Geil v. Missoula Irrigation District

No. 01-364

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 269

RAYMOND M. GEIL and HELEN E. GEIL-HOEG,

Petitioners and Respondents,

v.

MISSOULA IRRIGATION DISTRICT,

Respondent and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula,
Honorable John W. Larson, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

Richard D. Buley, Tipp & Buley, Missoula, Montana

For Respondent:

Helen Geil-Hoeg, pro se, Missoula, Montana (No appearance)

For Amici Curiae:

Honorable Mike McGrath, Attorney General; Candace F. West,
Assistant Attorney General, Helena, Montana

Jim Nugent, City Attorney; Susan A. Firth, Deputy City Attorney,
Missoula, Montan (Missoula Housing Authority)

Patrick G. Frank, Worden, Thane & Haines, Attorneys at Law,
Missoula, Montana (Clapp)

John R. Gordon, Reep, Spoon & Gordon, Missoula, Montana (RSG Holdings)

James A. Aiken, Jardine, Stephenson, Blewett & Weaver, Great Falls,
Montana (Aiken & Clayton)

Submitted on Briefs: March 21, 2002
Decided: November 26, 2002
Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 The Missoula Irrigation District (MID) appeals from the Fourth

Judicial District Court’s final order excluding Helen Geil-Hoeg’s

property from the MID. We affirm.

¶2 We re-state the issues on appeal as follows:

¶3 (1) Does the MID have standing to challenge the

constitutionality of §§ 85-7-1802(2) and 85-7-1846, MCA (1997)?

¶4 (2) Does Senate Bill 284, codified as § 85-7-1802(2), MCA

(1997), deny equal protection under the law?

¶5 (3) Do §§ 85-7-1802(2) and 85-7-1846, MCA (1997), deny due

process of the law?
¶6 (4) Does the doctrine of res judicata prohibit the exclusion

of land from the MID?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 This case involves hundreds of petitions alleging, basically,

“taxation without irrigation.” The petitioners claim that they

cannot feasibly obtain the irrigation water encompassed by the MID,

and, as such, they should not be required to pay a yearly tax for

irrigation services. Unable to access the irrigation waters to

dump their tea in protest, the petitioners have chosen instead to

take their cause first to the legislature, then to the courts.

¶8 It all began on October 14, 1922. On this date, the Fourth

Judicial District Court issued a Decree creating the MID. The MID

was a successor to the Miller-Kelly-Cave-Gannon Consolidated

Irrigation Ditch which was established by the District Court in

1905. In 1909, following establishment of the ditch company, the

legislature authorized establishment of irrigation districts.

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¶9 As set forth in the 1922 Decree, the District Court heard

testimony regarding the necessity and utility of the proposed

district as well as the character of the lands sought to be

included in the district. Satisfied that all of these lands were

susceptible to irrigation from the local river and that the

petitioners met all of the statutory requirements to establish an

irrigation district, the District Court charged the MID with the

operation, maintenance and complete administration of the

irrigation district. It also decreed that the water rights of the

landowners were not intended to be disturbed by the establishment

of the MID. Essentially, the MID was created so that the users of

the irrigation waters could equitably administer the water in the

ditches and establish a taxation system to pay for irrigation

expenses.
¶10 Until 1997, landowners throughout the state could petition for

exclusion from an irrigation district as set forth in § 85-7-1802,

MCA. This provision, originally enacted in 1909, provides that

whenever lands within an irrigation district cannot be successfully

irrigated by the irrigation system in place or proposed, or if the

cost of irrigating will become burdensome,

a majority in number of the holders of title or evidence
of title to the land included in such district (such
holders of title or evidence of title also representing a
majority in acreage of said lands) may petition the
district court of the county in which the lands of the
district or the greater portion thereof are situated for
an order or decree changing the boundaries of the
district by the elimination therefrom of such lands.

Section 85-7-1802, MCA (1995).

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¶11 In 1997, the Montana legislature passed Senate Bill 284 (the

Act). The Act allowed the exclusion of certain small tracts of

urbanized land from an irrigation district and, thus, future tax

assessments, if the land was not served by the irrigation district.

Section 3 of the Act temporarily amended § 85-7-1802, MCA,

described above, to provide less stringent exclusion requirements

for these tracts of land. The parties dispute whether the purpose

of the legislation was to assure that the Act would only apply to

the MID and no other irrigation districts in the state. The

parties agree, however, that the only exclusions granted pursuant

to the legislation were to petitioners with tracts of land within

the MID.
¶12 The amendment to § 85-7-1802, MCA, provided:

Whenever a tract of record is located within an
irrigation district that is partially within or adjacent
to a first-class city that had a population greater than
40,000 and less than 55,000 as shown by the 1990 census,
is 3 acres or smaller in size, is located within 5 miles
of the exterior boundary of an incorporated city, and is
not served by any district canal, system, facility, or
other undertaking, the owner of the tract may petition to
eliminate the tract from a district pursuant to 85-7-
1846. (Terminates December 31, 1998 – Sec. 5, Ch. 306,
L. 1997)

Section 85-7-1802(2), MCA (1997).

¶13 Pursuant to Section 1 of the Act, codified at § 85-7-1846, MCA

(1997), the exclusion requirements for petitioners who met these

geographical criteria were, until the sunset date of December 31,

1998, less stringent than the requirements for other petitioners in

the state who did not meet the criteria. These other petitioners

remained bound by § 85-7-1802(1), MCA (1997). Throughout the

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remainder of this opinion, and unless otherwise indicated, we will

refer to the 1997 version of §§ 85-7-1802 and 85-7-1846, MCA.

