NO. 94-087
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
LEN WALLACE and PAMELA WALLACE,
d/b/a BIG VELVET RANCH,
Applicants and Appellants,
-vs-
APPEAL FROM: District Court of the Twenty-First Judicial Dist.,
In and for the County of Ravalli,
The Honorable Jeffrey Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ward Swanser; Moulton, Bellingham, Longo & Mather,
Billings, Montana
For Respondents:
Robert N. Lane and Beate Galda, Montana Department
of Fish, Wildlife and Parks, Helena, Montana
Submitted on Briefs': October 28, 1994
Decided: January 24, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Len and Pamela Wallace (Wallaces), doing business as the Big
Velvet Ranch, appeal from the findings, conclusions, and judgment
of the Twenty-First Judicial District Court, Ravalli County,
denying their application for a writ of mandamus directing the
Montana Department of Fish, Wildlife, and Parks (Department) to
issue a license for expansion of their game farm. We affirm.
Early in 1992, the Wallaces obtained a license from the
Department for the operation of a 160-acre game farm located in
Ravalli County, Montana. Over the next year, the Wallaces applied
for, and received, expansion licenses for approximately 1,904
additional acres.
In early 1993, the Wallaces became aware that House Bill 338,
containing extensive revisions of the game farm licensing statutes,
had been introduced in the Montana legislature. They submitted an
expansion application to add 2,600 acres to their game farm on
March 15, 1993; the Department received the application on March
22, 1993. Before the Department was required to act on the
application, House Bill 338 was approved and became effective on
April 12, 1993. Section 18, Chap. 315, 1993 Mont. Laws 982. The
Department notified the Wallaces that their application would be
subject to the amended game farm licensing procedure.
The Wallaces demanded that the Department review the
application and issue the license under the law in effect on the
date the application was submitted. The Department denied the
Wallaces’ request and refused to issue the license under s 87-4-
409, MCA (1991); it imposed the requirements of 5 87-4-409, MCA
(19931, on the Wallaces' application.
The Wallaces then applied to the District Court for a writ of
mandamus directing the Department to issue the game farm license
pursuant to the 1991 version of the statute. The District Court
issued the writ, directing the Department to issue the license or,
in the alternative, to appear and show cause why it had not done
SO. Following a hearing, the District Court issued findings of
fact, conclusions of law, and a judgment quashing the writ and
denying the W a lapplication for a writ of mandamus.
laces' The
Wallaces appeal. Additional facts are included in our discussion
of the issues.
As amended by the 1993 legislature, the game farm licensing
statutes imposed different obligations on both license applicants
and the Department. Section 87-4-409(3), MCA (1993), provides the
Department 120 days, rather than sixty days, to notify an applicant
of its proposed decision on an application. Section 3, Chap. 315,
1993 Mont. Laws 974. In addition, the Department is now authorized
to determine that an environmental impact statement is required
with regard to an application; in that event, the Department has an
additional 180 days within which to act on the application.
Section 3, Chap. 315, 1993 Mont. Laws 974. The legislature also
amended fi 87-4-411, MCA, to increase the initial license fee from
$100 to $200. Section 5, Chap. 315, 1993 Mont. Laws 976.
It is undisputed that 5 87-4-409, MCA (1993), was not
3
expressly declared to be retroactive and, as a result, that the
District Court correctly concluded that it was not, by its terms,
a retroactive law. See § l-2-109, MCA. The dispositive issue
before us is whether the District Court erred in concluding that
subjecting the Wallaces' expansion license application to § 8?-4-
409, MCA (1993), did not constitute an impermissible retroactive
application of that statute. We review a district court's
conclusions of law to determine whether they are correct. Saint
Vincent Hosp. v. Blue Cross (1993), 261 Mont. 56, 60, 862 P.2d 6,
8.
A retroactive law is defined as one "which takes away or
impairs vested rights acquired under existing laws or creates a new
obligation, imposes a new duty, or attaches a new disability in
respect to transactions already passed." Saint Vincent Hosp., 862
P.2d at 9; citing City of Harlem v. State Highway Comm'n (1967),
149 Mont. 281, 284, 425 P.2d 718, 720. Any such imposition on a
vested right or past transaction is sufficient to constitute an
impermissible retroactive application of a statute. See Thayer v.
Hicks (1990), 243 Mont. 138, 157, 793 P.2d 784, 796.
A. Did the Wallaces have a vested right to receive a
game farm license by virtue of submitting an application
prior to the effective date of the 1993 amendments to 5
87-4-409, MCA?
The evidence presented to the District Court characterized the
pre-amendment game farm application process as a "formality" and
established that the Wallaces were qualified applicants under 5 87-
4-409, MCA (1991); licensure pursuant to that statute had
4
previously been a virtual certainty. Based on that evidence, the
Wallaces argue that they acquired a vested right to approval of
their license application on submission of that application and
that the Department's review under the provisions of 5 87-4-409,
MCA (1993), constituted an impermissible retroactive application of
that statute.
