July 15 2008
DA 07-0617
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 249
BITTERROOTERS FOR PLANNING, PHILLIP TAYLOR,
Plaintiffs and Appellants,
v.
THE BOARD OF COUNTY COMMISSIONERS OF
RAVALLI COUNTY, a body politic and political subdivision
of the State of Montana,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DV-2007-285
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Sarah K. McMillan, Western Environmental Law Center,
Missoula, Montana
For Appellee:
Alan F. McCormick, Garlington, Lohn & Robinson, Missoula, Montana
Submitted on Briefs: June 4, 2008
Decided: July 15, 2008
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 After the Ravalli County Board of Commissioners (Board) approved an agreement
resolving federal court litigation between it and numerous subdivision developers
(Agreement), the Bitterrooters for Planning and Phillip Taylor (collectively
“Bitterrooters”) filed suit in the Twenty-First Judicial District Court seeking an injunction
enjoining implementation of the Agreement. The District Court denied the Bitterrooters’
request for injunction. The Bitterrooters appeal. We affirm.
ISSUE
¶2 Our restatement of the issue on appeal is:
¶3 Did the District Court manifestly abuse its discretion by denying the Bitterrooters’
motion for an injunction?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 In the summer and fall of 2006, several developers submitted subdivision
applications to Ravalli County for review. In accordance with the Montana Subdivision
and Platting Act (MSPA), Title 76, chapter 3, MCA (2005), the County was obligated to
notify each applicant within a specified period of time whether its application was
“complete,” meaning that it contained the necessary information and documentation. The
County reviewing agent was then required to review the supporting documentation for
adequacy. Upon notification that an application was complete and contained adequate
supporting information, the County was required to approve, conditionally approve, or
deny the application within sixty days. Section 76-3-604, MCA (2005). The County
failed to meet these deadlines. Meanwhile, in November 2006, before these applications
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were reviewed, Ravalli County voters enacted an emergency interim zoning regulation
that limited subdivisions to one home per two acres. Phillip Taylor, an appellant in this
case, authored this zoning regulation and he and others, including the Bitterrooters,
intended it to apply to these and other development applications awaiting review.
¶5 In January 2007, numerous persons and entities, including several of the above-
referenced applicants awaiting review of their applications, filed a federal civil suit in the
United States District Court in Missoula, Montana, Lords v. Ravalli County, Cause No.
CV 07-002-M-DWM. The plaintiffs in the federal action sought compensatory and
punitive damages they alleged resulted from the County’s failure to meet the deadlines in
the MSPA. They complained that had the County acted in accordance with MSPA
deadlines, they would not have been subject to the interim zoning regulation adopted in
November 2006.
¶6 The County and the federal plaintiffs embarked on settlement negotiations and on
May 29, 2007, the County published notice of a public meeting to be held on May 31 to
discuss the proposed Agreement between the County and eleven of the fourteen federal
plaintiffs. The May 31 meeting was canceled when the County learned the draft of the
Agreement was not ready for review. On May 31, notice was published that the public
meeting would be held on June 4, 2007. Taylor requested a copy of the proposed
settlement agreement on May 31 and again on June 1, 2007, but was told it was
unavailable because it was still being drafted.
¶7 The public meeting commenced as scheduled on June 4. Following the closed
portion of the meeting in which the Board reviewed the proposed Agreement, the meeting
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was opened to the public. At that time, the Agreement was made available to the public
for the first time. Attorneys for the federal action and the County attorney reported to
meeting attendees that the Agreement would resolve the federal action and would
eliminate potential liability to the County for damages caused to the federal action
plaintiffs. The attorneys also explained the provisions of the Agreement. After the legal
presentation, the Board called a recess and encouraged attendees to review the
Agreement. Following this recess, the Board opened the floor for questions and
comments. Taylor asked questions and submitted comments. A second recess was called
and attendees were encouraged to continue reviewing the document. At the conclusion of
the second recess, no further comments were offered. Taylor testified that he used both
recesses to review the document. He stated that it contained a lot of “legalese.”
¶8 The Board concluded the June 4 meeting and announced that the meeting would
be reconvened the following morning at 10 a.m. at which time a clean, revised copy of
the Agreement would be reconsidered. On the evening of June 4, Taylor reviewed the
Agreement further and submitted additional comments to the Board by email. His
comments indicated his dissatisfaction with the Agreement. He encouraged the Board to
delay settling the federal case for several weeks to give the public more time to review
the Agreement and determine whether certain subdivisions under application should be
exempt from the interim zoning regulation. He also opined that the “public would rather
take the risk of a potential multi million dollar judgment liability [sic] by going to trial
and allowing this case to be decided on its merits.”
