07/07/2026
DA 25-0451
Case Number: DA 25-0451
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 147
DENNIS BURTON and JEANNETTE BURTON,
Petitioners and Appellants,
v.
FLATHEAD CONSERVATION DISTRICT,
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-24-594(A)
Honorable Amy Eddy, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Mark L. Stermitz, Crowley Fleck PLLP, Missoula, Montana
For Appellee:
Camisha Booth Sawtelle, Sawtelle Law Firm PLLC, Whitefish,
Montana
Submitted on Briefs: January 14, 2026
Decided: July 7, 2026
Filed:
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Dennis and Jeannette Burton (Burtons) appeal the order entered by the Eleventh
Judicial District Court, Flathead County, which granted summary judgment in favor of the
Flathead Conservation District (FCD), and upheld the FCD’s denial of Burtons’ application
for a “310 permit” to undertake work on their property along the Flathead River. We
affirm, and consider:
Whether the District Court erred by granting the FCD’s motion for summary
judgment upholding the FCD’s denial of Burtons’ application for a 310 permit.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Burtons have a residence near Kalispell, Montana, on a property lying along the
Flathead River. There exists on Burtons’ property what the parties agree is a natural pond
(Pond), described as an historical “scour feature” of the River, which holds water for at
least some parts of the year and occasionally dries up, depending on the volume of water
in the River. Over decades, the Pond has been dredged to remove silt and was utilized by
Burtons and previous owners, including Donald Burton, Dennis’ father. At some point in
the past, probably in the 1990s prior to Burtons’ ownership of the property, and by persons
unknown, a channel was dug from the River to the Pond, presumably to expand a natural
ditch or waterway and enhance the flow of water into the Pond (Channel), making the
Channel and Pond accessible by boat. These characteristics and the history of the property
present a challenging application of the FCD’s rules, titled Adopted Rules,1 which classify
1
The full title is “Adopted Rules For the Flathead Conservation District to Implement the Natural Streambed and Land Preservation Act of 1975.”
2
“natural” and “artificial” water bodies, define “in-stream” versus “off-stream” ponds, and
provide occasionally tempered parameters, such as “[o]ff-stream ponds that are connected
to a natural stream channel are discouraged.” Adopted Rules, Chap. 3, O.(2)(b).
¶3 During times of seasonal high flows in the River, Burtons’ pole barn, located on
their property, often floods. In January 2024, Burtons applied to the FCD for a stream
project permit pursuant to § 75-7-101, et. seq., MCA, the Natural Streambed and Land
Conservation Act (Act or 310 Law)2 for the purpose of “construct[ing a] berm on their
property to protect the pole barn when the water rises.” In Burtons’ later Petition for
Judicial Review filed in the District Court, they explained they had “engaged an engineer
who developed a plan to dredge the silt from the [C]hannel and [P]ond to restore it to its
former depth, and to use the dredged material to create a berm that would create protection
from flooding.” The Application assured that the project area would be protected from
erosion, would not disrupt aquatic habitat, and would not affect the River’s water flow—
the potential for which FCD would assert in the litigation.
¶4 FCD Commissioners conducted a site visit of Burtons’ property on February 26,
2024. Thereafter, a Team Member Report from the visit was prepared that stated the
project had “potential for erosion,” “could capture river flows,” could “isolate fish and
cause warm water discharge in [the] summer,” and recommended the Application be
denied. The FCD denied the application in March 2024, incorporating the Team Member
Report’s findings, and reasoning that the project did not appear to meet the stated purpose
2
The Act was originally enacted in the 1975 Legislature, introduced as Senate Bill 310, thus the “310 Law” moniker.
3
of protecting the pole barn and was in conflict with the Adopted Rules, citing the
prohibition upon dredging for “enlarging, or improving an artificial harbor, lagoon, or
in-stream pond[,]” and the Rules’ findings that “[o]ff-stream ponds that discharge back to
streams can cause adverse/harmful stream channel changes[]” and “water quality
changes[,]” and that therefore such ponds were discouraged.
