author: LORELLO, Judge

text:
    STATE of Idaho, Plaintiff-Respondent, v. Miranda Rianna REEDER, Defendant-Appellant.
    Docket No. 45593
    Court of Appeals of Idaho.
    Filed: January 30, 2019 Review Denied April 23, 2019
    Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, Deputy Appellate Public Defender, Boise, for appellant.
    Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.
   LORELLO, Judge

Miranda Rianna Reeder appeals from her judgment of conviction for one count of felony possession of a controlled substance and one count of misdemeanor possession of a controlled substance. Reeder challenges the district court's order denying her motion to suppress. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 1:30 a.m., an officer noticed a vehicle parked on the side of the road with its lights off and its engine running. The officer parked his patrol car approximately twenty feet behind the vehicle, but did not activate the patrol car's overhead lights or sirens. When the officer approached the vehicle, he saw two occupants inside who appeared to be sleeping or passed out; the passenger was later identified as Reeder. The officer waited for a backup officer before making contact with the vehicle's occupants. After the backup officer arrived, he tapped on the window on the passenger side of the car while the first officer asked the driver if he could roll down the window. When the driver indicated the window was broken, the officer asked the driver if he could open the door. The officer smelled the odor of marijuana within seconds of the driver opening the door. During a subsequent search of Reeder and her purse, the officer discovered heroin, marijuana, and paraphernalia.

The State charged Reeder with felony possession of a controlled substance (heroin), misdemeanor possession of a controlled substance (marijuana), and possession of paraphernalia. Reeder filed a motion to suppress, alleging she was unlawfully seized. The district court denied Reeder's motion. Reeder thereafter entered a conditional guilty plea to the two possession of a controlled substance charges, reserving her right to challenge the denial of her motion to suppress, and the State dismissed the paraphernalia charge. Reeder appeals.

II.

STANDARD OF REVIEW

The standard of review of a suppression motion is bifurcated. When a decision on a motion to suppress is challenged, we accept the trial court's findings of fact that are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. Atkinson , 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina , 127 Idaho 102, 106, 897 P.2d 993, 997 (1995) ; State v. Schevers , 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).

III.

ANALYSIS

Reeder contends that the district court erred in denying her motion to suppress, asserting the district court's decision was based on an erroneous factual finding regarding the tone of the officer's statements and an erroneous legal conclusion regarding the nature of the encounter. The State responds that Reeder has failed to show clear error in the district court's factual finding and that the district court correctly concluded "the driver's initial contact with police was consensual and not a seizure." Reeder has failed to show error in the district court's factual finding or its conclusion that Reeder was not entitled to suppression.

The Fourth Amendment to the United States Constitution, and its counterpart, Article I, Section 17 of the Idaho Constitution, guarantee the right of every citizen to be free from unreasonable searches and seizures. However, not all encounters between the police and citizens involve the seizure of a person. Terry v. Ohio , 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Jordan , 122 Idaho 771, 772, 839 P.2d 38, 39 (Ct. App. 1992). Only when an officer, by means of physical force or show of authority, restrains the liberty of a citizen may a court conclude that a seizure has occurred. State v. Fry , 122 Idaho 100, 102, 831 P.2d 942, 944 (Ct. App. 1991). A seizure does not occur simply because a police officer approaches an individual on the street or other public place, by asking if the individual is willing to answer some questions, or by putting forth questions if the individual is willing to listen. Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ; Florida v. Royer , 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Unless and until there is a detention, there is no seizure within the meaning of the Fourth Amendment and no constitutional rights have been infringed. Royer , 460 U.S. at 498, 103 S.Ct. 1319. Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions and ask to examine identification. Fry , 122 Idaho at 102, 831 P.2d at 944. So long as police do not convey a message that compliance with their requests is required, the encounter is deemed consensual and no reasonable suspicion is required. Id. Only when an officer, by means of physical force or show of authority, restrains the liberty of a citizen may a court conclude that a seizure has occurred. Id . Importantly, the critical inquiry is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he or she was not at liberty to ignore the police presence and go about his or her business. Bostick , 501 U.S. at 436, 111 S.Ct. 2382.

The United States Supreme Court, in United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), stated:

Examples of circumstances that might indicate seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Other circumstances that may indicate a seizure include whether an officer used overhead emergency lights or took action to block a vehicle's exit route. State v. Willoughby , 147 Idaho 482, 487-88, 211 P.3d 91, 96-97 (2009) ; State v. Schmidt , 137 Idaho 301, 302-03, 47 P.3d 1271, 1272-73 (Ct. App. 2002) ; Fry , 122 Idaho at 103, 831 P.2d at 945.

The following facts were found by the district court. At approximately 1:30 a.m., an officer found a vehicle parked on the side of the road. The vehicle was running, but its lights were off. The driver and passenger inside the vehicle were "slumped over to the side." The officer called for backup. After the backup officer arrived, the backup officer tapped on the vehicle's window and the first officer said: "Post Falls police. Can you roll your window down, please?" The driver responded by explaining that the window was broken, to which the officer replied: "Can you open the door?" The district court found that the inflection in the officer's voice was more consistent with a question than a command and that the driver opened the door consensually. The officer smelled marijuana "within seconds" of the door opening. Based on these findings, the district court denied Reeder's motion to suppress.

Reeder raises two challenges to the district court's decision. First, Reeder argues that the district court made an erroneous factual finding when it determined that the officer's "statement was a question, not a command." Second, Reeder argues that the district court erred in finding the encounter consensual because a reasonable person in her position would not feel at liberty to ignore the officer and terminate the encounter. We will address each argument in turn.

First, the district court's factual finding that the inflection in the officer's voice was more consistent with a question than a command was not clearly erroneous. Findings are clearly erroneous only when unsupported by substantial and competent evidence. State v. Kinser , 141 Idaho 557, 560, 112 P.3d 845, 848 (Ct. App. 2005). The evidence presented at the suppression hearing included the officer's testimony and the video exhibit of the encounter. The district court stated it "paid particular attention to the tone" of the officer's voice and concluded that the officer's request that the driver roll down his window was a question and that the driver's act of opening the door was consensual. In making this finding, the district court considered the officer's testimony at the suppression hearing as well as other statements the officer made on the video recording. The officer's testimony included explaining that his "tone" was "audible enough to be heard through the window, but it wasn't demanding in any way." The video exhibit supports this description and the district court's characterization of the officer's tone. Thus, there was substantial and competent evidence to support the district court's factual finding. That Reeder's assessment of the officer's tone is different than the district court's does not demonstrate clear error based upon a lack of substantial and competent evidence.

Second, the district court's conclusion that suppression was not warranted in this case was correct. On this point, we first note that the evidence presented to the district court centered on the officer's interaction with the driver of the vehicle and not on any specific interaction with Reeder. It is well-established that a traffic stop of a vehicle and detention of its driver is generally a detention of any passengers such that passengers have standing to contest the reasonableness of the detention. See State v. Gutierrez , 137 Idaho 647, 650, 51 P.3d 461, 464 (Ct. App. 2002). However, the detention in this case was not the result of a traffic stop. While the officer's interaction with the driver is relevant as part of the totality of the circumstances surrounding the encounter, the Fourth Amendment question in this case is whether the police conduct would have communicated to a reasonable person in Reeder's position that she was not at liberty to ignore the police presence and go about her business. See Bostick , 501 U.S. at 436, 111 S.Ct. 2382. Reeder argues that no reasonable person in her position would have believed she was free to terminate the encounter following the officer's "command" to the driver to roll down the window and "order" to open the door because she "would have been unable to open [her] door without forcing the officer to move or hitting the officer with the door." Reeder further argues "it would be unreasonable to believe a passenger--having been transported to that location by the driver--would be free to abandon the vehicle and go about her business" because the passenger "would not have immediate transportation" and "would be effectively stranded in the officer's presence." There are two flaws in Reeder's argument. The first flaw is that the argument ignores the district court's finding that the officer's statements were questions, not commands.