"A license is a grant by a government authority or agency of
the right to engage in conduct that would be improper without such
a grant. The conferment of a license . . . is merely a privilege
. . . II 4 Stein, Mitchell, Mezines, Administrative law, 5 41.01
(1994); West-Mont Community Care v. Board of Health (1985), 217
Mont. 178, 182, 703 P.2d 850, 852. The Wallaces clearly are not
entitled to operate a game farm on their property without first
obtaining a license from the Department, and obtaining a license
requires compliance with applicable statutory criteria. Section
87-4-407(l), MCA; see State ex rel. Dep't of Health and Env. Sci.
v. Green (1987), 227 Mont. 299, 303-04, 739 P.2d 469, 472-73.
Similarly, in making a decision on a license application, the
Department is required to act in accordance with the statutes
circumscribing its powers. & Peterson v. Livestock Comm'n
(1947), 120 Mont. 140, 147, 181 P.2d 152, 156. As a general rule,
the Department's decision on a license application must be based on
the law in effect at the time of that decision despite the fact
that the law may have changed. Ziffrin, Inc. v. United States
(194X), 318 U.S. 73, 78, 63 S.Ct. 465, 469, 87 L.Ed. 621, 625-26;
see also, Wilson v. State Highway Comm'n (19621, 140 Mont. 253,
5
257, 370 P.2d 486, 488.
The Wallaces' mere submission of an application for expansion
of their game farm did not vest in them a right to issuance of the
license as of the date the application was submitted. Section 07-
4-409, MCA (1991), is captioned "Application for license-
limitations on issuance;'q subsection (3) of the statute authorizes
the Department to review, and either grant or deny, an application
within sixty days. Thus, the license was a privilege to which the
Wallaces were not entitled until such time as the Department acted
on the application. The statutory review process and time period
had not been completed prior to the effective date of the amended
statute.
Nor does the parties' agreement that license approval under
5 87-4-409, MCA (1991), was "virtually automatic” alter the fact
that receipt of a game farm license was not certain until the
Department acted pursuant to the statute. In addition, we note
that an environmental assessment prepared during the Department's
review of one of the Wallaces' prior expansion applications
indicated that further expansion could detrimentally impact winter
game animal habitat and a migration corridor. Based on that
history and the Department's clear authority under § 87-4-409, MCA
(1991), to deny an application, issuance of a license cannot be
said to have been a certainty. We conclude, therefore, that the
Wallaces' mere submission of a completed application did not result
in a vested right to issuance of a license under § 87-4-409, MCA
(1991) .
6
The Wallaces cite no authority for their assertions that they
had a vested right to receive a license under the terms of 5 87-4
409, MCA (19911, or that Department review of their application
pursuant to § 87-4-409, MCA (1993), otherwise impaired their vested
rights and, indeed, our decision here is in accord with prior
decisions addressing retroactive application of statutes. in Saint
Vincent Hosu., Blue Cross/Blue Shield and Deaconess Medical Center
entered into an exclusive contract under the Preferred Provider Act
(Act). Saint Vincent Hospital subsequently sought to become a
party to that contract pursuant to an amendment to the Act. We
determined that applying the amended Act to the existing contract
would be an impermissible retroactive application of that law
because it would divest contractually negotiated rights to an
exclusive contract, as well as provide access to contractually
confidential information. Saint Vincent Hosp., 862 P.2d at 9.
Similarly, we determined in Citv of Harlem that application of a
new statute requiring the Highway Commission to gain a
municipality's consent before constructing a highway by-pass of
that municipality impaired the Highway Commission's vested rights
under various contracts. City of Harlem, 425 P.2d at 720.
Unlike the vested contractual rights at stake in Saint Vincent
HOSP. and Citv of Harlem, the present case involves the mere
submission of an application for a game farm license. The
Wallaces' only vested rights are in the game farm license and
expansion licenses received prior to the effective date of § 87-4-
409, MCA (1993). Those rights are not impacted in any way by the
7
1993 amendments or the license application at issue here.
B. Did the statutory amendments authorizing the
Department to require an environmental impact statement,
increasing the initial license fee, and expanding the
time frame for review create a new obligation, impose a
new duty, or attach a new disability with respect to past
transactions between the Department and the Wallaces?
Approximately 100 days after receiving the Wallaces'
application, the Department informed the Wallaces pursuant to 5 87-
4-409 (3), MCA, that an environmental impact statement was required
and requested a $25,000 deposit to initiate the study. Because of
the need for the environmental impact statement, the Department
also informed the Wallaces that 5 87-4-409(3), MCA (19931, provided
it with an additional 180 days to complete the evaluation of the
application. The Wallaces argue that the deposit to fund an
environmental impact statement, the expanded time period for
departmental review, and the license fee increase created new
obligations, duties, and disabilities which should not be applied
retroactively.