¶5 Burtons filed a Petition for Judicial Review and Declaratory Judgment with the
District Court, seeking reversal of the denial of the application. Burtons contended that
“[FCD’s] denial of the 310 permit [was] unlawful because it [was] not supported by the
facts, exceeds FCD’s jurisdiction, was arbitrary, capricious or otherwise not in accordance
with law,” noting that FCD’s decision included conclusions without supporting reasoning,
such as why the project did not appear to meet the stated purpose of protecting the pole
barn. They further contended in their summary judgment briefing that FCD had failed to
review the application “dispassionately” and had “include[d] citation to documents
unrelated to Burton’s 2024 application[.]”3 In addition to seeking judicial review of the
denial, Count II of Burtons’ Petition stated, “[a]lternatively, Burtons seek a declaration
pursuant to the Uniform Declaratory Judgment Act, Mont. Code Ann. § 27-8-101, et seq.,
that FCD unlawfully denied Burtons’ 310 permit application.” FCD disputed Burtons’
3
These “unrelated documents” refer to previous permit applications filed by Dennis’s father. In its summary judgment briefing, FCD stated that Donald Burton (Donald) filed 10 permit applications when he owned the property. Six of those, which did not include dredging the Channel, were approved by the FCD. However, in one of the prior applications to enlarge the Channel and Pond, a report from Montana Fish Wildlife and Parks urged denial of the application because “[t]he proposed excavation of the ditch and wetland do not meet the intent of the Natural Streambed and Land Preservation Act (310 law) to preserve streams in their natural, unaltered state as closely as possible.” The Pond on Burtons’ property was formerly dubbed a “lagoon” in Donald’s applications.
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claim that it did not have jurisdiction over the application, contending “[t]here are no
disputed facts that this is a project under § 75-7-103(5), M.C.A. and that FCD correctly
assumed jurisdiction.”
¶6 The District Court granted summary judgment to FCD and upheld the denial of
Burtons’ application. Noting the definition of “project” in § 75-7-103(5), MCA, as “a
physical alteration or modification that results in a change in the state of a natural,
perennial-flowing stream or river, its bed, or its immediate banks,” the District Court
concluded that FCD had jurisdiction here because there was sufficient evidence the Pond
was “an in-stream pond and that the man-made [C]hannel connects the [P]ond with the
Flathead River,” thus presenting “a physical alteration that could result in a change in the
state of the Flathead River, a natural perennial-flowing stream.” While FCD had entered
some conclusions without explanation, the District Court reasoned there were other bases
on which the FCD had properly denied the application. Noting there was record support
of a connection between the River and the Pond, the District Court stated, “[t]hat
connection to the river makes the pond an in-stream pond. In-stream ponds are prohibited.”
The District Court concluded that FCD had not erred by supplementing the administrative
record with information about prior applications made by Donald Burton, because “[t]here
is no evidence that the prior applications created bias on behalf of the [FCD] in making
their determination on this application.”
¶7 Burtons appeal.
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STANDARD OF REVIEW
¶8 “We review a district court’s ruling on motions for summary judgment de novo,
using the same M. R. Civ. P. 56 (Rule 56) criteria used by the district court.” Chapman v.
Maxwell, 2014 MT 35, ¶ 7, 374 Mont. 12, 322 P.3d 1029 (citation omitted). We review an
agency’s conclusions of law for correctness. Stalowy v. Flathead Conservation Dist.,
2020 MT 155, ¶ 10, 400 Mont. 266, 465 P.3d 1170. “An agency’s interpretation of its rule
is afforded great weight, and the court should defer to that interpretation unless it is plainly
inconsistent with the spirit of the rule. The agency’s interpretation of the rule will be
sustained so long as it lies within the range of reasonable interpretation permitted by the
wording.” Clark Fork Coal. v. Mont. Dep’t of Env’t Quality, 2008 MT 407, ¶ 20,
347 Mont. 197, 197 P.3d 482.
¶9 A review of a final action by the conservation district supervisors or commissioners
on a proposed project may be obtained by petitioning the district court of the county where
the project is located. Section 75-7-121(1), MCA. The District Court noted that Burtons
did not “petition the supervisors for a declaratory ruling under Section 75-7-125(2),
MCA[,]” but rather “bypassed the declaratory ruling process and petitioned for judicial
review pursuant to Section 75-7-121, MCA, rendering the declaratory ruling standards of
review inapplicable.” That ruling is not challenged on appeal.