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¶9 The second public meeting took place as scheduled on June 5 but no members of
the Bitterrooters or the public attended. The Board acknowledged receipt of Taylor’s
comments sent by email, discussed the Agreement, and then approved it unanimously.
The Agreement did not guarantee approval of any of the subdivision applications; it
merely required the County to review the applications in accordance with the rules and
regulations in effect at the time the applications were initially submitted, before approval
of the interim zoning regulation. The signed Settlement Agreement was filed in the
federal action on June 6, 2007.
¶10 On June 14, 2007, the Bitterrooters filed an action in the Twenty-First Judicial
District Court of Montana against the Board claiming the Board had failed to provide
them a reasonable opportunity to examine the Agreement and related documents in
advance of the June 4 meeting. They asserted this violated their constitutional rights to
know and participate in government, pursuant to Article II, Sections 8 and 9 of the
Montana Constitution. They sought to void the Board’s approval of the Agreement and
to enjoin the Board from implementing the Agreement until the public had the
opportunity to review it and comment on it.
¶11 On July 16, 2007, the District Court held a hearing on the Bitterrooters’ motion for
a preliminary injunction and on August 21, it denied the motion. In September, the
Bitterrooters moved for an injunction pending appeal. On October 15, 2007, the District
Court summarily denied the motion. The Bitterrooters appealed and on November 21,
2007, this Court remanded the matter to the District Court instructing the court to issue
written findings of fact and conclusions of law to support its denial of the requested
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injunction. On December 3, 2007, the District Court issued a written opinion and order
denying the Bitterrooters’ motion for an injunction pending appeal. The Bitterrooters
then moved this Court for an injunction pending appeal, which we denied. On appeal
before us now is the District Court’s August 21, 2007 order denying the Bitterrooters’
request for a preliminary injunction.
STANDARD OF REVIEW
¶12 We review the granting or denial of a temporary or permanent injunction under the
deferential “manifest abuse of discretion” standard. St. James Healthcare v. Cole, 2008
MT 44, ¶ 21, 341 Mont. 368, ¶ 21, 178 P.3d 696, ¶ 21, citing Shammel v. Canyon
Resources Corp., 2003 MT 372, ¶ 12, 319 Mont. 132, ¶ 12, 82 P.3d 912, ¶ 12. “A
manifest abuse of discretion is one that is obvious, evident, or unmistakable.” St. James
Healthcare, ¶ 21. We review a district court’s conclusions of law to determine whether
its interpretation is correct. Yockey v. Kearns Properties, LLC, 2005 MT 27, ¶ 12, 326
Mont. 28, ¶ 12, 106 P.3d 1185, ¶ 12 (citation omitted).
DISCUSSION
¶13 The issue before us is whether the District Court manifestly abused its discretion
when it denied the Bitterrooters’ motion for a preliminary injunction. It is important to
bear in mind that the issue before us is not whether the Bitterrooters were denied a
reasonable opportunity to examine the Agreement and related documents, and whether
their constitutional rights to know and participate were violated as a consequence. That
decision is for another day. Nor are we being asked to determine the propriety of any
subdivision approval—that matter may or may not be the basis for a future case at a
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future time. Our sole function here is to decide whether the District Court abused its
discretion when it declined to enjoin the implementation of the Settlement Agreement
pending a trial on the merits of the Bitterrooters’ claims that they were denied the right to
know and participate.
¶14 Section 27-19-201, MCA, provides, in relevant part, for issuance of a preliminary
injunction:
(1) when it appears that the applicant is entitled to the relief demanded and the
relief or any part of the relief consists in restraining the commission or continuance of the
act complained of, either for a limited period or perpetually;
(2) when it appears that the commission or continuance of some act during the
litigation would produce a great or irreparable injury to the applicant;
(3) when it appears during the litigation that the adverse party is doing or threatens
or is about to do or is procuring or suffering to be done some act in violation of the
applicant’s rights, respecting the subject of the action, and tending to render the judgment
ineffectual.
