Opinion
DA 21-0535
06-07-2022
FLATHEAD LAKERS INC., a Montana non-profit public benefit corporation, AMY J. WALLER, STEVEN F. MOORE, CYNTHIA S. EDSTROM, ADELE ZIMMERMAN, MARTIN FULSAAS and GAIL A. WATSON-FULSAAS, LAUREL FULLERTON, ALAN and DEIRDRE COIT, and FRANK M. WOODS, Petitioners and Appellees, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, and MONTANA ARTESIAN WATER COMPANY, Respondents and Appellants, and WATER FOR FLATHEAD'S FUTURE, Intervenor.
ORDER
Respondent and Appellant Montana Department of Natural Resources and Conservation (DNRC) moves to dismiss the eross-appeal of Petitioners. and Appellees Flathead Lakers et al. (Flathead Lakers) on the grounds that the Notice of Cross-Appeal was untimely filed. Flathead Lakers oppose the motion, arguing that this matter has been beset from procedural abnormalities since the outset and that justice requires the cross-appeal to be heard even if the Notice was untimely filed. They both respond to DNRC s motion and petition for out-of-time appeal. DNRC has not responded to Flathead Lakers' petition for out-of-time appeal.
In its motion to dismiss the cross-appeal, DNRC argues that since Flathead Lakers' motion for attorney fees was deemed denied by operation of Rule 59(f) as of December 13, 2021, the Notice of Cross-Appeal is untimely as Flathead Lakers would have had to file it by February 11, 2022, under M. R. App. P. 4(5)(a).
In response, Flathead Lakers concede that the Notice of Cross-Appeal is untimely. However, relying on M. R. App. P. 4(6), and with supporting affidavit from counsel, they urge this Court to allow the cross-appeal to proceed. Rule 4(6) provides:
In the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice, the supreme court may grant an out-of-time appeal. An out-of-time appeal must be requested by verified petition supported by affidavits, records, and other evidence establishing the existence of the extraordinary circumstances claimed. Extraordinary circumstances do not include mere mistake, inadvertence, or excusable neglect.
While we do not entirely agree with Flathead Lakers' legal arguments, we do agree with Flathead Lakers that this case has presented a procedurally confusing situation in which neither the parties nor the District Court had a clear grasp on the appellate timeline- uncertainty which this Court recognized and has attempted to alleviate in part via amendments to M. R. Civ. P. 58(e) and M. R. App. P. 4(5)(a) which became effective January 1, 2022. In the Matter of the Montana Rules of Civil Procedure, No. AF 07-0157, Order (Mont. Oct. 12, 2021); In the Matter of the Montana Rules of Appellate Procedure, No. AF 07-0016, Order (Mont. Oct. 12, 2021). In particular, once Flathead Lakers learned of the existence of the District Court's November 1, 2021 Order on Bifurcation, they had no way of knowing prior to this Court's March 15, 2022 Order denying Flathead Lakers' petition for rehearing that this Court would not consider the Order on Bifurcation to be an .order extending the time in which the District Court had to rule on Flathead Lakers' motion for attorney fees as provided in M. R. Civ. P. 59(f) and it is that determination which rendered their Notice of Cross-Appeal untimely. We therefore conclude that extraordinary circumstances exist such that denying Flathead Lakers' cross-appeal as untimely would be unjust.
IT IS THEREFORE ORDERED that the Motion to Dismiss Cross-Appeal is DENIED.
IT IS FURTHER ORDERED that the petition for an out-of-time cross-appeal is GRANTED.
The Clerk is directed to give notice of this Order to all counsel of record.