¶14 The less stringent exclusion requirements under § 85-7-1846,

MCA, provided:

Small-tract petition to exclude land from district. (1)
When an irrigation district has become urbanized to such
a degree that the average parcel size in the district is
less than 3 acres, a person holding title to a tract of
land meeting the criteria in 85-7-1802(2) may petition
the district court for an exclusion of the person’s tract
from an irrigation district, a subdistrict, or a
combination of a district and subdistrict. The petition
must be signed by all persons who hold title to the tract
to be excluded and must specify:
(a) the name of the irrigation district;
(b) the name and address of the persons holding
title to the tract;
(c) evidence of title to the tract to be excluded,
as provided in 85-7-101 and 85-7-102;
(d) a copy of a map or plat of the irrigation
district showing the location of the tract sought to be
excluded and the relation of that land to the works of
the district;
(e) a statement, corroborated by adequate
documentation, that the users of the tract do not and
cannot feasibly obtain water from the irrigation district
through existing irrigation works;
(f) a copy of a recent tax statement documenting
assessment of the tract by the irrigation district; and
(g) a request that the tract be excluded.
(2) Prior to filing the petition with the court, the
petitioner shall mail a copy of the completed petition to
the irrigation district subject to the petition.
(3) The petitioner shall file the petition, proof of
mailing pursuant to subsection (2), and a $20 fee with
the clerk of the district court for the court in which
the irrigation district was created.
(4) Within 15 days of the date of the filing of the
petition, the irrigation district may file an objection
to the petition. To be valid, the objection must provide
sufficient evidence that the conditions set forth in 85-
7-1802(2) do not apply to the tract petitioned for
exclusion.
(5) If a valid objection is filed, the court may
hold a hearing if necessary to resolve the facts of the
petition.
(6) The court shall grant the petition for
exclusion:

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 (a) if no objections are filed within 15 days of
filing the petition; or
(b) upon determination of the court that the
petition is sufficient.
(7) The court shall forward to the irrigation
district a copy of the order granting the exclusion.
(8) A petition granted in this section excludes the
petitioned tract from the irrigation district for all
purposes, except that it remains subject to assessment
for any existing district debt. (Terminates December 31,
1998 – Sec. 5, Ch. 306, L. 1997)

¶15 Over 500 petitions were filed pursuant to the new legislation

in all four departments of the Fourth Judicial District. The lead

Petitioner, Davis O. Clapp, filed a petition reflective of the

other petitions. He sought an exclusion of his land from the MID,

alleging that he owned real property located within the MID subject

to the Act’s provisions. He further alleged that due to the

property’s location he could not feasibly obtain water from

existing irrigation district works but, nevertheless, the MID

assessed taxes on his property. The District Court consolidated

all of the petitions for purposes of determining the issues of law

as well as developing a procedure to deal with the disposition of

all of the petitions.
¶16 The MID objected to Clapp’s petition for exclusion and moved

for summary judgment. The MID argued that the statutory scheme at

issue was unconstitutional since it denied equal protection of the

laws as well as procedural due process. It also claimed that the

factual determinations at issue were barred by the doctrine of res

judicata. Clapp and several amici curiae, including the Missoula

Housing Authority, Missoula County, and RSG Holdings, opposed the

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MID’s motion. The State Attorney General declined to participate

in the proceedings at this juncture.

¶17 The District Court appointed Walter E. Congdon (Congdon) as a

Special Master for the purpose of addressing Clapp’s petition and

the MID’s objections. The District Court also ordered Congdon to

conduct further proceedings deemed necessary to prepare a final

report, including hearings and requests for additional briefings or

argument.

¶18 Congdon filed Recommended Findings of Fact and Proposed

Conclusions of Law. The MID filed objections to the Proposed

Conclusions of Law only. After further briefing by the parties and

amici, the District Court conducted a hearing on the objections and

on the motion for summary judgment.
¶19 On February 23, 2000, the District Court denied the MID’s

motion for summary judgment and its objections to Congdon’s

recommendations, and the court issued an order for further

proceedings to determine the fact issues contained in the hundreds

of petitions filed.

¶20 Eight months later, the District Court issued a Notice of

Intent to enter a final order exempting property from the MID with

respect to the petition filed by Helen E. Geil-Hoeg (Hoeg). The

MID objected to the notice, and the court held two hearings

regarding the sufficiency of Hoeg’s petition. At the earlier

hearing, the court stated that all issues raised in the Clapp case

would be considered raised in the Hoeg case for purposes of appeal.

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 Ultimately, the District Court ordered the Hoeg property excluded

from the MID. The MID appeals.

¶21 Hoeg, who is unrepresented, failed to file a response brief on

appeal. In light of the constitutional issues the MID raises for

our consideration, we issued an Order on January 8, 2002, inviting

the Attorney General (AG) to participate in this appeal, and it

accepted. In addition, we permitted amicus curiae participation on

behalf of Clapp, RSG Holdings, petitioner and attorney James E.

Aiken, and the City of Missoula.
STANDARD OF REVIEW

¶22 The issues presented in this appeal are purely legal in

nature. In reviewing a district court’s conclusions of law, our

standard of review is plenary and we must determine whether the

court’s conclusions are correct as a matter of law. Williams v.

Schwager, 2002 MT 107, ¶ 22, 309 Mont. 455, ¶ 22, 47 P.3d 839, ¶ 22

(citations omitted).