DISCUSSION
¶10 Burtons argue that the characteristics of the property, and the design of their
proposed project, permissibly navigate through FCD’s Adopted Rules and around
prohibitions stated therein, and therefore FCD legally erred by denying their application,
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which the District Court incorrectly upheld. They ask that the summary judgment in favor
of FCD be reversed, and judgment be entered in their favor.
¶11 Specifically, regarding the Rules, they proffer: the Pond is not an “in-stream pond,”
and thus the prohibition of Chap. 3, O.2(a) (“[i]n-stream ponds are prohibited”) does not
apply; the Pond, originally an historical “scour feature,” is not an “artificial” pond, and
thus the prohibition of Chap. 3, I.2(h) (“[d]redging for the purpose of creating, enlarging,
or improving an artificial harbor, lagoon, or in-stream pond is prohibited”) (emphasis
added) does not apply; the Pond is not an “impoundment,” and, as their briefing states,
“there is nothing in Burtons’ application suggesting the naturally-created pond is an
‘impoundment,’” and thus neither the definition of an “[i]n-stream pond” under Chap. 1,
Rule 4(36) (“[i]n-stream pond means an impoundment of water located on the bed or
immediate bank of a stream”) (emphasis added) nor the definition of an “[o]ff-stream
pond” under Chap. 1, Rule 4(36) (“[o]ff-stream pond means an impoundment of water
located away from but connected to the bed or immediate banks of a stream by means of a
ditch, pipeline, or conveyance system through which water is diverted from or into a
stream”) (emphasis added) applies; the application did not propose dredging in a
“streambed” or a “bank,” and thus the consideration required by Chap. 3, I.1(a) (“[i]n
determining a reasonable means of dredging, consideration must be given to the fact that
dredging of a streambed or bank could have adverse effects due to suspension of fine
materials, re-suspension of nutrients and toxic materials, exposure of stable streambed
sediments to unstable conditions, removal of stream bed armament and creation of steep
bench areas”) does not apply; the Pond does not discharge back to the River, there is no
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evidence that the project would cause that to occur, and the District Court “erroneously
treated the [Channel] as a continuous connection to the Flathead River in part by
misconstruing a statement about the [P]ond’s surface water connection” with the River in
a letter from Burtons’ hydrologist, and thus the concerns raised about impacts of dredging
in a stream bed and return flows to the River are “gratuitous and irrelevant”; although
conceding that the issue is not dispositive here, Burtons indicate the Pond area does not
constitute “wetlands” under federal regulations; and, lastly, that the project falls outside
the application of the Adopted Rules altogether, because the Pond is neither an in-stream
nor an off-stream pond, and the Channel is exempted under Chap. 1, Rule 5(4) (“[t]hese
rules do not apply to ditches, intermittent streams, or wetlands not associated with the bed
or immediate banks of a stream”) and under Chap. 1, Rule 5(5)(a)(iii) (“[a]rtificial or
man-made waterways that have been constructed for the purposes of conveying water for
any purpose are not considered a natural waterway”).
¶12 Burtons’ conclusion from this analysis is that the Adopted Rules do not prohibit or
even apply to the project because the particular “configuration of the natural [P]ond and
[the] artificial [C]hannel on Burtons’ property to which the District Court referred has
existed without FCD objection for decades. Burtons’ application did not seek approval for
what was already there.” Therefore, as they argue, “[t]hese circumstances take Burtons’
project outside of the prohibitions in FCD rules.”