The second flaw in Reeder's argument is that it is partly based on evidence that was not presented to the district court. It was Reeder's burden to show she was seized. See State v. Cardenas , 143 Idaho 903, 907, 155 P.3d 704, 708 (Ct. App. 2006). The district court did not make any findings regarding the backup officer's position in relation to the passenger door, how Reeder came to be a passenger in the car, or whether she would be "stranded" if she decided to get out of the car and walk away. Presumably, the district court did not make findings of this nature because the officer, who was the only witness who testified at the suppression hearing, was not asked about these details, nor are these details apparent from the portions of the video exhibit presented to the district court. Although the entirety of the video was admitted as an exhibit pursuant to stipulation, Reeder did not play any portion of the video at the suppression hearing. The State played a brief portion of the video, up to approximately minute 1:22, which is when the driver opened the door and the officer smelled marijuana. In its findings, the district court noted it reviewed the video "to the extent it was played in court." While the video reflects Reeder telling the officer, at approximately minute 2:40, that the driver picked her up from her mom's house, Reeder did not play this portion of the video at the suppression hearing or argue to the district court that this was evidence that a reasonable person in her position would not feel free to leave due to a lack of transportation. Moreover, Reeder did not make that statement to the officer in the context of explaining an inability to leave. Rather, Reeder made the comment when she and the driver were explaining that they were waiting to see if they could stay the night at the driver's mom's house who the driver reported lived directly across the street from where they were parked. To the extent Reeder's argument is predicated on a theory not presented to the district court, we will not consider it on appeal. Appellate court review is limited to the evidence, theories, and arguments that were presented below. State v. Garcia-Rodriguez , 162 Idaho 271, 275, 396 P.3d 700, 704 (2017). Even considering the totality of the evidence presented, we conclude that the circumstances surrounding the initial encounter between Reeder and the officers show it was consensual. The officers could lawfully engage the occupants of the vehicle, and the officer's requests to the driver to roll down the window and open the door did not convey a message that Reeder was not free to leave. See State v. Zubizareta , 122 Idaho 823, 827, 839 P.2d 1237, 1241 (Ct. App. 1992) (concluding the driver of a car was not seized when an officer walked up to his car, tapped on the window, and engaged the driver in brief conversation). Nor was there any evidence presented that Reeder was "trapped" by virtue of her status as a passenger. Once the driver opened the door, the odor of marijuana gave the officers reasonable suspicion to detain the driver and Reeder. Compare with State v. Pieper , 163 Idaho 732, 735, 418 P.3d 1241, 1244 (Ct. App. 2018) (concluding that initial consensual encounter with occupants of a parked vehicle evolved into a detention based on reasonable suspicion when the officers saw marijuana in plain view within seconds of making contact).

Based on the totality of the circumstances, the district court did not err in its conclusion that the encounter between Reeder and law enforcement was consensual up until there was reasonable suspicion that Reeder possessed marijuana. The district court did not err in denying Reeder's motion to suppress.

IV.

CONCLUSION

The district court correctly concluded the initial encounter between Reeder and law enforcement was consensual. Reeder was not detained until there was reasonable suspicion that she possessed marijuana. Therefore, Reeder has failed to show the district court erred in denying her motion to suppress. Accordingly, Reeder's judgment of conviction for one count of felony possession of a controlled substance and one count of misdemeanor possession of a controlled substance is affirmed.

Chief Judge GRATTON and Judge HUSKEY concur.

      Reeder does not directly challenge the district court's factual findings regarding what the officer said upon making contact with the driver, but notes that the video of the encounter, which was admitted as an exhibit, reflects that the officer said "Post Falls PD" rather than "Post Falls police" and said "Can you roll your window down for me please?" rather than "Can you roll your window down, please?" Reeder is correct regarding the precise language used by the officer, but the differences identified between the district court's factual findings and the video exhibit do not change our analysis.

      Recently, in State v. Andersen , 164 Idaho 309, 312, 429 P.3d 850, 853 (2018), the Idaho Supreme Court indicated that, in the "unusual situation" where the parties at a suppression hearing stipulate to have the district court decide the issue based solely on exhibits (such as a transcript and video) without the presentation of live testimony, the appellate court does "not extend the usual deference to the district court's evaluation of the evidence." We do not read this modified standard of review as eliminating the traditional deference to a district court's factual findings regarding tone when evaluating the totality of the circumstances surrounding an alleged seizure where, as here, the appellate court does not have "exactly the same evidence before it as was considered by the district court."Id. Indeed, the Court in Andersen was clear that it is only in the limited circumstances where the evidence is "exactly the same" that free review is appropriate. Id.


source: Caselaw Access Project

author: GRATTON, Chief Judge

license: Public Domain

text:
    Ezequiel Adan CAMPOS, aka Ezequiel Z. Campos, Petitioner-Appellant, v. STATE of Idaho, Respondent.
    Docket No. 45591
    Court of Appeals of Idaho.
    Filed: February 27, 2019 Review Denied April 23, 2019
    Eric D. Fredericksen, State Appellate Public Defender; Elizabeth Ann Allred, Deputy Appellate Public Defender, Boise, for appellant.
    Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.
   GRATTON, Chief Judge

Ezequiel Adan Campos appeals from the district court's judgment dismissing his petition for post-conviction relief. Campos argues that the district court erred in summarily dismissing his post-conviction claims because he presented genuine issues of material fact as to his ineffective assistance of trial counsel claim. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2016, pursuant to a plea agreement, Campos pled guilty to unlawful possession of a weapon, Idaho Code § 18-3316. The district court imposed a unified term of five years with four years determinate to run consecutive with a sentence in an unrelated case (Canyon County case). Campos did not file a direct appeal.

In 2017, Campos filed a pro se petition for post-conviction relief raising numerous claims. Thereafter, Campos was appointed post-conviction counsel. Appointed counsel chose not to amend Campos' petition. As relevant to his claim on appeal, Campos alleged that his trial counsel was ineffective for leading him to believe that he would receive a concurrent sentence, and advising him to "simply agree in the 'positive' with what ever (sic) was ask[ed] at pleading" and counsel would address Campos' sentencing questions later pursuant to an Idaho Criminal Rule 35 motion. The State filed a motion for summary dismissal arguing that the claim was disproved by the record. After a hearing on the motion, the district court summarily dismissed Campos' petition. Campos timely appeals.

II.

ANALYSIS

A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-4907 ; Rhoades v. State , 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009) ; State v. Bearshield , 104 Idaho 676, 678, 662 P.2d 548, 550 (1983) ; Murray v. State , 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Goodwin v. State , 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State , 141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached or the petition must state why such supporting evidence is not included with the petition. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations, or the petition will be subject to dismissal. Wolf v. State , 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).

Idaho Code Section 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Roman v. State , 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994) ; Baruth v. Gardner , 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather, the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State , 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id.

Claims may be summarily dismissed if the petitioner's allegations are clearly disproven by the record of the criminal proceedings, if the petitioner has not presented evidence making a prima facie case as to each essential element of the claims, or if the petitioner's allegations do not justify relief as a matter of law. Kelly v. State , 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010) ; DeRushé v. State , 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in the petitioner's favor. For this reason, summary dismissal of a post-conviction petition may be appropriate even when the state does not controvert the petitioner's evidence. See Roman , 125 Idaho at 647, 873 P.2d at 901.

Conversely, if the petition, affidavits, and other evidence supporting the petition allege facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be summarily dismissed. Charboneau v. State , 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004) ; Sheahan v. State , 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. Goodwin , 138 Idaho at 272, 61 P.3d at 629.

On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State , 148 Idaho 671, 675, 227 P.3d 925, 929 (2010) ; Sheahan , 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free review. Rhoades , 148 Idaho at 250, 220 P.3d at 1069 ; Downing v. State , 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).

A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Barcella v. State , 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show that the attorney's performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Self v. State , 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State , 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988) ; Knutsen v. State , 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where, as here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the petitioner must show that there is a reasonable probability that, but for counsel's errors, he or she would not have pled guilty and would have insisted on going to trial. Plant v. State , 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006). This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Gonzales v. State , 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).

In his petition for post-conviction relief, Campos alleged that counsel told him that his sentence would be concurrent and after he realized there was an error in his plea agreement and informed counsel, counsel told Campos to "lie" to the district court during the change of plea hearing and just "roll with it." Campos alleges that trial counsel told him that any errors regarding his sentence would be corrected later either during sentencing or pursuant to an I.C.R. 35 motion. Based on these allegations, Campos argues that his guilty plea was not knowing, voluntary, and intelligent and had he known that an agreement for his sentence to run concurrent with the Canyon County case did not actually exist, there is a reasonable probability that he would have rejected the plea agreement and proceeded to trial. The district court found that Campos' allegations were disproved by the record. We agree.

Campos made numerous assurances that he understood the terms of his plea agreement in the guilty plea advisory form. Specifically, Campos understood that according to the plea agreement, his sentence was open for argument and the district court was not bound by the plea agreement when imposing sentence. When asked in the guilty plea advisory form "what are the terms of th[e] plea agreement?" Campos handwrote "plead guilty to felon in pos[session] of firearm open sentencing." Campos circled "yes" when asked, "[d]o you understand that the only person who can promise what sentence you can actually receive is the Judge?" Additionally, Campos initialed next to the paragraph that stated he:

underst[ood] that the court is NOT bound by the plea agreement or any sentencing recommendations, and may impose any sentence authorized by law, including the maximum sentence stated above. Because the court is not bound by the agreement, if the district court chooses not to follow the agreement, I will not have the right to withdraw my guilty plea.