¶23 All legislative enactments are presumed constitutional. The

party challenging the constitutionality of a statute bears the

burden of proving the statute unconstitutional beyond a reasonable

doubt. Henry v. State Compensation Ins. Fund, 1999 MT 126, ¶ 11,

294 Mont. 449, ¶ 11, 982 P.2d 456, ¶ 11.

DISCUSSION

¶24 (1) Does the MID have standing to challenge the

constitutionality of §§ 85-7-1802(2) and 85-7-1846, MCA (1997)?

¶25 The AG and the City of Missoula contend that the MID lacks

standing to challenge the constitutionality of §§ 85-7-1802(2) and

8
85-7-1846, MCA, because its taxing authority is not a protectable

property interest and neither the MID members nor the MID itself

will suffer harm from the legislation. They contend that there is

no harm in requiring the MID members using the irrigation district

to assume their fair share of the costs of running the district.

They insist that the MID has not shown that harm will result from

excluding certain property under the 1997 legislation.

¶26 The MID maintains that it has standing to challenge statutes

under which it has been sued over 500 times. In support of its

argument, the MID notes that § 85-7-1846, MCA, specifically

provides that a petitioner must mail an exclusion petition to the

irrigation district and that the irrigation district may file an

objection to the petition. Under these circumstances, the MID

argues, it is the only party capable of challenging the statutes.

Moreover, the MID claims that it demonstrated a threatened injury

to property since the MID irrigation users, who counted on a

certain amount of landowner participation in the district, will be

forced to shoulder the higher cost of operating the MID if the

numerous petitions for exclusion are granted.
¶27 The question of standing raises an issue as to whether a

litigant is entitled to have the court decide the merits of a

dispute or particular issues. Gryczan v. State (1997), 283 Mont.

433, 442, 942 P.2d 112, 118. In deciding whether a litigant has

standing, we must determine whether the litigant whose standing is

challenged is a proper party to request an adjudication of a

9
particular issue and not whether the issue itself is justiciable.

Gryczan, 283 Mont. at 442, 942 P.2d at 118.

¶28 The following criteria must be satisfied to establish

standing: (1) the complaining party must clearly allege past,

present or threatened injury to a property or civil right; and (2)

the alleged injury must be distinguishable from the injury to the

public generally, but the injury need not be exclusive to the

complaining party. Gryczan, 283 Mont. at 442-43, 942 P.2d at 118.

Potential economic injury is sufficient to establish standing.

Missoula City-County Air Pollution Control Board v. Board of

Environmental Review (1997), 282 Mont. 255, 262, 937 P.2d 463, 468

(citation omitted).
¶29 Section 85-7-1846(4), MCA, provides that an irrigation

district may file an objection to an exclusion petition and that,

to be valid, the objection must provide sufficient evidence that

the geographical conditions set forth in § 85-7-1802(2), MCA, are

not applicable to the tract petitioned for exclusion. Pursuant to

the statute, the irrigation district is the only entity with

standing to challenge a petition for exclusion.

¶30 Furthermore, the MID, as the representative of the MID members

under § 85-7-1846, MCA, has demonstrated potential economic injury

to its members sufficient to establish standing in this case. If

all of the petitioners seeking exclusion under the statute are

successful, those landowners remaining in the MID will face

increased tax assessments. This remains true under the amici’s

“fair share” analysis. Whether the tax increase is labeled as the

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members’ “fair share” or not, the fact remains that the MID members

face the potential for adverse economic fallout resulting from the

enforcement of legislative enactments which, arguably, violate

their due process and equal protection rights. This is sufficient

to give the MID standing to challenge the constitutionality of the

provisions at issue. Moreover, since irrigation districts are

precisely the entities against whom the statute is intended to

operate, to deny the MID standing would effectively immunize the

statutes from constitutional review. See Gryczan, 283 Mont. at

446, 942 P.2d at 120.
¶31 With regard to the second prong of the standing test, the MID

has alleged a distinguishable injury. The statutes at issue affect

only those included in specified irrigation districts rather than

the general public.

¶32 We hold that the MID has standing to challenge the

constitutionality of §§ 85-7-1802(2) and 85-7-1846, MCA.

¶33 (2) Does Senate Bill 284, codified as § 85-7-1802(2), MCA,

deny equal protection under the law?

¶34 Article II, Section 4, of the Montana Constitution provides

that “[n]o person shall be denied the equal protection of the

laws.” The MID argues that Senate Bill 284, codified as § 85-7-

1802(2), MCA, was narrowly drafted to apply only to the City of

Missoula. As such, the MID argues that it and its members are

subject to a law which does not apply to other similarly situated

urbanized irrigation districts and their members. The MID contends

that, as a result, it and its members are effectively denied the

11
protections and benefits of the more restrictive exclusion

requirements found in the pre-1997 legislation in violation of

their constitutional rights to equal protection and procedural due

process.

¶35 When addressing an equal protection challenge, this Court

first identifies the classes involved and determines whether they

are similarly situated. Henry, ¶ 27. Here, the District Court

stated that, at various times, the MID seemed to challenge two sets

of classifications purportedly created by the Act: (1) the MID and

all other irrigation districts in the State; and (2) the MID

members who use or can use the irrigation works and members of all

other irrigation districts who use or can use their irrigation

works.
¶36 Even a cursory glance at the legislative history indicates

that the legislature intended for the relaxed land exclusion

process set forth in the Act to apply only to the City of Missoula.

Therefore, we conclude that the District Court correctly

identified the classes involved. We further conclude that the

classes are similarly situated for equal protection purposes.