¶15 We have held that only one of these subsections need be met for an injunction to
be issued. Shammel, ¶ 15. To prevail, the Bitterrooters must make a prima facie case
under any one of these statutory provisions or “show that it is at least doubtful whether or
not [they] will suffer irreparable injury before [their] rights can be fully litigated. If
either showing is made, then courts are inclined to issue the preliminary injunction to
preserve the status quo pending trial.” Benefis Healthcare v. Great Falls Clinic, 2006
MT 254, ¶ 14, 334 Mont. 86, ¶ 14, 146 P.3d 714, ¶ 14 (citation omitted). The
Bitterrooters maintain that they have made such a case under § 27-19-201(1) through (3),
MCA.
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¶16 The District Court addressed each applicable subsection of § 27-19-201, MCA, in
its order. The Bitterrooters challenge the following conclusions reached by the District
Court:
In attempting to satisfy § 27-19-201(1) criteria, . . . [the
Bitterrooters] acknowledge they and their attorney attended the noticed
meeting, received the documents they sought, and provided public
comment on June 4, 2007 . . . prior to the Commissioners’ final decision on
June 5, 2007. [They] have not alleged they were denied information they
sought, failed to understand the terms of the proposed Settlement
Agreement at the time they presented public comment, participated under a
distorted perspective of the facts, or discovered serious flaws or errors in
the Settlement Agreement. . . . [The Bitterrooters] have not made a prima
facie case that they are likely to succeed on their claims and that they are
entitled to the relief demanded to warrant issuance of a preliminary
injunction.
In attempting to satisfy the § 27-19-201(2) criteria, [the
Bitterrooters] assert implementation of the Settlement Agreement prior to
resolution of this action on its merits would cause them great and
irreparable injury in that the 11 subdivision applications addressed by the
Settlement Agreement will be exempted from the citizen-initiated
emergency interim zoning regulation without opportunity for meaningful
public comment. [They] contend the emergency interim zoning regulation
“was enacted to protect the county . . . against precisely the types of
massive and dense developments the settlement agreement allows.” It
appears [the Bitterrooters’] real argument is that the county would suffer
great and irreparable injury by being unprotected from the possibility of
approval of subdivisions that do not meet the criteria of the emergency
interim zoning regulation. This argument does not comport with the
statutory requirement that the applicant for the injunction be at risk for
irreparable injury. An injunction is improper without evidence
demonstrating, beyond mere speculation, that [the Bitterrooters] stand to
suffer some injury that would be irremediable by a future award of legal or
equitable relief. [The Bitterrooters] have failed to make a sufficient
showing that implementation of the Settlement Agreement would cause
them great and irreparable injury to warrant issuance of a preliminary
injunction. (Emphasis in original, internal citations omitted.)
In attempting to satisfy the § 27-19-201(3) criteria, [the
Bitterrooters] assert the implementation of the Settlement Agreement prior
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to a judgment in [their] favor in this action would render such judgment
ineffectual. A judgment that [the Bitterrooters’] constitutional rights to
know and participate were violated might be rendered ineffectual if the
[c]ourt exercised its discretion to void the approval of the Settlement
Agreement and if the Commissioners subsequently voted to reject the
Settlement Agreement. However, as the [c]ourt has already noted . . .
above, [the Bitterrooters] have failed to make a sufficient showing that they
are likely to prevail on the merits to warrant the issuance of a preliminary
injunction. Without a sufficient showing that the Commissioners are likely
to do some act (i.e. implement the Settlement Agreement) in violation of
[the Bitterrooters’] rights, [the Bitterrooters] have failed to make a
sufficient showing under § 27-19-201(3) to warrant issuance of a
preliminary injunction.
¶17 Summarizing these conclusions, the court stated that the Bitterrooters failed to
make a sufficient showing (1) that they were entitled to the relief demanded; (2) that
implementation of the approved Settlement Agreement during the pendency of a
determination of the ultimate issues in this case would cause them great or irreparable
injury; or (3) that implementation of the Settlement Agreement would violate their rights,
respecting the subject of the action, and tend to render the judgment ineffectual.
¶18 The Bitterrooters argue that the District Court erred in concluding that they had
not demonstrated that they would likely succeed on their claim that the Board had
violated their constitutional rights to know and participate. They assert that the court was
incorrect in finding that they had not “alleged they were denied information they sought.”