Campos assured the court that no other promises were made to him that influenced his decision to plead guilty and he was doing so both freely and voluntarily. Finally, when asked, "[o]ther than in the plea agreement, has any person promised you that you will receive any special sentence, reward, favorable treatment, or leniency with regard to the plea you are about to enter?" Campos circled "No." Campos swore under penalty of perjury that his answers contained in the guilty plea advisory form were true and correct.

In his post-conviction petition, Campos acknowledges that, during the change of plea hearing, he assured the district court that his plea was freely and voluntarily made. Nonetheless, Campos claims that he was lying to the district court throughout the change of plea hearing based on the advice and assurances of his trial counsel. However, under oath, Campos' testimony at the change of plea hearing reaffirmed the same assurances that Campos made in the guilty plea advisory form. Furthermore, Campos' counsel explained the content of the plea agreement on the record stating, "he's going to plead guilty to Count II, a felon in possession of a firearm. The other counts would be dismissed. Sentencing is open to argument." Additionally, on two separate occasions the district court informed Campos that his sentence was open for argument. The court also explained,

Court: You understand that at sentencing I could decide to give you five years fixed?
Campos: Yes, sir.
Court: And I could make it consecutive to the Canyon County case?
Campos: Yes, Sir.

Campos contends that the district court is required to conduct an evidentiary hearing when, as here, the statements he makes in post-conviction are contrary to the statements he made incident to the guilty plea. However, this is exactly the situation where the appellate courts have held that the post-conviction claims are belied by the record and subject to summary dismissal. See Roman , 125 Idaho at 647, 873 P.2d at 901 ; see also Kelly , 149 Idaho at 521, 236 P.3d at 1281. Without more, the district court is not, contrary to Campos' assertion, required to conduct an evidentiary hearing to determine which of Campos' contrary statements is more credible. Consequently, Campos' post-conviction claim that he relied on erroneous advice from counsel when entering his guilty plea is disproved by the record. Thus, the district court did not err in summarily dismissing Campos' petition for post-conviction relief.

III.

CONCLUSION

The district court did not err in granting the State's motion for summary dismissal. Therefore, the judgment of the district court summarily dismissing Campos' petition for post-conviction relief is affirmed.

Judge LORELLO and Judge BRAILSFORD concur.

      We do not here address the circumstance where petitioner submits evidence in addition to the contradictory statements in support of the post-conviction claim.


text:
    UPPER MISSOURI WATERKEEPER, Plaintiff and Appellant, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant and Appellee, and The City of Billings, Defendant, Intervenor and Appellee.
    DA 18-0462
    Supreme Court of Montana.
    Submitted on Briefs: February 13, 2019 Decided: April 9, 2019
    For Appellant: Guy Alsentzer, Upper Missouri Waterkeeper, Bozeman, Montana
    For Appellee: William W. Mercer, Brianne McClafferty, Holland & Hart LLP, Billings, Montana (for City of Billings), Kurt R. Moser, Montana Department of Environmental Quality, Helena, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Plaintiff Upper Missouri Waterkeeper (Waterkeeper) appeals the order of the Eighteenth District Court, Gallatin County, denying Waterkeeper's Motion for Summary Judgment, granting the Cross-Motions for Summary Judgment of the Defendant Montana Department of Environmental Quality (DEQ) and Intervenor-Defendant the City of Billings, and affirming DEQ's decision to issue Montana Pollutant Discharge Elimination System (MPDES) Permit No. MTR040000 (the General Permit). We affirm.

¶2 We restate the issues on appeal as follows:

1. Whether the General Permit complies with public participation requirements?
2. Whether DEQ's decision to incorporate construction and post-construction storm water pollution controls into the General Permit was unlawful, arbitrary, or capricious?
3. Whether DEQ incorporating Total Maximum Daily Loads (TMDLs) into the General Permit was unlawful, arbitrary, or capricious?
4. Whether DEQ's decision to incorporate pollution monitoring requirements into the General Permit was unlawful, arbitrary, or capricious?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 1972, Congress enacted the modern version of the Federal Water Pollution Control Act, more commonly known as the Clean Water Act (CWA). The CWA's stated objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." The CWA set a goal of eliminating the discharge of pollutants into the navigable waters of the United States by 1985. To make progress towards this goal, Congress established a permitting system known as the National Pollution Discharge Elimination System (NPDES), which is administered by the United States Environmental Protection Agency (EPA).

¶4 The CWA allows for states to administer their own permits, and in 1974 the State of Montana and EPA signed a Memorandum of Agreement (MOA), which transferred the responsibility of issuing NPDES permits within Montana to DEQ. DEQ issues permits under the Montana Pollution Discharge Elimination System (MPDES). EPA continues to review, comment on, and/or make recommendations to DEQ regarding proposed permits. Under the MOA, if EPA does not object to a proposed permit, its non-objection "shall be considered as concurrence" in the issuing of the permit.

¶5 Because pollution into the nation's waters was not eliminated by 1985, the CWA has been amended in the years since. Following the enactment of the CWA, EPA discovered that a driver of pollution is discharges from municipal separate storm sewer systems (MS4s). The CWA was then amended by Congress in 1987 to add provisions addressing storm water discharges from certain municipalities-and set deadlines for permits regarding MS4s serving populations of 250,000 or more (large MS4s) and those serving populations of more than 100,000 but less than 250,000 (medium MS4s). The 1987 CWA amendments further required EPA, "in consultation with State and local officials," to study and regulate additional storm water discharges as needed to protect water quality. This led to the eventual regulation of certain MS4 systems serving populations of less than 100,000 (small MS4s). MS4 discharge permits may be issued either as an individual permit to a single MS4 or as a general permit to a group of MS4s. Montana has no large or medium MS4s.

¶6 As part of its further regulation of storm water discharges, EPA issued its "Phase I Rule" in 1990, which addressed large and medium MS4s. Nine years later, in 1999, EPA issued its "Phase II Rule" which addressed small MS4s. While all MS4 discharge permits must include terms and conditions to "reduce the discharge of pollutants" from the MS4 to the maximum extent practicable (MEP), small MS4s were able to choose to either be regulated as if they were large or medium MS4s under 40 C.F.R. § 122.26(d) or to include six minimum control measures (MCM) within their storm water management programs (SWMP). The six MCMs constitute narrative effluent limitations requiring the implementation of best management practices (BMPs), which EPA determined to be "generally the most appropriate form of effluent limitations" regarding small MS4s. The six MCMs are: (1) public education and outreach on storm water impacts; (2) public involvement/participation; (3) illicit discharge detection and elimination; (4) construction site storm water runoff control; (5) post-construction storm water management in new development and redevelopment; and (6) pollution prevention/good housekeeping for municipal operations. EPA further determined that implementation of BMPs consistent with provisions of the SWMP constituted compliance with the standard of reducing pollutants to the "maximum extent practicable." EPA "intentionally" did not provide "a precise definition of MEP to allow maximum flexibility in MS4 permitting."

¶7 DEQ is responsible for administering the provisions of the Montana Water Quality Act (MWQA), one of which is the issuance of MPDES permits. In 2003, the Montana Board of Environmental Review (BER) first adopted rules for the small MS4 MPDES permit program to comply with the requirements of the CWA. In accordance with these rules, small MS4s in Montana include the cities of Billings, Missoula, Great Falls, Bozeman, Butte, Helena, and Kalispell (collectively MS4 cities), portions of Yellowstone, Missoula, and Cascade counties, as well as Malmstrom Air Force Base, Montana State University, and the University of Montana.

¶8 DEQ issued the first five-year MS4 general permit in 2005 and the second in 2010. In 2014, DEQ began working on the third MS4 general permit and convened meetings involving stakeholders, including the MS4 cities. The MS4 cities, as a result of these meetings, proposed that DEQ extend the 2010 general permit for a period of two years while the MS4 cities, DEQ, and other stakeholders formed a storm water working group to develop a new MS4 general permit. DEQ agreed to this arrangement, and issued an MS4 general permit effective from January 1, 2015, to December 31, 2016.