¶37 At this point, our equal protection analysis necessarily

shifts to a determination of whether or not this classification

violated the MID’s and its members’ equal protection rights. In

making this determination, we first address the appropriate level

of scrutiny to apply to the challenged legislation. Here, the MID

concedes that the rational basis test applies. The rational basis

test requires the government to show that (1) the statute’s

12
objective was legitimate, and (2) the statute’s objective bears a

rational relationship to the classification used by the

legislature. In other words, the statute must bear a rational

relationship to a legitimate government interest. Henry, ¶ 33.

¶38 Here, the 1997 legislature approved and passed Senate Bill 284

which was entitled:

AN ACT ALLOWING INDIVIDUAL OWNERS OF TRACTS OF LAND 3
ACRES OR SMALLER IN SIZE LOCATED WITHIN THE BOUNDARIES OF
CERTAIN URBANIZED IRRIGATION DISTRICTS THAT ARE NOT BEING
SERVED BY THE IRRIGATION DISTRICT WORKS TO BE ELIMINATED
FROM ASSESSMENTS OVER AND ABOVE CURRENT INDEBTEDNESS;
AMENDING SECTIONS 85-7-411 AND 85-7-1802 MCA; AND
PROVIDING AN EFFECTIVE DATE AND A TERMINATION DATE.
¶39 The District Court stated that the legislative purpose

underlying the Act was to ensure that only those persons who used

the irrigation works should pay for them. The District Court

recognized that a fundamental principle of irrigation law is that

those not benefitted by irrigation district works may not be

included against their will. The District Court concluded that the

legislature’s attempt to amend irrigation district law to uphold

this principle could not be seen as an unsound or invalid

governmental purpose.

¶40 The MID claims that the while the declared purpose of the

legislation was to allow persons within an urbanized irrigation

district who are not using the water relief from assessments, the

true purpose of the legislation was for the State to step in and

resolve a local dispute between local parties in Missoula. The MID

maintains that this true purpose is not legitimate.

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¶41 Amici AG, City of Missoula, and Clapp emphasize that under the

applicable test, a statute which has any rational basis must be

upheld. The amici argue that § 85-7-1802(2), MCA, satisfies the

rational basis test since it legitimately allows individuals who

are not benefitted by irrigation waters in the MID to petition for

exclusion from the district. In particular, amicus Clapp argues

that the rational basis inquiry must be based on the legislature’s

declared purpose, and he faults the MID for engaging in “valueless

conjecture” regarding the “hypothetical” goal of the legislature in

this matter.
¶42 We hold that the District Court correctly concluded that the

legislative objective in this case was legitimate. Whether the

legislation applied to the entire state or only to Missoula, the

declared objective remained the same: to offer persons who are not

served by the irrigation district works relief from assessments.

We hold that this is indeed a legitimate governmental objective.

¶43 Next, we analyze whether this objective bears a rational

relationship to the classification used by the legislature. We

have stated:

A classification that is patently arbitrary and bears no
rational relationship to a legitimate governmental
interest offends equal protection of the laws. As we
have previously held, equal protection of the laws
requires that all persons be treated alike under like
circumstances.

Henry, ¶ 36 (quoting Davis v. Union Pacific R. Co. (1997), 282

Mont. 233, 242-43, 937 P.2d 27, 32).

¶44 In this case, the issue is whether the creation of a relaxed

land exclusion procedure for the City of Missoula bears a rational

14
relationship to the legitimate governmental objective of providing

relief from irrigation assessments to those persons who cannot use

the irrigation works.

¶45 The District Court concluded that the legislature’s

classification was rationally related to its objective. The court

outlined the information presented to the legislature regarding the

MID and the fact that out of 2,748 acres of land in the MID, only

approximately 900 acres utilized irrigation. It noted that no

other irrigation district informed the legislature of a similar

situation and that the MID, unlike other districts, refused to

cooperate with members seeking exclusion. Under these

circumstances, the court reasoned that “[f]or the legislature to

develop a remedy for a problem in one irrigation district when that

same problem does not at this time appear in other irrigation

districts is an example of a valid legislative choice, not a denial

of equal protection.”
¶46 The MID disagrees and argues that the legislation’s objective

bears no rational relationship to the classification used by the

legislature. The MID contends that if the purpose of the

legislation truly was to eliminate taxation without irrigation, a

city’s population and a land parcel’s size and location bear no

rational relationship to this supposed legitimate government

interest. Moreover, the MID claims that there would be no need for

a sunset provision if the legislature intended to truly combat

taxation without irrigation.

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¶47 Amicus Clapp argues that the legislature was only informed of

the problem existing in the Missoula area, and, as a result, its

narrow classification was simply “a valid legislative choice in an

attempt to deal with a problem one step at a time.” Along the same

lines, amicus City of Missoula contends that the intensity of

urbanization in Missoula as well as the lack of cooperation between

the MID and its members sufficiently distinguished the MID from

other irrigation districts for purposes of drafting the legislation

at issue.
¶48 We conclude that the District Court correctly held that the

legislature’s classification was rationally related to its

objective. The District Court’s conclusions, as set forth above,

are sound and supported in the record and legislative history, and

we need not embellish upon them except to emphasize that the

legislature is free to deal with one class at a time in resolving

public welfare issues. We have stated that:

the legislative authority, acting within its proper
field, is not bound to extend its regulation to all cases
which it might possibly reach. The legislature “is free
to recognize degrees of harm and it may confine its
restrictions to those classes of cases where the need is
deemed to be clearest.” If “the law presumably hits the
evil where it is most felt, it is not to be overthrown
because there are other instances to which it might have
been applied. There is no ‘doctrinaire requirement’
that the legislation should be couched in all embracing
terms.”

