cannot exercise
powers inconsistent with the Montana Act in doing so. See §§ 76-
16-102 and 76-16-204(2) (f), MCA. We conclude that the District
erred in concluding that § 76-16-414, MCA, is applicable to the
facts before us.
Section 76-16-403, MCA, on the other hand, is clearly
applicable here by its terms. There is no question but that the
District's loss of control over the Glacier lands impacted on
assigned grazing preferences. Some 50,000 fewer acres were
available on which members could exercise their grazing preferences
and the District did not purchase or, apparently, lease new lands
to enable members to fully exercise their preferences. Thus, the
impact on members' ability to exercise their grazing preferences
resulted from the inadequacy of lands under the District's control,
not from the "loss" of any grazing preferences. Under such a
circumstance, "reductions in grazing privileges become necessary,"
as specifically contemplated in 5 76-16-403, MCA. The statute
11
provides for reducing grazing privileges on a proportionate basis.
We conclude that the District erred in concluding that 5 76-16-403,
MCA, is not applicable here.
The District also argues that application of § 76-16-403, MCA,
produces an impossible result. It asserts that, because of the
change in grazing characteristics in the District from large,
unfenced common pastures to individual units, it could not have
apportioned the "loss" of the 7,828 grazing preferences resulting
from the loss of control of the Glacier lands at the time the lands
were sold and cannot now apportion the 966 preferences Kalfell is
unable to exercise.
The means by which the District can, or must, comply with
clearly applicable statutes is not an issue before us in this case.
Boiled down to its essence, the District's argument is that,
because it did not seek amendments to the Act as grazing
characteristics changed over the years, this Court should relieve
it from a difficult situation by ignoring the rules of statutory
construction regarding plain and unambiguous statutory language.
Suffice it to say that we cannot alter the clear language of
applicable statutes; only the legislature can do so.
Having concluded that the District erred as a matter of law in
applying § 76-16-414(2), MCA, we hold that the BNRC and the
District Court did not err in concluding that § 76-16-403, MCA,
rather than 5 76-16-414, MCA, applies in this case.
Did the District Court err in determining that, by
failing to address claims raised by Kalfell, the BNRC in
effect denied them and in denying them on the merits?
12
There is no question but that procedural requirements were not
strictly met in this case by either the District or the BNRC. The
District's Decision of Board did not strictly comply with the
requirements of § 2-4-623, MCA, which may stem from the District's
unfamiliarity with conducting proceedings under the MAPA. We
caution the District--and other grazing districts which may conduct
such proceedings--that our willingness to overlook nondispositive
irregularities in the format and content of its Decision of Board
in this case, partly because Kalfell did not raise the issue,
should not be interpreted to mean that we will countenance such
irregularities in future cases reaching us under the Grass
Conservation Act. Like all entities and proceedings to which the
MAPA applies, grazing districts will be held to applicable
statutory requirements.
Similarly, the BNRC did not rule on all claims appealed to it
by Kalfell; these omissions, like those of the District, are not
dispositive here. We encourage the BNRC, however, to more
carefully review the record before it in future cases in order to
properly consider and resolve all issues.
As set forth above, the decision we must scrutinize on appeal
to this Court is the District's Decision of Board. In discussing
this issue, then, we review the District's determinations a)
rejecting Kalfell's claim that its board of directors violated a
fiduciary duty in failing to purchase the Glacier lands; b)
indirectly rejecting Kalfell's claim that its board of directors
failed to enforce statutes and rules which prohibit competitive
13
bidding; and c) rejecting Kalfell's claim for reimbursement for
improvements it made to Glacier land. Because these determinations
are, in essence, conclusions of law based on a largely undisputed
record, we review the District's conclusions to ascertain whether
they are correct. GBN, Inc., 815 P.2d at 597.
a. Duty to Purchase
Kalfell claims that the District's board of directors had an
affirmative duty to purchase the Glacier lands, or substitute land,
in order to enable the District's members to exercise their grazing
preferences in full. It argues that 5 76-16-102, MCA, which states
that one of the purposes for establishing the Act under which the
District was formed is to provide for the stabilization of the
livestock industry, and § 76-16-305(2), MCA, authorizing the
District to purchase lands--taken together--mandate a conclusion
that the District's board of directors abused its discretion and
violated its fiduciary duty in failing to purchase the Glacier
lands or other land in order to provide sufficient land under the
District's control on which members could exercise their grazing
preferences in full. We disagree.
The legislature's stated purposes in enacting the Grass
Conservation Act are broad statements of guiding principles; they
do not require a grazing district to take specific actions. See§
76-16-102, MCA. Section 76-16-305(2), MCA, provides that a grazing
district may purchase or lease lands when necessary to comply with
the purposes of the Act; the authorizing language clearly is
discretionary. Nothing in the statutory framework under which the
14
District operates requires it to purchase such lands.