¶9 Beginning in January 2015, the storm water working group convened monthly meetings. The storm water working group included the MS4 cities, DEQ, EPA, representatives from the three MS4 counties, Montana State University, Malmstrom Air Force Base, Waterkeeper, Montana Environmental Information Center (MEIC), and the Clark Fork Coalition. The storm water working group met monthly until April 2016 as DEQ developed the proposed 2017 general permit. On September 19, 2016, DEQ issued a public notice stating its intention to hold a public hearing on the issuance of the 2017 draft permit, and provided information on obtaining a copy of the draft permit, accompanying fact sheet and environmental assessment, and how the public could provide comments regarding the draft permit. DEQ received written public comments from EPA, Waterkeeper, Department of the Air Force, and the MS4 cities of Billings, Great Falls, Kalispell, Helena, Missoula, Butte-Silver Bow, and Bozeman.

¶10 DEQ held a public hearing on the draft permit on October 21, 2016. Testimony was presented by Waterkeeper, the city of Helena, and the city of Bozeman at the hearing. Waterkeeper testified regarding the changes from the 2015 general permit to the draft permit, stating that the draft permit is "a really good permit," while also noting some areas of the permit needed "tweaks." In written comments, EPA stated that it reviewed the draft permit and provided comments that were "minor in nature," and further "commend[ed] the state on this Permit." EPA did not object to the issuance of the General Permit under its permit review authority.

¶11 On November 30, 2016, DEQ issued the General Permit. EPA did not object to its issuance under its permit review authority, and the General Permit went into effect on January 1, 2017. On December 30, 2016, Waterkeeper sued DEQ in the District Court, alleging that the General Permit was deficient in several respects. The City of Billings, one of the MS4 cities regulated by the General Permit, intervened in the case. Waterkeeper then filed a motion for summary judgment, while DEQ and the City of Billings each filed cross-motions for summary judgment. The District Court held a hearing on the motions on March 13, 2018, at which all parties agreed that no material facts were in dispute and the matter could be determined based upon the arguments of the parties and the administrative record. On June 14, 2018, the District Court denied Waterkeeper's motion, granted DEQ's and the City of Billings' cross-motions, and affirmed DEQ's issuance of the General Permit. Waterkeeper appeals.

STANDARD OF REVIEW

¶12 We review a district court's grant of summary judgment de novo, and apply the same criteria applied by the district court under M. R. Civ. P. 56(c). N. Cheyenne Tribe v. Mont. Dep't of Envtl. Quality , 2010 MT 111, ¶ 18, 356 Mont. 296, 234 P.3d 51.

¶13 This Court affords deference to an agency's legal determination when that agency is interpreting a statute that it has been authorized by the legislature to administer. Lewis v. B & B Pawnbrokers, Inc. , 1998 MT 302, ¶ 43, 292 Mont. 82, 968 P.2d 1145. We defer to an agency's interpretation of its rule unless it is plainly inconsistent with the spirit of the rule; however, neither this Court nor the district court must defer to an incorrect agency decision. Clark Fork Coal. v. Mont. Dep't of Envtl. Quality , 2008 MT 407, ¶ 20, 347 Mont. 197, 197 P.3d 482.

¶14 We review an informal agency decision-one not classified as a contested case under the Montana Administrative Procedure Act-to determine whether the decision was arbitrary, capricious, unlawful, or not supported by substantial evidence. Clark Fork Coal. , ¶ 21. Our review under this standard focuses on whether the agency action is (1) unlawful, or (2) arbitrary and capricious. North Fork Pres. Ass'n v. Dep't of State Lands , 238 Mont. 451, 459, 778 P.2d 862, 867 (1989).

DISCUSSION

¶15 1. Whether the General Permit complies with public participation requirements?

¶16 Waterkeeper, a public-benefit non-profit corporation dedicated to protecting the water quality of Montana's Upper Missouri River Basin, argues that the General Permit does not comply with mandatory public participation requirements pursuant to both federal and state law because the General Permit contains BMP and TMDL requirements that are chosen by individual MS4s under the General Permit after the General Permit has already been issued. The District Court found that the permit did not violate public participation requirements because the General Permit, and its included BMPs and TMDLs, were already subject to public review and comment. The District Court further noted that the General Permit contains language requiring additional public outreach, education, participation, and review. We agree with the District Court that the General Permit does not violate public participation requirements.

¶17 After two MS4 general permit iterations, DEQ began development on the third. Concerned and motivated by the desire to develop a quality, modern permit, the MS4 cities requested, received, and spearheaded a storm water working group to develop the third general permit. The previous general permit was then extended for a two-year period by DEQ while the storm water working group went to work. The General Permit was developed over a nearly two-year period with input from DEQ, Montana MS4s, environmental groups (including Waterkeeper), and the general public. At the public hearing on the permit prior to its issuance, Waterkeeper even testified to the General Permit being "a really good permit." The District Court correctly noted that the General Permit had significant public participation during its development and before it was ultimately issued by DEQ.

¶18 Waterkeeper now takes issue with the General Permit's inclusion of a menu of possible BMPs for individual MS4s to choose from when implementing their SWMP. Because the final BMPs are not chosen until after the issuance of the General Permit, Waterkeeper argues that when a BMP is ultimately chosen by an MS4, that constitutes a change that adds significant new conditions to the MS4 permit. This argument is unconvincing. The BMPs listed in the General Permit were developed with two years of input from numerous stakeholders, including the general public. The MS4s regulated by the General Permit are essentially being tasked with choosing from an already-approved menu. Much like the experience of attending a wedding reception does not become a fundamentally different activity for a guest once he or she chooses between the given dinner options of chicken or fish, an MS4 choosing which preapproved BMPs to implement in their SWMP does not alter the essential terms of the General Permit. The guest is still attending a wedding reception regardless of his or her dinner choice; and Montana's MS4s are still having their storm water discharges regulated pursuant to the existing terms of the General Permit regardless of which combination of already-specified BMPs are ultimately used. EPA's small MS4 regulations were developed to allow for flexibility in permitting. See National Pollutant Discharge Elimination System--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722, 68,754 (Dec. 8, 1999). It is not unlawful, arbitrary, or capricious for DEQ to use this intentional flexibility when issuing MPDES permits.

¶19 Although this is a matter of first impression in Montana, Maryland's highest court recently faced a nearly identical situation of an MS4 choosing from a specified menu of BMPs in an NPDES general permit and a local water group objecting based on public participation requirements. In Md. Dep't of the Env't v. Anacostia Riverkeeper , 447 Md. 88, 134 A.3d 892 (2016), the Maryland Court of Appeals addressed an NPDES general permit affecting several counties in Maryland. Local water groups sued alleging, among other things, that the permit violated public participation requirements because MS4 permittees would be choosing BMPs after the permit was issued. The water groups cited to Waterkeeper All., Inc. v. EPA , 399 F.3d 486 (2d Cir. 2005), a case in which the Second Circuit addressed the regulation of water pollutants in runoff from concentrated animal feeding operations (CAFOs). The CAFOs at issue in the case were required to develop nutrient management plans, which the Second Circuit held were effluent limits because the CAFOs were required to set waste application rates in the plans. Waterkeeper All. , 399 F.3d at 502. The Second Circuit therefore found that EPA was "arbitrary and capricious" by "failing to require that the terms of the nutrient management plans be included in NPDES permits." Waterkeeper All. , 399 F.3d at 502-03.

¶20 The Maryland Court of Appeals distinguished Waterkeeper All. and determined the practice of general permits allowing MS4s to select from BMPs does not constitute a new effluent limitation requiring another period of public participation. The Maryland Court found that "the most critical element of the restoration plans-the BMPs-is already included in the Permits because the Permits incorporate the Manual and Guidance, which set forth those practices." Md. Dep't of the Env't , 134 A.3d at 942. The Maryland Court upheld the permits because "the Counties must submit restoration plans derived from specified best management practices[.]" Md. Dep't of the Env't , 134 A.3d at 942 (emphasis in original). The situation at issue with the General Permit in this case is nearly identical to that of Md. Dep't of the Env't , and we reach the same conclusion with respect to public participation requirements. The act of an MS4 choosing between specified BMPs in an MPDES general permit does not constitute a new effluent limit requiring further public participation before the permit can take effect.

¶21 2. Whether DEQ's decision to incorporate construction and post-construction storm water pollution controls into the General Permit was unlawful, arbitrary, or capricious?

¶22 Waterkeeper argues that the General Permit's construction and post-construction storm water pollution controls are arbitrary and capricious because the standards set by DEQ for runoff control are both legally inadequate and unsupported by substantial evidence.

¶23 This court applies "a deferential standard of review to an agency's interpretation in matters of its expertise." Somont Oil Co. v. King , 2012 MT 207, ¶ 18, 366 Mont. 251, 286 P.3d 585. We have previously held that administrative interpretations are not binding on courts, but they are entitled to "respectful consideration." Mont. Power Co. v. Mont. PSC , 2001 MT 102, ¶ 25, 305 Mont. 260, 26 P.3d 91 (quoting Doe v. Colburg , 171 Mont. 97, 100, 555 P.2d 753, 754 (1976) ).