Stratemeyer v. Lincoln County (1993), 259 Mont. 147, 154, 855 P.2d

506, 511 (quoting West Coast Hotel Co. v. Parrish (1937), 300 U.S.

379, 400, 57 S.Ct. 578, 585-86, 81 L.Ed. 703, 713 (citations

omitted)). See also Dandridge v. Williams (1970), 397 U.S. 471,

16
486-87, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491, 503 (“the Equal

Protection Clause does not require that a State must choose between

attacking every aspect of a problem or not attacking the problem at

all”).

¶49 Here, it was not unreasonable for the legislature to address

the problem of rapid urbanization as it affected irrigation

districts. Nor was it patently arbitrary for the legislature to

address this problem by tailoring legislation to the unique

circumstances presented by the City of Missoula. The legislature

simply “hit the evil” where it was most felt, on the basis of the

evidence before it, and we will not overthrow the legislation

because there are other instances in which it might have been

applied. This is especially the case since no other irrigation

districts or their members informed the legislature that they faced

circumstances as severe as those faced by the members of the MID.
¶50 The MID has presented no persuasive argument or authority

supporting its contention that Senate Bill 284 and § 85-7-1802(2),

MCA, are not rationally related to a legitimate government

objective. Therefore, it has not met its burden of establishing

that the legislation is unconstitutional beyond a reasonable doubt.

We conclude that Senate Bill 284, codified as § 85-7-1802(2), MCA,

does not violate the MID’s right to equal protection under the law.

¶51 (3) Do §§ 85-7-1802(2) and 85-7-1846, MCA, deny due process of

the law?

¶52 The MID contends that §§ 85-7-1802(2) and 85-7-1846, MCA,

deprived its members of a property interest without due process of

17
the law. Specifically, it argues that the notice and hearing

requirements provided for in these provisions are

unconstitutionally deficient.

¶53 Article II, Section 17 of the Montana Constitution provides

that “[n]o person shall be deprived of life, liberty, or property

without due process of law.” We have previously stated that “due

process generally requires notice of a proposed action which could

result in depriving a person of a property interest and the

opportunity to be heard regarding that action.” Pickens v.

Shelton-Thompson, 2000 MT 131, ¶13, 300 Mont. 16, ¶ 13, 3 P.3d 603,

¶13 (quoting Dorwart v. Caraway, 1998 MT 191, ¶ 76, 290 Mont. 196,

¶ 76, 966 P.2d 1121, ¶ 76).
¶54 The MID argues that the protectable property interests at

stake include the increased assessments that remaining members must

pay if some members are allowed to exclude their land from the

district. It claims that the members are unjustly deprived of

their property interests without adequate notice because the Act

only requires that the exclusion petition be mailed to an

irrigation district before it is filed. The MID argues that the

mere fact that a copy of the petition has been mailed does not

provide any assurance that it would receive the petition. Also,

citing Scilley v. Red Lodge-Rosebud Irr. Dist. (1928), 83 Mont.

282, 272 P. 543, the MID contends that the Act’s notice provision

fails to reach those parties who are directly affected by the

exclusion of members since the Act does not require mailing the

exclusion petition to every landowner in the district. In

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addition, the MID insists that since the petition must be mailed

before it is filed, the MID would have no idea when the petition

was filed for purposes of filing an objection within 15 days.

¶55 The MID also claims that the Act deprives members of their

property interests without an adequate opportunity to be heard.

The MID takes issue with the following language of § 85-7-1846(4),

MCA:

To be valid, the objection must provide sufficient
evidence that the conditions set forth in 85-7-1802(2) do
not apply to the tract petitioned for exclusion.
¶56 The MID argues that this language deprived it of the

opportunity to show that the users of a tract can feasibly obtain

water from the irrigation district through existing irrigation

works as described in § 85-7-1846(1)(e), MCA. The MID also

complains that the holding of a hearing is discretionary with the

court and that an exclusion petition may be granted if it is

“facially sufficient, rather than upon the determination that the

facts alleged in the Petition are true.”

¶57 The District Court held that §§ 85-7-1802(2) and 85-7-1846,

MCA, satisfied due process and were constitutionally valid.

Assuming the MID had a protectable property interest at stake, the

District Court concluded that the notice provisions were reasonably

designed to ensure adequate notice, as evidenced by the MID’s

timely response to over 500 petitions. Furthermore, the court

concluded that the Act provided an adequate opportunity for a

hearing since a court can hold a hearing if a question of fact

exists as to whether or not a petitioner is in fact “not served by

19
any district canal, system, facility, or other undertaking,” within

the meaning of § 85-7-1802(2), MCA.

¶58 We agree. Property owners must be notified of the assessment

of their property. Great Northern Railway Co. v. Roosevelt Co.

(1958), 134 Mont. 355, 361, 332 P.2d 501, 504. Notice sufficiently

comports with due process if it is reasonably calculated, under all

circumstances, to inform parties of proceedings which may directly

affect their legally protected interests. Pickens, ¶ 15 (citation

omitted). Notice must reasonably convey the required information

by means which actually inform. Pickens, ¶ 15 (citation omitted).

In applying these guidelines to determine whether a party received

adequate notice, we have recognized that there is no absolute

standard for what constitutes due process. McDermott v. McDonald,

2001 MT 89, ¶ 10, 305 Mont. 166, ¶ 10, 24 P.3d 200, ¶ 10. Rather,

due process requirements are flexible and may be adapted to meet

the procedural protections demanded by a specific situation.