As set forth above, creation of a new obligation, imposition
of a new duty, or attachment of a new disability in respect to
transactions already passed renders a law impermissibly
retroactive. Saint Vincent HOSP., 862 P.2d at 9. A transaction is
defined as "an act or agreement, or several acts or agreements
having some connection with each other, in which more than one
person is concerned, and by which the legal relations of such
persons between themselves are altered." Black's Law Dictionary
1496 (6th ed. 1990).
8
The transaction involved in Saint Vincent Hosp. was a contract
which had been in effect for approximately one year before the
amendment of the Act. With respect to that contract, we determined
that application of the amended statute would obligate Blue Cross
to offer an exclusive agreement to a party with whom it did not
intend to contract and impose a disability on Blue Cross because
the contract permitted Deaconess to terminate the agreement if Blue
cross entered into a similar agreement with another medical
provider. Saint Vincent Hosp., 862 P.2d at 9. Thus, applying the
amended Act to the existing contract would attach both a new
obligation and a new disability to a past transaction and
constitute an impermissible retroactive application of the statute.
Here, the Wallaces are not a party to any transaction which
would be altered as a result of the Department subjecting their
expansion license application to 5 87-4-409, MCA (1993). While
applying 5 87-4-409, MCA (1993), to an existing game farm license
possessed by the Wallaces arguably would constitute an
impermissible imposition of new obligations and disabilities to a
transaction already passed, no such effort occurred here. The mere
submission of a license application, although an act by the
Wallaces, cannot be said to alter the legal relationship between
them and the Department. We conclude, therefore, that subjecting
the Wallaces' pending license application to 5 87-4-409, MCA
(1993), did not impose a new duty, obligation, or disability with
respect to a transaction already passed.
We conclude that the Department properly subjected the
9
Wallaces’ game farm application to the provisions of s 87-h-409,
MCA (1993). We hold, therefore, that the District Court properly
concluded that application of 5 87-4-409, MCA (1993), did not
impair the Wallaces' vested rights or create a new obligation,
duty, or disability with respect to a past transaction and, thus,
did not constitute an impermissible retroactive application of that
statute.
The Wallaces argue separately that the Department violated its
own internal policies by not issuing them a license within sixty
days of submission of a completed application. This argument is
without merit. The Department policy simply mirrored the sixty-day
review requirement contained in 5 87-4-409(3), MCA (1991),
explicitly stating that 'I [tl he department is required by statute to
either issue or deny a game farm license within 60 days of
receiving a completed application." Moreover, a memorandum relied
on by the Wallaces specified that the procedures outlined therein
governed the review process until "final action on pending game
farm legislation." Once the amended statute became effective and
applicable, administrative policies which implemented prior
statutory requirements must necessarily give way to the new
controlling law. We conclude that the Department did not violate
its internal policy by subjecting the Wallaces' application to the
provisions of § 87-4-409(3), MCA (1993).
The Wallaces also make a passing assertion that the District
Court failed to properly consider and make findings of fact
regarding certain evidence. A district court's findings of fact
10
must be supported by substantial evidence, which is the amount of
relevant evidence a reasonable mind might accept as adequate to
support a conclusion. Accounts Management Corp. v. Lyman Ranch
(1987), 230 Mont. 35, 40-41, 748 P.2d 919, 923. We decline to
address this argument since it is clear that, for the most part,
the facts and evidence asserted by the Wallaces in this regard are
irrelevant in that they relate to findings which may have been
appropriate had we concluded that the pre-amendment version of §
87-4-409, MCA, was applicable here.
Given our resolution of the issues above, it is clear that the
District Court did not err in denying the Wallaces' application for
a writ of mandamus. A writ of mandamus is appropriate where a
party seeks performance of a clear legal duty by the party against
whom the writ is issued. State ex rel. Neuhausen v. Nachtsheim
(1992), 253 Mont. 296, 299, 833 P.2d 201, 203. We review a
district court's grant or denial of a writ of mandamus for abuse of
discretion. Neuhausen, 833 P.2d at 203.
Here, the Department properly subjected the Wallaces'
expansion license application to the provisions of § 87-4-409, MCA
(1993), and, as a result, mandamus is not available. We hold,
therefore, that the District Court did not abuse its discretion in
denying the Wallaces' application for a writ of mandamus.
Affirmed.
11
we concur:
12
January 24, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Ward Swanser
MOULTON, BELLINGHAM, LONG0 & MATHER, P.C.
P. 0. Box 2559
Billings, MT 59103-2559
Robert N. Lane and Beate Galda
Department of Fish, Wildlife and Parks
P. 0. Box 200701
Helena, MT 59620-0701
ED SMITH
CLERK OF THE SUPREME COURT
STATE,OF MONTANA