¶24 The six MCMs required to be included in an NPDES permit by EPA are: (1) public education and outreach on storm water impacts; (2) public involvement/participation; (3) illicit discharge detection and elimination; (4)

construction site storm water runoff control; (5) post-construction storm water management in new development and redevelopment; and (6) pollution prevention/good housekeeping for municipal operations. 40 C.F.R. § 122.34(b). Montana has adopted the same six MCMs essentially verbatim. See Admin. R. M. 17.30.1111(6) (2016).

¶25 "Permits for discharges from municipal storm sewers ... shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants." 33 U.S.C. § 1342(p)(3)(B)(iii). The General Permit requires that all MS4s regulate both construction and post-construction storm water runoff through the use of BMPs and MCMs. Waterkeeper alleges that these permit conditions fail to meet the "maximum extent practicable" standard required by the CWA.

¶26 EPA recently modified the regulations for NPDES MS4 permits, which became effective for all MS4 permits issued on or after January 9, 2017. See National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand Rule, 81 Fed. Reg. 89,320, 89,345 (Dec. 9, 2016). Prior to these changes, federal regulations noted that "narrative effluent limitations requiring implementation of best management practices (BMPs) are generally the most appropriate form of effluent limitations when designed to satisfy technology requirements (including reductions of pollutants to the maximum extent practicable) and to protect water quality." 40 C.F.R. § 122.34(a) (2016). Permits issued under the new regulations may include "numeric ... requirements." 40 C.F.R. § 122.34(a).

¶27 The General Permit in this matter was issued on November 30, 2016, and became effective on January 1, 2017. EPA did not require permits issued prior to January 9, 2017, to comply with the new requirements of the rule. National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand Rule, 81 Fed. Reg. at 89,345 -46. When the permit was issued, EPA regulations specifically stated that narrative effluent limitations were the most appropriate form of effluent limitations. DEQ issued the General Permit consistent with these regulations, as it contains numerous BMPs for each MCM to allow an MS4 to meet its water quality goals. The Court also notes that EPA "intentionally [did] not provide[ ] a precise definition of MEP to allow maximum flexibility in MS4 permitting." National Pollutant Discharge Elimination System--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. at 68,754. "Implementation of best management practices consistent with the provisions of the storm water management program required pursuant to this section and the provisions of the permit required pursuant to § 122.33 constitutes compliance with the standard of reducing pollutants to the 'maximum extent practicable.' " 40 C.F.R. § 122.34(a) (2016). Following the guidance of the EPA, Montana has similarly determined that

narrative effluent limitations requiring implementation of BMPs are the most appropriate form of effluent limitations when designed to satisfy technology requirements (including reductions of pollutants to the maximum extent practicable) and to protect water quality. Implementation of BMPs consistent with the provisions of the storm water management program required pursuant to this rule and the provisions of the permit shall constitute compliance with the standard of reducing pollutants to the maximum extent practicable.

Admin. R. M. 17.30.1111(5)(a) (2016).

¶28 The General Permit contains a list of BMPs applicable to each MCM. For the construction site storm water management MCM, the list of BMPs is nearly seven pages long. The post-construction site storm water management in new and redevelopment MCM contains a list of applicable BMPs nearly eight pages long. Under the EPA and DEQ regulations in place at the time, implementation of these BMPs "constitute[s] compliance" with the MEP standard.

¶29 Waterkeeper specifically alleges that the post-construction storm water management requirements of the General Permit are deficient in that they require that all MS4s implement post-construction storm water management "controls that are designed to infiltrate, evapotranspire, and/or capture for reuse the post-construction runoff generated from the first 0.5 inches of rainfall from a 24-hour storm preceded by 48 hours of no measurable precipitation." This specific 0.5-inch performance standard is unchanged from the 2015 general permit, and DEQ notes that it represents the 90th percentile rainfall frequency event. Waterkeeper contends that this standard is arbitrary and capricious because the General Permit's rule requiring capture of only the 90th percentile is not fully supported by substantial evidence, and therefore does not meet the MEP standard. Waterkeeper notes that a general permit issued in eastern Washington requires 100% retention of post-construction storm water runoff and faults DEQ for not sufficiently explaining why this standard would not be practicable in Montana.

¶30 The record reflects that DEQ did explain its decision in setting the numerical standard at issue here. More importantly, however, the General Permit includes several new BMP requirements to allow MS4s to meet the MEP standard. The numerical requirement is only one portion of the MCM, and DEQ has adequately explained its reasoning for setting this standard. Because we defer to an agency's determination in areas of its expertise, it was not arbitrary and capricious for DEQ to use its chosen post-construction storm water runoff standard in the General Permit. Somont Oil Co. , ¶ 18. The numerical runoff control standard has not changed from the 2015 general permit; however, the narrative standards have improved in the General Permit. Pursuant to both federal and state regulations, and mindful of the deference afforded to DEQ, these narrative effluent limitations constitute compliance with the MEP standard.

¶31 Waterkeeper also faults the General Permit's construction site storm water management MCM for incorporating the minimum standards from another permit-the Non-Numeric Technology-Based Effluent Limits in the most current Montana DEQ General Permit for Storm Water Discharges Associated with Construction Activity (Construction Storm Water Permit)-into the General Permit here. Waterkeeper alleges that this decision is unsupported because the MEP standard may require more stringent standards and controls than those found in the Construction Storm Water Permit. DEQ explained that this overlap was done to ensure regulatory consistency, because numerous construction sites are located within the boundaries of the MS4s regulated by the General Permit. The record supports that DEQ's decision to incorporate the standards of the Construction Storm Water Permit into this portion of the General Permit was not arbitrary and capricious. DEQ provided reasons for why the decision was made; the record supports the conclusion that these incorporated standards, when combined with other BMPs in the General Permit, meet the MEP standard for narrative effluent limits; and the General Permit improves on the ordinances required by the 2015 general permit. Once again, we defer to DEQ's decision because it considered relevant factors regarding this MCM and there has not been "a clear error of judgment." North Fork Pres. Ass'n , 238 Mont. at 465, 778 P.2d at 871 (citation omitted).

¶32 3. Whether DEQ incorporating TMDLs into the General Permit was unlawful, arbitrary, or capricious?

¶33 Waterkeeper argues that the General Permit violates the CWA by not including water quality based effluent limitations (WQBELs) necessary to meet water quality standards for impaired waterbodies, but instead incorporates TMDL waste load allocations (WLAs). The General Permit incorporates applicable TMDLs for certain MS4s's impaired waterways. Waterkeeper alleges that this TMDL WLA incorporation is a violation of the CWA because the General Permit neither establishes baseline levels of pollution nor requires measurable pollutant reductions.

¶34 When developing water quality-based effluent limits for a permit, DEQ is required to ensure that those effluent limits "are consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by the State and approved by EPA pursuant to 40 CFR 130.7." 40 C.F.R. § 122.44(d)(1)(vii)(B). The plain language of EPA's regulations requires that TMDL-based limits must be "consistent" with available WLAs, they do not require that the limitations "be identical to any of the WLAs that may be provided in a TMDL." In re City of Moscow , 10 E.A.D. 135, 148 (2001) (emphasis in original). We have previously noted EPA's stated goal of flexibility in small MS4 permitting. Opinion, ¶¶ 18, 27; National Pollutant Discharge Elimination System--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. at 68,754. Due to this flexibility, DEQ can use its discretion when determining the planning goals of a TMDL and its associated WLA for a regulated MS4. The District Court found that Waterkeeper's issue is not with the General Permit but with the language of the TMDLs themselves. We agree.

¶35 On appeal, Waterkeeper argues that the District Court misunderstood its position, and it is simply arguing that DEQ abused its discretion by not including enforceable and measurable pollutant reduction requirements tied to applicable WLAs. The General Permit requires MS4s to apply BMPs which address impaired waterbodies, report their progress, show their upcoming plans, implement a monitoring program, and provide a mechanism for public review. DEQ's interpretation of its rule regarding TMDLs is not unlawful, arbitrary, capricious, or unsupported by substantial evidence because EPA first approved the TMDLs in a separate process and then reviewed and concurred in the issuance of the General Permit which contained those TMDLs. Clark Fork Coal. , ¶ 20. As the District Court correctly noted in its summary judgment order, "water quality planning goals will be met by continuing to adhere to the Permit's BMP requirements to reduce pollutant loading."

¶36 4. Whether DEQ's decision to incorporate pollution monitoring requirements into the General Permit was unlawful, arbitrary, or capricious?