McDermott, ¶ 10. Accordingly, “the process due in any given case

varies according to the factual circumstances of the case, the

nature of the interests at stake, and the risk of making an

erroneous decision.” McDermott, ¶ 10 (citing Sage v. Gamble

(1996), 279 Mont. 459, 464-65, 929 P.2d 822, 825).
¶59 Here, § 85-7-1846, MCA, satisfies the notice requirements of

due process. Section 85-7-1846(2), MCA, provides that prior to

filing the petition with the court, a petitioner must mail a copy

of the completed petition to the irrigation district subject to the

petition. Then, under subsection (3), the petitioner must file

20
proof of mailing when he or she files a petition. Not only does

this constitute adequate notice, it exceeds the notice requirements

of the pre-1997 legislation we considered in Scilley which permits

notice by publication to resident landowners. See § 85-7-1805,

MCA; Scilley, 83 Mont. at 286-87, 272 P. at 546.

¶60 As amicus RSG points out, the MID, in arguing that the

petitioner should mail a copy of the petition to each of the

thousands of landowners in the district, attempts to have its cake

and eat it too. While the MID, for purposes of its equal

protection and standing arguments, claimed that, as a corporation,

it represents the interests of its members, it now insists that it

cannot be expected to adequately represent its members’ interests

for due process purposes. Considering the MID’s active

participation in the proceedings to date, this argument is

disingenuous at best.
¶61 We also conclude that § 85-7-1846, MCA, satisfies the hearing

requirements of due process. The fundamental requirement of due

process is the opportunity to be heard “at a meaningful time and in

a meaningful manner.” Smith v. Board of Horse Racing, 1998 MT 91,

¶ 11, 288 Mont. 249, ¶ 11, 956 P.2d 752, ¶ 11 (citing Connell v.

State, Dept. of Social and Rehabilitation Services (1997), 280

Mont. 491, 496, 930 P.2d 88, 91; Small v. McRae (1982), 200 Mont.

497, 506, 651 P.2d 982, 987 (citation omitted)).

¶62 Here, under § 85-7-1846(4), MCA, an irrigation district may

file an objection to a petition within 15 days of the date of the

filing of the petition. To be valid, the objection must provide

21
sufficient evidence that the conditions set forth in § 85-7-

1802(2), MCA, do not apply to the tract petitioned for exclusion.

Section 85-7-1846(4), MCA. In other words, the objection must show

that the tract involved is not partially within or adjacent to a

first-class city that had a population greater than 40,000 and less

than 55,000 as shown by the 1990 census; is not 3 acres or smaller

in size; is not located within 5 miles of the exterior boundary of

an incorporated city; and/or the tract is served by any district

canal, system, facility, or other undertaking. See § 85-7-1802(2),

MCA. Consequently, the MID’s contention that the statute deprives

it of an opportunity to demonstrate that the users of a tract can

feasibly obtain water from the irrigation district through existing

irrigation works is meritless. Indeed, the District Court held two

hearings regarding the MID’s objections to Hoeg’s petition for

exclusion regarding this very issue.
¶63 Moreover, pursuant to § 85-7-1846(5), MCA, a district court

may hold a hearing if necessary to resolve the facts of the

petition. A court may only grant a petition for exclusion if no

objections are filed or if it finds that the petition is

sufficient. Section 85-7-1846(6), MCA. Contrary to the MID’s

contentions, the statute does not permit a district court to refuse

to hold a hearing or summarily grant a petition if it is facially

sufficient but factually unsupported. Rather, § 85-7-1846, MCA,

provides an opportunity to be heard at a meaningful time and in a

meaningful manner.

22
¶64 The MID has presented no persuasive argument or authority

supporting its contention that §§ 85-7-1802(2) and 85-7-1846, MCA,

deny due process of law. Consequently, it has not met its burden

of establishing that the legislation is unconstitutional beyond a

reasonable doubt. We hold that §§ 85-7-1802(2) and 85-7-1846, MCA,

afford irrigation districts and their members due process of law.

¶65 (4) Does the doctrine of res judicata prohibit the exclusion

of land from the MID?

¶66 The MID asserts that application of the Act violates the

principles of res judicata with respect to the original 1922 court

decree establishing the MID. Citing O’Neill v. Yellowstone Irr.

Dist. (1912), 44 Mont. 492, 121 P. 283, the MID contends that, upon

its establishment in 1922, the court conclusively found that all of

the land within the district is susceptible to irrigation and is

served by the MID’s irrigation facilities. The MID claims that a

party cannot come back several years after a judgment and re-

litigate the same issues simply because “times have changed.” It

contends that the fact that landowners today may not have access to

the MID’s irrigation ditches does not change the factual

determinations made in 1922.
¶67 The District Court rejected this argument. It stated that

because the subject matter and factual issues before it differed

from those before the district court in 1922, the doctrine of res

judicata did not bar the exclusion of land under the Act. The

court reasoned that if the MID prevailed in its res judicata

argument, no member of an irrigation district would be able to

23
withdraw from the district after entry of the decree and expiration

of the period of appeal. It stated that this was not the

legislature’s intent since it has, since 1909, enacted provisions

allowing for the exclusion of land from irrigation districts. The

court also stated that, unlike in O’Neill, the petitioners here are

not arguing that their land was not served by the irrigation works

when the district was established. Rather, the petitioners in this

case maintain that their land is not now served.

