Clark Fork Coalition v. Tubbs

Clark Fork Coalition v. Tubbs, 2017 MT 184 (July 25, 2017) (Baker, J.; McKinnon, J., specially concurring) (5-0, rev’d)

Issue: Whether the Coalition was entitled to attorney fees under the private attorney general doctrine following it successful challenge to the DNRC’s exempt-well rule.

Short Answer: No.


Facts: The Clark Fork Coalition and other plaintiffs challenged a DNRC rule regarding groundwater appropriations exempt from permitting requirements (the exempt-well rule). The district court invalidated the rule and this Court affirmed. Clark Fork I, 2016 MT 229.

Prior to this Court’s decision in Clark Fork I, the Coalition had moved for fees under the PAG doctrine and the district court had granted the motion. The court held that the DNRC’s promulgation of the 1993 rule was not a quasi0judicial function, and reasoning that the litigation implicated constitutional interests. The parties stipulated to fees of $100,000 but agreed that the DNRC would not pay the fees or appeal the fees decision until this Court decided Clark Fork I. 

Procedural Posture & Holding: The Coalition moved for fees under the private attorney general doctrine, and the district court granted the motion. The DNRC appeals and the Supreme Court reverses.

Reasoning: The PAG doctrine is a limited equitable exception to the American Rule. Under which parties are not entitled to attorney’s fees absent a statutory or contractual provision. The doctrine applies when the government fails to properly enforce interests that are significant to its citizens. In determining whether to award fees under the doctrine, the Court considers: (1) the strength or societal importance of the public policy vindicated by the litigation, (2) the necessity for private enforcement and the magnitude of the burden on the plaintiff, and (3) the number of people who benefit from the decision.

The doctrine is not applicable unless the litigation vindicates constitutional interests. Because the issue in the underlying litigation was one of statutory interpretation, not constitutional interests, the district court erred in awarding fess.