¶37 Finally, Waterkeeper alleges that the General Permit violates federal monitoring regulations. Specifically, Waterkeeper claims that the General Permit both fails to provide for monitoring that is representative of the MS4 system and provide for monitoring that is sufficient to ensure compliance with the General Permit's terms.

¶38 DEQ has a statutorily broad authority to require monitoring of discharges into state waters. Section 75-5-602, MCA. In addition, DEQ "may require monitoring of storm water discharges at a facility or activity covered under an MPDES general permit." Admin. R. M.

17.30.1351(2) (2016). Notably, neither EPA's Phase II Rule for small MS4s nor DEQ's own small MS4 permitting rules require monitoring, though EPA does encourage monitoring. 40 C.F.R. § 122.34 (2016) ; Admin R. M. 17.30.1111 (2016).

¶39 DEQ, in its discretion, required all MS4 permittees to monitor storm water discharges in this iteration of the General Permit. The General Permit provides MS4s a choice of different monitoring options, and increases the number of required samples from the 2015 version of the general permit. DEQ used its discretion to require representative monitoring, which Waterkeeper objects to because it believes this monitoring scheme is not truly representative of the vast MS4 districts covered by the General Permit.

¶40 As discussed above, this Court will defer to an agency acting within its area of expertise. Somont Oil Co. , ¶ 18. "We cannot substitute our judgment for that of the Department by determining whether its decision was correct." North Fork Pres. Ass'n , 238 Mont. at 465, 778 P.2d at 871 (internal quotation omitted). The pollution monitoring requirements at issue here are squarely within DEQ's area of expertise, are not required by either federal or state regulations, and are supported by substantial evidence of their improvements from the last general permit.

CONCLUSION

¶41 We remain mindful of the fact that Montanans have a constitutional right to a clean and healthful environment. Mont. Const. art. II, § 3. The General Permit at issue in this case represents a clear improvement from its previous iteration, a fact Waterkeeper itself acknowledged when testifying regarding the General Permit. This Court does not have the authority to review the General Permit line by line to subjectively determine whether each decision made by DEQ in this matter is the "correct" one, but under the applicable standard of review DEQ's decisions have not been unlawful, arbitrary, or capricious. North Fork Pres. Ass'n , 238 Mont. at 465, 778 P.2d at 871. The General Permit is not the end of the responsibility for DEQ and the MS4s to improve Montana's water quality, but simply another step along the way. This General Permit is a step in the right direction.

¶42 The District Court correctly denied Waterkeeper's Motion for Summary Judgment, granted DEQ and the City of Billings' Cross-Motions for Summary Judgment, and affirmed DEQ's issuance of the General Permit.

¶43 Affirmed.

We concur:

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

LAURIE McKINNON, J.

DIRK M. SANDEFUR, J.

      At the time known as the State of Montana Department of Health and Environmental Sciences.

      40 C.F.R. § 122.34 was amended in 2017, removing this option. The General Permit at issue in this case was issued prior to the 2017 amendment.

      The 2017 amendment to 40 C.F.R. § 122.34 added numerical effluent limitations to this section, along with a requirement that terms and conditions under small MS4 permits "must be expressed in clear, specific, and measurable terms."


text:
    STATE of Montana, Plaintiff and Appellee, v. Justin Dallas MARKS, Defendant and Appellant.
    DA 17-0686
    Supreme Court of Montana.
    Submitted on Briefs: February 20, 2019 Decided: April 2, 2019
    Affirmed.


text:
    STATE of Montana, Plaintiff and Appellee, v. James Cotter THARIN, Jr., Defendant and Appellant.
    DA 17-0737
    Supreme Court of Montana.
    Submitted on Briefs: January 16, 2019 Decided: April 2, 2019
    Affirmed.


text:
    In the MATTER OF: T.N. and O.N., Youths in Need of Care.
    DA 18-0321
    Supreme Court of Montana.
    Submitted on Briefs: March 6, 2019 Decided: April 2, 2019
    Affirm.


text:
    STATE of Montana, Plaintiff and Appellee, v. Christon Dorothy GRMOLJEZ, Defendant and Appellant.
    DA 18-0290
    Supreme Court of Montana.
    Submitted on Briefs: February 6, 2019 Decided: April 9, 2019
    For Appellant: Dwight J. Schulte, Schulte Law Firm, P.C., Missoula, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana, Ellen Donohue, Mineral County Attorney, Superior, Montana
   Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Christon Dorothy Grmoljez appeals from an order of the Fourth Judicial District Court, Mineral County, denying her motion to suppress. We affirm.

¶2 We restate the issue on appeal as follows:

Whether the District Court erred when it denied Grmoljez's motion to suppress.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 On May 21, 2017, Trooper Stephen Gaston (Trooper Gaston) was patrolling Highway 135, a two-lane highway that runs between St. Regis, Montana, and Highway 200 at Ravalli, Montana-an area he has patrolled for nearly nineteen years. Between 9:30 and 10:00 a.m., Trooper Gaston was travelling southbound toward St. Regis when he noticed a vehicle parked in a gravel turnout. Although the vehicle was safely off the road, it was parked partially in the grassy area beyond the gravel. Trooper Gaston reasoned that the vehicle's location was "consistent with someone who's lost power or run out of fuel, and [had] been unable to go ahead and hit the brakes earlier in the gravel pit." Trooper Gaston knew that this particular turnout did not have access to hiking trails and it was not a scenic turnout "where people stopped to go enjoy the views." As Trooper Gaston drove past the vehicle, he noted that the vehicle had two occupants, and the female driver looked at him "without any emotions." Trooper Gaston observed no obvious signs of mechanical distress with the vehicle.

¶4 Concerned about whether "there was a mechanical issue [or] if they had run out fuel," Trooper Gaston traveled about a half-mile to a scenic outlook, turned around, and returned to the vehicle. Trooper Gaston pulled in behind the vehicle with his rear deck lights on and informed dispatch he was approaching an "occupied vehicle that's possibly disabled." Trooper Gaston exited his patrol vehicle, approached the driver's side of the vehicle, and motioned for the driver to roll down her window. When the driver rolled the window down Trooper Gaston asked, "Everything OK?" The driver, later identified as Grmoljez, replied, "Yeah ... um ... had too many last night, didn't want to drive, so, pulled over." Trooper Gaston testified that as he spoke with Grmoljez he detected an odor of alcohol. At this point, Trooper Gaston testified, the interaction ripened into a DUI investigation. Trooper Gaston asked Grmoljez to step out of the vehicle, conducted a field sobriety test, and Grmoljez agreed to provide a breath sample. The breath sample indicated a blood alcohol concentration of 0.154, above the legal limit in Montana.

¶5 The State charged Grmoljez with DUI per se in violation of § 61-8-406(1)(a), MCA. In Justice Court, Grmoljez filed a motion to suppress arguing the first prong of the community caretaker doctrine could not be met. When the Justice Court denied the motion, Grmoljez pleaded guilty pursuant to a plea agreement but retained her right to appeal the Justice Court's decision to the District Court. Grmoljez appealed to the District Court. An evidentiary hearing was held in which Trooper Gaston testified and the dashcam video capturing the interaction was admitted into evidence. The District Court denied the motion to suppress. Grmoljez now appeals.

STANDARD OF REVIEW

¶6 In reviewing a district court's ruling on a motion to suppress evidence or statements, we determine whether the court's underlying factual findings are clearly erroneous and whether the court correctly interpreted and applied the governing law. State v. Nelson, 2004 MT 13, ¶ 5, 319 Mont. 250, 84 P.3d 25. A trial court's findings are clearly erroneous if not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if this Court's review of the record leaves us with the firm conviction that a mistake has been made. State v. Clayton , 2002 MT 67, ¶ 8, 309 Mont. 215, 45 P.3d 30. We review cases that originate in justice court and are appealed to district court as if the appeal was originally filed in this Court. State v. Marcial , 2013 MT 242, ¶ 10, 371 Mont. 348, 308 P.3d 69.

DISCUSSION

¶7 Whether the District Court erred when it denied Grmoljez's motion to suppress.

¶8 Grmoljez asserts that her Fourth Amendment right to be free from unreasonable searches and seizures was violated when Trooper Gaston, after noticing her vehicle parked on the side of the road, stopped to see if she needed assistance. We disagree.