¶68 The doctrine of res judicata acts as a bar to litigation if

the following four elements are met: (1) the subject matter of each

action must be the same; (2) the parties or their privies of each

action must be the same; (3) the issues must be the same and relate

to the same subject matter; and (4) the capacities of the persons

must be the same in reference to the subject matter and to the

issues between them. State ex rel. Harlem Irr. Dist. v. Montana

Seventeenth Jud. Dist. Ct. (1995), 271 Mont. 129, 132, 894 P.2d

943, 945 (citations omitted).
¶69 Here, the subject matter and the issues of the action in 1922

and the instant action are not the same. In 1922, the subject

matter involved establishing the MID. Unlike in O’Neill, the

establishment of the MID is not at issue today. Rather, the

subject matter of today’s dispute involves whether or not certain

tracts of land may be excluded from the irrigation district since,

due to urbanization within the MID, the MID’s irrigation works only

serve some MID members. As the District Court stated, such

petitions for exclusion from established irrigation districts have

24
been permissible since 1909. See 1909 Mont. Laws Ch. 146, Sec. 23.

In other words, parties have been able to argue that “times have

changed” and their land is no longer benefitted by irrigation

district waters for nearly a century.

¶70 The MID has failed to show that the four res judicata elements

are met in this case. Accordingly, we hold that the doctrine of

res judicata does not prohibit the exclusion of land from the MID.

¶71 We affirm.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JIM RICE

25
Justice Terry N. Trieweiler dissenting.

¶72 I concur with the majority's conclusion that the Missoula

Irrigation District has standing to challenge the constitutionality

of § 85-7-1802(2), MCA (1997), and § 85-7-1846, MCA (1997)

(terminated Dec. 31, 1998, Section 5, Ch. 306, L. 1997).

¶73 I dissent from the majority's conclusion that the statutes in

question did not violate the constitutional right to equal

protection of the law and although it was not an issue raised by

the parties, I would point out for future reference that the

statutory classification also violates the prohibition at Article

V, Section 12 of the Montana Constitution against "special"

legislation.
¶74 Sections 85-7-1802(2) and 85-7-1846, MCA, treat the Missoula

Irrigation District (an urban area) differently than other

urbanized irrigation districts in the state of Montana. It allows

landowners to be excluded from payment of future assessments in the

district based on statutory criteria which are simpler than those

that apply to any other irrigation district in the state. The

ultimate result is to erode the financial stability of the Missoula

District while at the same time assuring that other districts are

not similarly affected.

¶75 The Missoula Irrigation District is a corporation. We have

previously held that corporations are entitled to the same equal

protection of the law as individuals. See Montana Power Co. v.

Public Service Commission (1983), 206 Mont. 359, 364, 671 P.2d 604,

607.

26
¶76 I agree that whether or not the statutes at issue in this case

are constitutional depends on whether there was a rational basis

for their enactment. I also agree that whether there was a

rational basis is properly analyzed pursuant to the two-part test

set forth in Henry v. State Compensation Ins. Fund, 1999 MT 126, ¶

33, 294 Mont. 448, ¶ 33, 982 P.2d 456, ¶ 33. Finally, I agree with

the majority's conclusion that there was a legitimate state

objective for the statute in question. That objective, based on

the title of the act itself, was to allow "Individual owners . . .

that are not being served by the irrigation district works to be

eliminated from assessments over and above the current

indebtedness; . . . ." However, I disagree with the majority's

conclusion that the statute as enacted and the classifications that

it creates bear a rational relationship to the purported objective

of the legislation.
¶77 If the legitimate objective of the legislation was to actually

make it easier for property owners in urbanized irrigation

districts who are not being served by irrigation to avoid the

expense of providing irrigation to others and withdraw from the

district, then it makes no sense to limit the beneficial purpose of

this statute to only those who reside in the Missoula Irrigation

District and are fortunate enough to have the bill's sponsor as one

of their fellow residents within the district. It is clear that

that is what was done. There is only one irrigation district

within the state of Montana to which this statute applies and the

27
statute's sponsor and his fellow legislators made clear that was

their intent.

¶78 When introducing the bill, Senator Michael Halligan, from

Missoula, stated:

This bill is an attempt, in a very clean way, to allow
people to be excluded from a district only for those
parcels that are small. If there is a way to fine- tune
this bill to make sure it applies more to the Missoula
situation and doesn't affect anybody else, we will
certainly try to do that.

Section 4, Ch. 306, L. 1987 (SB 284 Senate Ag. Committee Hearing
(Feb. 12, 1997)).
¶79 During discussion of Senator Halligan's bill in executive

session of the senate committee to which it was introduced, the

following comments were made:

Sen. Jergeson: It looks like he's tightened this bill
down so it will only apply to one irrigation district in
the state without mentioning any particular city by name.

. . . .

Sen. Devlin: I hope this doesn't affect anyplace else.
We've got the population in here, but I would sure hate
to see it affect Butte Silverbow.

Doug Sternberg: My indication from Senator Halligan, in
putting these amendments together, was avoiding some kind
of specialized intent in this Legislation, but drawing it
narrow enough to address the Missoula situation. I think
the population insert is going to be the closest
[figure]. According to the information given to me by
the Missoula Deputy County Attorney, Missoula County is
the only one that will fit in this particular formula at
this time.

Section 4, Ch. 306, L. 1997 (SB 284 Senate Ag. Committee Exec.
Action (Feb. 12, 1997)).