In addition, as discussed above, 5 76-16-403, MCA, clearly
contemplates the situation which arose here and provides a method
for remedying a loss of land which results in the inability of
members to exercise their full grazing preferences. Kalfell,
having asserted the correct interpretation of § 76-16-403, MCA, in
countering the District's position regarding applicability of § 76-
16-414, MCA, cannot now be allowed to ignore the clear language of
that statute and argue, inconsistently, that the District's board
had an obligation to purchase land rather than to proportionately
reduce members' grazing preferences. We hold that the District did
not err in concluding that its board of directors was not required
to purchase either the Glacier lands or substitute land.
We note that the BNRC did address this issue by stating in its
Opinion that "Nothing in statute requires the District to purchase
grazing land." Thus, on this issue, the BNRC and the District
Court correctly determined, as a matter of law, that the District's
rejection of this claim by Kalfell was not error.
b. Statutes and Rules Prohibiting Competitive Bidding
Kalfell claims that the District's board of directors failed
to enforce both 5 76-16-412(2), MCA, and the terms and conditions
contained in its grazing permits by not revoking the preferences of
Fluss Ranch, Inc. (Fluss), Kalfell's neighbor, based on its
prohibited competitive bidding in purchasing the Glacier land
within Kalfell's individual unit. The District obliquely addressed
this claim by focusing on the undisputed fact that the sale of
15
Glacier's land to Fluss was a private sale over which it had no
control.
Section 76-14-412(2), MCA, authorizes a grazing district to
revoke preferences if a permittee violates any of the district's
rules. The District's rules, printed on the grazing permits issued
to its members, prohibit a permittee from entering into competitive
bidding "against the district or any member thereof for the lease
of grazing lands in the district which are within any member's
allotment." The rules also allow the permit to be cancelled for
violation of any of the rules or regulations of the District.
Taken together, § 76-14-412, MCA, and the District's rules
allow revocation of preferences or cancellation of permits for
rules violations by a permittee; neither requires it. Where the
language of a statute is plain and unambiguous, we must give that
language full effect. Curtis, 879 P.2d at 1.166. Here, decisions
to revoke preferences or cancel permits are entirely discretionary
with the District.
Moreover, the rule prohibiting competitive bidding is
inapplicable here as a matter of law. Insofar as is relevant here,
the rule prohibits competitive bidding against another member for
the lease of grazing lands in the District which are within the
other member's allotment. Here, the sale of the Glacier land was
clearly not a "lease" of that land to which the rule would apply.
We hold that the District was correct as a matter of law in
rejecting this claim by Kalfell.
We note that the BNRC did not address this issue. Again, we
16
encourage the BNRC to more carefully review the record and issues
before it in its decision-making process. A full analysis of this
issue by the BNRC could conceivably have prevented an appeal,
saving the parties time and expense.
c. Improvements
Kalfell asserted at the District, the BNRC and the District
Court that it was entitled to the value of improvements it made to
the Glacier land and that the District was obligated, pursuant to
5 76-16-410, MCA, to collect the value of such improvements from
Fluss on its behalf. The District rejected this claim, concluding
that the statute did not apply. The BNRC did not address this
issue in considering Kalfell's appeal from the District's Decision
of Board.
We note that Kalfell's presentation of this issue appears to
have shifted somewhat on appeal to this Court. Kalfell now appears
to assert only that it was an abuse of discretion for the District
not to recover the value of the improvements "for the benefit of
the District." We address the issue as it originally was raised
at, and rejected by, the District.
Section 76-16-410, MCA, states that subsequent owners of land
must compensate a grazing district for the value of range
improvements constructed with the consent of the owner upon lands
leased by the district. Kalfell's argument that, pursuant to the
statute, the District was obligated to collect the value of the
improvements from Fluss and pay it over to Kalfell--or add it to
Kalfell's equity in the District--is totally unsupported by the
17
language of the statute. The statute speaks only to compensation
of the grazing district, not to any obligation of a district to
collect those funds for payment to a previous lessee.
Furthermore, the statute addresses only improvements in which
a grazing district itself is involved. Here, Kalfell's own
testimony was that the District was not involved in its decision to
make the improvements and, indeed, that it had not made any
agreement with Glacier as to ownership of the improvements in the
event Glacier sold the land. We conclude that § 76-16-410, MCA, is
not applicable to the facts before us and, therefore, that neither
the District nor the District Court erred in rejecting Kalfell's
claim based on that statute.
Affirmed.
We concur:
18
Justice William E. Hunt, Sr., specially concurring.
I concur in the result of the majority opinion, but not in all
that is said therein.
19