¶9 The Fourth Amendment of the United States Constitution, and Article II, Section 11, of the Montana Constitution, similarly proscribe unreasonable searches and seizures. U.S. Const. amend. IV ; Mont. Const. art. II, § 11. Absent a few carefully drawn exceptions, warrantless seizures of persons are per se unreasonable under the Fourth Amendment and Article II, Section 11, of the Montana Constitution. City of Missoula v. Kroschel , 2018 MT 142, ¶ 10, 391 Mont. 457, 419 P.3d 1208 ; Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception, the community caretaker doctrine, is "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Lovegren , 2002 MT 153, ¶ 17, 310 Mont. 358, 51 P.3d 471. Instead, the doctrine allows peace officers to take appropriate action when they believe a citizen is in peril. Community caretaker functions vary, but often include assisting motorists who are stranded, involved in accidents, or otherwise in need of help. Marcial , ¶ 13. In Lovegren , this Court adopted a three-part test to ensure application of the community caretaker doctrine comports with constitutional protections and is not used merely as a pretext for illegal searches and seizures. State v. Spaulding , 2011 MT 204, ¶ 24, 361 Mont. 445, 259 P.3d 793. First, as long as there are objective, specific, and articulable facts from which an experienced officer would suspect that a citizen is in need of help, that officer has the right to stop and investigate. Second, if the citizen is in need of aid, the officer may take appropriate action to render assistance or mitigate the peril. Third, once the officer is assured that the citizen is no longer in peril, or that the peril has been mitigated, any action beyond that constitutes a seizure implicating the Fourth Amendment and Article II, Section 11 of the Montana Constitution. Lovegren , ¶ 25.

¶10 Grmoljez argues the first prong of the Lovegren test cannot be met because Trooper Gaston did not rely on objective, specific, and articulable facts to support his suspicion that Grmoljez was in peril. Grmoljez reasons, "a car legally parked in a safe turnout, during the spring with no adverse weather, at a normal time of day, with visual confirmation that the driver is not in distress does not support a community caretaker stop." This oversimplification of the interaction undermines the doctrine's express grant allowing experienced officers to draw informed conclusions. Trooper Gaston drew from his nineteen years of experience patrolling the area to conclude that Grmoljez was not stopped to enjoy the view-there were scenic lookouts close by and her vehicle was parked facing the hill; she was not stopped to hike-the turnout offered no access to hiking trails; and the positioning of her car was consistent with someone who had suddenly lost power or ran out of gas. Based on these objective, specific, and articulable facts, it was reasonable for Trooper Gaston to conclude that Grmoljez needed assistance.

¶11 Grmoljez asserts that when she looked at Trooper Gaston "without any emotions" he received visual confirmation that she was not in distress, thus obviating any need for him to conduct a welfare check. We rejected this argument in Spaulding . In that case, the defendant urged that because she did not turn on her emergency flashers, flag down the officer, or exhibit an "emotionally excited appearance" the welfare stop was unjustified. Spaulding , ¶ 28. This Court explained: "the absence of such circumstances, while relevant, does not negate the objective, specific, and articulable facts which did exist ...." Spaulding , ¶ 28. This holding similarly subverts Grmoljez's argument that because the welfare check occurred on a warm day during daylight hours, the District Court's decision was inconsistent with other cases applying the doctrine. Indeed, the officers in both Spaulding and Nelson relied partially on freezing temperatures and early morning hours to support their belief that the defendants needed help. Spaulding , ¶ 25 ; Nelson , ¶ 8. However, "[e]ach community caretaker case turns on its discrete facts. That a particular case is not, factually, a cookie-cutter copy of another simply proves this point." Spaulding , ¶ 29. In determining whether the first prong of the Lovegren test was met, the District Court correctly relied on the objective, specific, and articulable facts supporting Trooper Gaston's conclusions instead of focusing on the absence of facts, such as inclement weather or darkness. Although there were no definitive signs of mechanical distress, the encounter occurred in the daylight, and the temperatures were above freezing, Trooper Gaston provided objective, specific, and articulable facts supporting his concern that Grmoljez could have been in need of help.

¶12 The interaction between Grmoljez and Trooper Gaston conforms with this Court's warning that "the community caretaker doctrine cannot be used as a pretext for an illegal search and seizure, and the stop must actually involve a 'welfare' check." Marcial , ¶ 13. Trooper Gaston's testimony, along with the dashcam footage, establish that his intent in approaching the vehicle was simply to determine if Grmoljez needed assistance. Specifically, his observations leading up to the encounter only support his belief that Grmoljez needed help. Absent from Trooper Gaston's testimony were any observations of possible criminal activity, thus negating the suggestion that the stop was pretextual. Further, Trooper Gaston's overall manner as he approached Grmoljez was consistent with a welfare check. He pulled behind Grmoljez's vehicle, activated only his rear deck lights, and informed dispatch he was approaching an "occupied vehicle that's possibly disabled." Instead of immediately demanding Grmoljez's identification, Trooper Gaston asked, "Everything OK?" Grmoljez has failed to present evidence demonstrating the encounter did not actually involve a welfare check. Beyond that, this Court has continuously recognized the community caretaker role as an affirmative duty of peace officers. State v. Seaman , 2005 MT 307, ¶ 15, 329 Mont. 429, 124 P.3d 1137 ; Marcial , ¶ 13 ; Lovegren , ¶ 26. Under these circumstances, it may have been a dereliction of duty for Trooper Gaston not to stop and investigate an uncertain situation involving a motorist possibly in need of help. Spaulding , ¶ 25.

¶13 The District Court did not err when it denied Grmoljez's motion to suppress. While the contact began as a welfare check, it shifted to a DUI investigation only after additional information became available to Trooper Gaston. When Trooper Gaston learned that Grmoljez had been drinking heavily the night before and detected the smell of alcohol his focus switched from Grmoljez's welfare to a criminal investigation supported by particularized suspicion. Marcial , ¶ 8.

CONCLUSION

¶14 The welfare check meets the first prong of the Lovegren test and, for this reason, the District Court properly denied Grmoljez's motion to suppress.

¶15 Affirmed.

We Concur:

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.


text:
    Shannon MILLER, Plaintiff and Appellee, v. Tim KLEPPEN and Raelene Kleppen, Defendants and Appellants.
    DA 18-0575
    Supreme Court of Montana.
    Submitted on Briefs: February 27, 2019 Decided: April 9, 2019
    For Appellants: Wayne Jennings, Jennings Law Office, P.C., Bozeman, Montana
    For Appellee: Ryan K. Jackson, Jackson Law, P.C., Bozeman, Montana
   Justice Jim Rice delivered the Opinion of the Court.

¶1 Appellants Tim Kleppen and Raelene Kleppen (Kleppens) appeal the order entered by the Eighteenth Judicial District Court, Gallatin County, after trial, granting specific performance of a contract to Shannon Miller (Miller). We affirm, addressing the following issues:

1. Did the District Court err by concluding Miller's breach of contract claim was not barred by the statute of limitation?
2. Did the District Court err by determining Miller was entitled to specific performance of the contract?
3. Did the District Court err by dismissing Kleppens' trespass claim?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 This case concerns a boundary realignment agreement between two neighboring property owners in Gallatin County. Miller is the owner of Tract 241 of the Rainbow Subdivision of Bozeman Hot Springs, which she purchased and has lived on since 1989. Miller bought and owned the tract jointly with her husband, William, until his death in 2008. Kleppens are the owners of Tract 242 of the Subdivision, which they purchased pursuant to a contract for deed and obtained record title to in 2000.

¶3 In July 1999, Kleppens initiated an action against Millers in Gallatin County Justice Court, alleging Millers had erected improvements to their tract that extended onto Kleppens' tract. In November 1999, after participating in mediation through the Justice Court, the parties entered into a settlement, first memorialized by a hand-written agreement and diagram, wherein they agreed to a boundary realignment of their common boundary line between Tracts 241 and 242 by exchanging equal amounts of property. The diagram depicted the intended boundary realignment and notes about the property. As the District Court found, the handwritten agreement contemplated a formal Stipulation, which was typed and then signed by the parties on December 1, 1999. The Stipulation provided the following description of the revised property line intended by the parties, referring to the handwritten diagram:

From Point A, as set forth on the agreed upon diagram, the new property line will head southernly to a distance eight feet to the direct south of the furthest southernly point of Miller mobile home, hence west to a point directly north of Point B, hence directly north to Point B. The area encompassed by the new property line as it traverses Kleppen's Lot will be computed. The new property line will then traverse Miller's lot by beginning at Point A, heading northernly for a distance, hence easternly a distance until it intersects the easternly boundary line of Miller's Lot. The amount the new property line will traverse Miller's Lot will be determined by adjusting the lines so that the same amount of acreage taken from the Kleppen Lot will be taken from the Miller Lot.