¶80 There was even concern that while the statute was narrowly

enough drawn to affect only Missoula, it could become applicable to

other irrigation districts in the future simply by growth of the

28
communities near which they are located. The Helena Valley,

Billings, Great Falls and the area around Flathead County were all

mentioned. The solution to that problem was to sunset the bill

before those communities grew to meet the criteria set forth in the

statute. For example:

Sen. Beck: There is a lot of concern about this affecting
things down the road. What if we submitted this for two
years? It will serve its purpose and put a hammer on
those people. I don't think this is a problem in all
districts.

Sen. Devlin: I could support that. We could take a look
at this in two years and if it's not working by then,
take the sunset off and let it go.
Sen. Beck: That would make us all feel a little better.

Doug Sternberg: It's drawn. Senator Halligan was
thinking of that.

Section 4, Ch. 306, L. 1997 (SB 284 Senate Ag. Committee Exec.
Action (Feb. 17, 1997)).

¶81 For that reason, the statute was sunsetted to terminate on

December 31, 1998, eliminating any possibility that it might affect

any other irrigation district in the state.

¶82 The majority correctly states the law but then ignores it. As

noted in ¶ 43 of the majority Opinion, we have stated:

A classification that is patently arbitrary and bears no
rational relationship to a legitimate governmental
interest offends equal protection of the laws. As we
have previously held, equal protection of the laws
requires that all persons be treated alike under like
circumstances.

Henry, ¶ 36 (quoting Davis v. Union Pacific R. Co. (1997), 282

Mont. 233, 242-43, 937 P.2d 27, 32).

¶83 Sections 85-7-1802(2) and 85-7-1846, MCA, do not treat all

persons alike under like circumstances. Property owners in an

29
urbanized irrigation district in Missoula are allowed to freely

remove themselves from taxation by that district simply by showing

they do not benefit from the irrigation whereas similarly situated

property owners in other urbanized irrigation districts around the

state are denied the same option. Not only has the Missoula

Irrigation District been singled out for unfavorable treatment, the

property owners in the Missoula Irrigation District have been

singled out for favorable treatment. The sole reason is that a

legislator whose property was apparently not benefitted by

irrigation happened to own property within the Missoula Irrigation

District. However, that is not a rational basis for the class

distinctions that have been drawn.
¶84 The majority rationalizes its conclusion by stating that it

was not arbitrary for the Legislature "to address this problem by

tailoring legislation to the unique circumstances presented by the

City of Missoula." However, the City of Missoula's circumstances

were not unique and Halligan's colleagues acknowledged as much when

Senator Jergeson stated:

It looks like he's [Halligan] tightened this bill so that
it will only apply to one irrigation district in the
state without mentioning any particular city by name.
Apparently some of the other irrigation districts are
feeling the same urban pressure.

Section 4, Ch. 306, L. 1997 (SB 284 Senate Ag. Committee Exec.
Action (Feb. 17, 1997)).

¶85 The only thing unique about the City of Missoula was that the

irrigation district included a property owner who happened to be a

state senator.

30
¶86 Because of the broad language in the majority Opinion which

appears to approve this type of special interest legislation, it

should also be mentioned in passing (although MID did not raise the

issue on appeal) that the legislation in question violates Article

V, Section 12 of the Montana Constitution which provides as

follows:

The legislature shall not pass a special or local act
when a general act is, or can be made, applicable.

¶87 It is obvious from any fair reading of the legislative history

of the statute that the Legislature went to great lengths to make

the effects unique to Missoula when in fact the problem the

legislation sought to remedy was not unique to Missoula. A general

act which would have made it easier for all land owners in urban

irrigation districts who do not benefit from irrigation to be

excluded from the irrigation district would have more honestly

accomplished the stated purpose of the legislation. It was not

necessary to the stated purpose of the legislation to make the act

local.
¶88 We defined a special statute within the meaning of the

corresponding section of our previous constitution in State ex rel

Redman v. Meyers (1922), 65 Mont. 124, 127, 210 P. 1064, 1065-66,

where we stated:

A special statute is one which relates to a particular
person or things of a class [citation omitted] or one
made for individual cases and for less than a class.
[Citation omitted.] Or one which relates and applies to
particular members of a class, either particularized by
the express terms of the Act or separated by any method
of selection from the whole class to which the law might,
but for such limitation, be applicable. [Citation
omitted.] The test of a special law is the

31
 appropriateness of its provisions and the objects that it
excludes. It is not, therefore, what a law includes, but
what it excludes that determines whether it is special.
[Citation omitted.]

¶89 We went on to state:

A fair test for determining whether a statute is special
is this: does it operate equally upon all of a group of
objects which, having regard to the purpose of the
legislature, are distinguished by characteristics
sufficiently marked and important to make them a class by
themselves?

State ex rel Redman v. Meyers, 65 Mont. at 128, 210 P. at 1066.
(Citation omitted.)
¶90 Providing expeditious relief for property owners in the

Missoula Irrigation District who are not benefitted by irrigation

while denying it to the property owners of every other urbanized

irrigation district in the state who are similarly not benefitted

by irrigation and conversely undermining the financial integrity of

the Missoula Irrigation District while at the same time protecting

other urbanized irrigation districts from the same danger does not

treat all similarly situated groups the same given the purpose of

the legislation. Therefore, for future reference, it should be

noted that this special interest legislation also clearly violates

Article V, Section 12 of the Montana Constitution.

¶91 For these reasons, I dissent from the majority Opinion.

Having concluded that the statutes in question are unconstitutional

because in violation of the equal protection clause found at

Article II, Section 4 of the Montana Constitution, I would not

address the remaining issues related to due process and res

judicata.

32
/S/ TERRY N. TRIEWEILER

33