¶13 However, we reach a contrary conclusion. While “impoundment” is not defined by
the Rules, and gives an analytical opening to argue that the Pond fits neither the definition
of “in-stream” or “off-stream” pond, it is difficult to envision how a pond can collect and
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hold water without a natural or man-made catching or impounding of the water. As FCD
argues, “[l]ogically, dredging a man-made channel to allow more water from the Flathead
River to enter, dredging the pond, and placing the dredged material around the perimeter
of the pond as proposed will result in the impoundment of additional water.” Here,
impounding originally occurred by a flow from the River entering a natural ditch or
waterway to form the Pond, described as an historical “scour feature,” and still occurs by
way of the Channel that has artificially enhanced such flow by man-made efforts. The
Channel is thus part natural and part artificial, and cannot be exempted under the Adopted
Rules as entirely artificial. See Bitterroot River Protective Ass’n v. Bitterroot Conservation
Dist., 2008 MT 377, ¶ 37, 346 Mont. 507, 198 P.3d 219 (citing 1975 Mont. Laws ch. 463,
§ 2) (“When passing the 310 Law, the Legislature recognized man’s impact, both past and
future, upon the State’s waters, requiring that rivers and streams ‘are to be protected and
preserved to be available in their natural, or existing state, and to prohibit unauthorized
projects.’”) (Emphasis in original.) Given this impoundment of water, the Pond satisfies
the definition of at least an off-stream pond, as one “located away from but connected to
the bed or immediate banks of a stream by means of a ditch, pipeline, or conveyance system
through which water is diverted from or into a stream,” Chap. 1, Rule 4(36) (emphasis
added), the development of which, as noted by the FCD, is discouraged. See Adopted
Rules, Chap. 3, O(2)(b) (“Off-stream ponds that are connected to a natural stream channel
are discouraged.”). “Immediate banks” is further defined as “the area above the mean
high-water mark and directly adjacent to the stream, which when physically altered or
modified has the potential to affect the state of a stream.” Admin. R. M. 36.2.402(5)
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(1997). Photographs submitted with the application indicate that the proposed soil removal
area for dredging of the Channel includes the bank area directly along the River that flows
past the property, indeed, portions of the bank itself.4 Thus, characteristics of the project,
including both the history of the Pond and the details of the proposed work, place it within
the Adopted Rules’ “discourage[ment]” of the project. While not categorically prohibited
by the Rules, it is clear that Burtons’ argument the FCD erred as a matter of law is incorrect.
¶14 Burtons want to exempt this project from the FCD’s jurisdiction because it is an
atypical “configuration of the natural pond and artificial channel” that arguably does not
fit squarely within the Rules because it “has existed without FCD objection for decades”
and their application “did not seek approval for what was already there.” However, they
are nonetheless seeking approval to enhance and expand this atypical use in ways that could
well impact the River. As FCD argues, the proposed soil removal area, upon dredging,
will clearly enhance the connection of the Pond to the River, and “[t]here is no proposed
plan to restrict the flow of water through the man-made channel to and from the Flathead
River.” The FCD was prudent to question the dredging of the Channel and Pond, lying, as
they do, directly adjacent to the River.
¶15 We affirm the District Court’s conclusion that “[t]here is sufficient evidence to
support the [FCD’s] determination that the [C]hannel is connected to the stream bed of the
Flathead River,” and that, because “the [C]hannel is connected to the stream bed[,]” the
4
We are not holding that a naturally occurring pond must necessarily be considered an artificial harbor or lagoon for purposes of the Adopted Rules merely because of the Legislature’s general recognition of the human impact on the State’s waters, but rather that the particular history here demonstrates that the Pond has been enhanced by artificial means.
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project “does not fall within exceptions to the [FCD’s] jurisdiction for ditches, etc. not
connected to the stream bed.” Consequently, we affirm the District Court’s further
conclusions that the FCD had jurisdiction over the project and denied the application
pursuant to the Adopted Rules.
¶16 Burtons also argue that FCD’s brief statement that “the project does not meet the
stated purpose of protecting the pole barn” was a “conclusion[] without any rationale” and
therefore was an insufficient basis for decision. We note that this statement by the FCD
was made in addition to its assessment and application of the Adopted Rules to the project,
discussed above. The District Court concluded that, despite any lack of explanation for all
of its statements, the FCD nonetheless articulated sufficient legal grounds for denial of the
permit within its entire analysis.5 We agree that whatever insufficiencies existed in the
FCD’s explanation of some conclusions, such error was harmless in light of the other
supported bases for denial. We further conclude that review of the prior applications was
not error. See DeBuff v. Mont. Dep’t of Nat. Res. & Conservation, 2021 MT 68, ¶ 34,
403 Mont. 403, 482 P.3d 1183 (it does not violate due process for an agency to “consider
not only the evidence provided to it during the application process but also information
within its records[,]” as long as the applicant is properly put on notice).
¶17 Affirmed.6
5
The concern about whether the project would meet the purpose of protecting the pole barn would logically arise from the intention to direct significantly more water into the Pond. 6
We note that the FCD’s decision indicated the possibility of reviewing “project changes” that could properly alleviate the problem of flooding on the property.
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/S/ JIM RICE
We Concur:
/S/ CORY J. SWANSON
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ KATHERINE M. BIDEGARAY
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