They maintain that they requested all relevant documents pertaining to the Settlement
Agreement. The Bitterrooters point out, as an example of the Board’s failure to produce
relevant documents, that the Commissioners had discussed the Agreement in e-mails but
had not provided the Bitterrooters with copies of those e-mails when asked for all
relevant documents. They assert that other un-produced relevant documents may exist
9
but without a copy of the administrative record or complete discovery, they have no way
of knowing what the Board has failed to produce. Relying on Bryan v. District, 2002 MT
264, 312 Mont. 257, 60 P.3d 381, they also insist that receiving the Agreement “mere
minutes before public comment was solicited” further deprived them of their right to
participate.
¶19 The Bitterrooters also argue that the District Court erred in finding that they had
not alleged that they did not understand the Agreement. They submit that Taylor
expressly stated that he “was unable to fully comprehend the settlement agreement and
what it purported to do in the limited time allowed for its review during the meeting and
before the then-seated Board vote[d] to approve the agreement.”
¶20 The Board counters, in part, that the Bitterrooters did not specifically raise their
appellate argument vis-à-vis withheld e-mails before the District Court in their earlier
substantive pleadings or by way of questioning during the preliminary hearing. It opines,
therefore, that we need not address this argument.
¶21 While the record does not appear to contain a substantive argument before the
District Court in relation to these e-mails, the Bitterrooters did argue that the Board
withheld “relevant documents”; therefore, we will address their claim. In this
connection, we note that the e-mails posited as the example of “un-produced relevant
documents” were provided to the Bitterrooters at or around the time of the preliminary
hearing. While the Board may not have produced them at the time the Bitterrooters
originally requested, the Board nonetheless produced them in time for the injunction
hearing. Furthermore, there is no evidence that any other relevant documentation
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pertaining to the Agreement was available but withheld prior to the public meeting. As
noted by the District Court, a party cannot be compelled to produce something it does not
have.
¶22 As for the timeliness of the availability of the Agreement, we distinguished Bryan
from the case before us in our order denying the Bitterrooters’ motion for an injunction
pending appeal. We observed that, in Bryan, the plaintiffs alleged that certain documents
were available for review several days before the public meeting, but that the school
district had denied their requests for those documents. Bryan, ¶ 38. They also argued
that the documents in question contained serious flaws and errors in the analysis (Bryan,
¶ 45), yet the school district used these documents to decide to close the schools in the
district. Bryan, ¶ 14. The plaintiffs alleged that they would have discovered the serious
flaws and errors in the analysis if the school district had provided the documents in a
timely manner in response to the plaintiffs’ requests. Bryan, ¶ 45. The plaintiffs also
alleged, and we agreed, that as a result of being denied prior access to the documents in
question, the plaintiffs were forced to operate under a distorted perspective at the public
meeting. Bryan, ¶ 45.
¶23 In contrast to Bryan, the Board here provided the Agreement to the Bitterrooters as
soon as it was available. Moreover, the Bitterrooters do not argue that the contents of the
Agreement were inaccurate or distorted or that they were forced to operate under a
distorted perspective at the public meeting. We therefore determined in our earlier order
that, under these circumstances, the timing of the availability of the Agreement did not
create a prima facie case that the Bitterrooters were entitled to an injunction pending
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appeal on the grounds of a constitutional violation. Nothing presented on this appeal
dissuades us from the accuracy of our earlier determination of this claim.
¶24 Furthermore, the comments submitted by Taylor to the Board on the evening of
June 4 belie a claim that he did not understand the contents of the Agreement. He stated
in his comments that he had read the Agreement “thoroughly” and he submitted specific
comments detailing his dissatisfaction with the contents of the document. He did not,
however, suggest revisions to the Agreement nor did he assert or imply that he did not
understand the Agreement. Under these circumstances, we conclude the District Court
did not manifestly abuse its discretion when it concluded that the Bitterrooters had not
made a prima facie case that they were entitled to preliminary injunctive relief based on a
denial of their right to know and participate.
¶25 Additionally, the Bitterrooters contend the District Court incorrectly determined
that they had not established a risk of irreparable injury particular to themselves as
opposed to the community. They first assert that the violation of a fundamental
constitutional right is per se an irreparable injury and no further showing of injury is
necessary. Notwithstanding this argument, however, they opine, without supporting legal
authority, that their particular potential injury is identical to that of the community and
their injury is not negated simply because it is shared by the general public. As a result,
they claim the District Court abused its discretion by concluding that they had failed to
establish that implementation of the Agreement would cause them great and irreparable
injury.
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¶26 Addressing the Bitterrooters’ argument that the violation of a constitutional right
is per se an irreparable injury, we note that such a conclusion arises only after a plaintiff
has demonstrated probable success on the merits of a claim. See Foti v. City of Menlo
Park, 146 F.3d 629, 643 (9th Cir. 1998). Having agreed with the District Court’s ruling
that the Bitterrooters have not affirmatively demonstrated the likelihood of success on the
merits, this argument is unpersuasive.
¶27 Turning to the Bitterrooters’ claim that they established a risk of irreparable injury
particular to Taylor or the Bitterrooters, our review of the relevant pleadings and the
injunction hearing transcript reveal no assertions of potential injury specific to the
Bitterrooters. No witnesses were called at the injunction hearing to establish the potential
for such harm, nor did the Bitterrooters identify such injury in their pleading to the
District Court. Conversely, at the injunction hearing, a Board member testified to the
direct injury the County would likely have experienced had the Settlement Agreement not
been reached. Further, while the Bitterrooters zealously argue potential harm to the
County and all of its citizens, including themselves, if these developers are not required
to comply with the zoning ordinance, we repeat that the issue of potential subdivision
approval was not the basis for this litigation; what was before the District Court in the
present litigation was whether the rights to know and participate were violated when the
Agreement was approved following a truncated review by the members of the public.
The Bitterrooters seek in this case to enjoin implementation of the Agreement, not
implementation of any possible future subdivision approval. Therefore, their assertion of
potential irreparable injury from the denial of an injunction in this case is what we must
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assess. Under these circumstances, the District Court did not manifestly abuse its
discretion when it concluded that the Bitterrooters had failed to establish a risk of
irreparable injury should an injunction not issue in this matter.
¶28 Lastly, the Bitterrooters assert that the District Court abused its discretion in its
ruling pertaining to § 27-19-201(3), MCA, and whether a future judgment in the
Bitterrooters’ favor would be rendered ineffectual by some action taken by the Board in
the meantime. While we agree that the District Court’s rationale is somewhat confusing,
we nonetheless affirm its conclusion. The Bitterrooters argue that the District Court
should issue an injunction precluding the Board from implementing the Settlement
Agreement until their meritorious claims have been heard in court. They maintain that
should they prevail in their claim that the Board violated their constitutional rights to
know and participate, then the Settlement Agreement would be voided and the Board
would have to provide sufficient time for public participation in the approval of a new
agreement. If, however, the Board has already implemented the currently-approved
Settlement Agreement, their victory on the constitutional claims would be rendered
ineffectual. This argument is flawed for two reasons.
¶29 First, as noted by the District Court, the Bitterrooters have failed to make a prima
facie case, at least thus far, that they are likely to prevail on their claims at trial. Second,
and more importantly, implementation of the terms of the Settlement Agreement would
not render a future judgment in favor of the Bitterrooters ineffectual. As noted above, the
terms of the Settlement Agreement simply require that the subdivision applications that
were not reviewed in a timely manner now be reviewed under the regulations in effect at
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the time the applications were originally filed. While the Bitterrooters want the
constraints of the interim emergency zoning regulation to be applied to review of these
applications, this is not a remedy available to the Bitterrooters in this litigation. Should
the Bitterrooters prevail on the merits of the instant claim, the remedy would be to void
the Board’s approval of the Settlement Agreement and provide greater public
participation in evaluating the terms of the Agreement before the Board again votes on
it—the remedy would not be to deny developers’ applications or to require that the terms
of the interim regulation be imposed. Bryan, ¶¶ 53-55.
¶30 Finally, we note that the interim zoning regulation adopted by the voters of Ravalli
County under § 76-2-206(2), MCA, is set to expire in November 2008 and under the
statute no further extensions may be granted. Thereafter, no development applications
will be subject to its terms. Even if we were to reach this issue, it would be difficult to
conclude that great or irreparable damage will occur now, as the Bitterrooters are
presently in the same position they will occupy in and after November 2008.
CONCLUSION
¶31 Under these circumstances, we conclude the District Court did not manifestly
abuse it discretion in denying the Bitterrooters’ request for an injunction. Affirmed.
/S/ PATRICIA COTTER
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We concur:
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS
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