¶4 To accomplish the boundary realignment, the Stipulation provided that the parties would: (1) obtain a mutually acceptable surveyor to complete a property line readjustment to be filed with the Gallatin County Clerk and Recorder, with costs to be split equally between the parties; (2) construct a fence along the new boundary realignment on or before June 15, 2000, with costs to be split equally between the parties and "Miller" performing the labor at no cost to Kleppens; (3) remove Millers' basketball hoop from Kleppens' property, to be completed by Millers; and (4) address bushes currently on the property line. The Stipulation provided that "[w]hen the fence construction is complete the attorneys for both parties will file a motion with this Court for an Order of Dismissal with prejudice."

¶5 Following execution of the Stipulation, Millers removed the basketball hoop as required by the Stipulation. Over the years thereafter, Kleppens watered, mowed, and fertilized the property they were to gain under the Stipulation, and Millers mowed, sprayed weeds, and trimmed the trees on the portion they were to gain under the Stipulation. However, neither party retained a surveyor to complete the boundary realignment or purchased materials to complete the construction of the fence, and therefore, the boundary realignment was never recorded in Gallatin County, and the fence was not built.

¶6 The District Court found that, "[f]rom December 1, 1999 through May 7, 2016, neither party expressed or acted in a manner contrary to the ownership and boundary realignment terms of the Stipulation," and that "[n]either party acted in a manner that suggest[ed] they did not intend to complete the terms of the Stipulation."

¶7 On May 8, 2016, Kleppen approached Shannon Miller and asked her to remove her power pole, gas meter, pump house, and two trees from "his property"-property that was to be transferred to Miller under the Stipulation. Kleppens placed stakes and a string-line in the ground to mark the original boundary line, and cut down two trees in the area that was to be transferred to Miller. The District Court found these actions were "the first notification to Miller that the Kleppens no longer intended to abide by the terms of the Stipulation."

¶8 In June 2016, Miller filed this action in the Gallatin County District Court, seeking specific performance of the Stipulation. Kleppens counterclaimed in trespass, and sought removal of Miller's property improvements. The District Court conducted a bench trial and held in favor of Miller, reasoning that Kleppens did not challenge the validity of the Stipulation, and did not assert any defenses that would support rescinding the Stipulation; that both parties partially performed their agreement; that the statute of limitations for breach of contract did not begin to run until Miller first learned of Kleppens' intention to not comply with the Stipulation, on May 8, 2016, and that Miller could not have learned of the breach prior to that time. The District Court ruled Miller was entitled to specific performance and dismissed Kleppens' trespass claim. The District Court ordered the parties to complete a survey of the property within 90 days of the order, and to construct a fence within 90 days of completion of the survey.

¶9 Kleppens appeal.

STANDARD OF REVIEW

¶10 "In an action tried without a jury, we review the district court's findings of fact under the clearly erroneous standard. A district court's findings of fact are clearly erroneous if they are not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. We review a district court's conclusions of law de novo, determining whether the court's interpretation and application of the law is correct." Blazer v. Wall , 2008 MT 145, ¶ 22, 343 Mont. 173, 183 P.3d 84 (citations omitted). Statute of limitations present a question of law; accordingly, "[w]e review for correctness the district court's application of the statute of limitations." Wing v. State , 2007 MT 72, ¶ 9, 336 Mont. 423, 155 P.3d 1224 ; accord Gulf Ins. Co. v. Clark , 2001 MT 45, ¶ 13, 304 Mont. 264, 20 P.3d 780.

DISCUSSION

¶11 1. Did the District Court err by concluding Miller's breach of contract claim was not barred by the statute of limitation?

¶12 Kleppens argue the District Court erred by ruling Miller's breach of contract claim was not barred under § 27-2-202(1), MCA, which provides that an action for breach of a written contract must be brought within 8 years. Kleppens pose that Miller knew by June 15, 2000-the date provided in the Stipulation for completion of the fence upon the realigned boundary line-that the contract had not been completed, and, therefore, that a breach of contract had occurred. Thus, they contend a cause of action for breach then accrued.

¶13 The Stipulation was a written contract between the parties, and actions based thereon are governed by § 27-2-202, MCA. A period of limitation, such as the eight-year period here, begins to run "when the cause of action accrues."

Larson v. Undem , 246 Mont. 336, 340, 805 P.2d 1318, 1321 (1990) ; McWilliams v. Clem , 228 Mont. 297, 308, 743 P.2d 577, 584 (1987) ; accord Ming Da Situ v. Smole , 2013 MT 33, ¶ 22, 369 Mont. 1, 303 P.3d 747 ; Viers v. Webb , 76 Mont. 38, 42, 245 P. 257, 258 (1926) ; § 27-2-102(2), MCA. "Generally, 'a claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action.' " Ming Da Situ , ¶ 22 (quoting § 27-2-102(1)(a), MCA ). Additionally, "it has long been recognized that the statute of limitations runs from the time of the breach and not from the time of injury[.]" Kitchen Krafters v. Eastside Bank , 242 Mont. 155, 163, 789 P.2d 567, 571 (1990), overruled on other grounds by Busta v. Columbus Hosp. , 276 Mont. 342, 370, 916 P.2d 122, 139 (1996).

¶14 Kleppens' accrual argument is founded upon their position that the District Court's findings of fact regarding the parties' actions and intentions are clearly erroneous. They argue "no evidence" was presented that the parties embraced the new property allocations made by the Stipulation, "other than by supposedly mowing, watering, fertilizing and weeding," and that the "only act" carried out by the parties in furtherance of the Stipulation was removal of the basketball hoop by the Millers, which they characterize as "of little consequence." Therefore, they contend that "[f]or 16 ½ years the Kleppens believed that the Millers had no intention of moving forward with the stipulation[,]" and thus the eight-year period of limitation for a breach of contract action expired in 2008.

¶15 Kleppens' factual argument offered to support accrual of the breach of contract claim in 2000 is a broad substitution of their view of the evidence for the District Court's. In direct contrast, the District Court found there had been a 16-year period of acquiescence by the parties, in which they acted only in ways consistent with the terms of the Stipulation, including removal of the basketball hoop and maintenance of the properties they respectively were to gain, and thus partially performed the Stipulation. Even after the June 5, 2000, deadline passed, the parties continued to act in partial execution of the Stipulation. Moreover, the District Court found that neither party had acted in a manner that suggested they did not intend to complete what the District Court determined were the "mutual obligations" of the parties under the Stipulation, until Kleppens' actions on May 8, 2016. See Wicklund v. Sundheim , 2016 MT 62, ¶ 37, 383 Mont. 1, 367 P.3d 403 ("Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement" (citing Restatement (Second) of Contracts § 202(4) )). Given this record, the first actionable breach of the Stipulation occurred on that day. See State Farm Mut. Auto. Ins. Co. v. Freyer , 2013 MT 301, ¶ 27, 372 Mont. 191, 312 P.3d 403 (" 'a breach of contract is a failure, without legal excuse, to perform any promise that forms the whole or part of a contract' ") (quoting Richard A. Lord, Williston on Contracts vol. 23, § 63:1 at 434 (4th ed., West Group 2002)) (defining breach of contract). Therefore, the District Court correctly determined the cause of action accrued on May 8, 2016, and was timely prosecuted by Miller under § 27-2-202(1), MCA.

¶16 2. Did the District Court err by determining Miller was entitled to specific performance of the contract?

¶17 Kleppens argue the District Court erred by granting specific performance to Miller because the Stipulation, with the diagram, were not sufficiently clear to define the acts to be taken and, thus, to compel specific performance. They contend the precise boundary was not contained in the Stipulation, and that it constituted merely an "agreement to agree" to a boundary line that would be later determined.

¶18 It is well settled that "absolute certainty and completeness in every detail is not a prerequisite of specific performance, only reasonable certainty and completeness being required." Steen v. Rustad , 132 Mont. 96, 106, 313 P.2d 1014, 1020 (1957). Matters that are merely "subsidiary, collateral, or which go to the performance of the contract are not essential, and therefore need not be expressed in the informal agreement." Steen , 132 Mont. at 106, 313 P.2d at 1020 (citations omitted). In other contexts, we have explained "[a] property description is adequate if it contains sufficient information to permit the identification of the property to the exclusion of all others." Blazer , ¶ 70 ; accord McDonald v. Jones , 258 Mont. 211, 216, 852 P.2d 588, 591 (1993) ; Peterson v. Taylor , 226 Mont. 400, 405, 735 P.2d 1120, 1123 (1987).

¶19 As quoted above, the Stipulation provided a detailed "lay," or non-surveyor's, description of the new boundary that included points marked on the accompanying diagram, the direction of the new boundary lines, and their distances in feet. This language, along with the diagram itself, provided a very clear description of the small portions of property the parties were trading, as well as the new boundary line. The Stipulation was thus sufficient for purposes of specific performance, and was not merely an agreement to agree to a new boundary line in the future. ¶20 Further, as the District Court noted, because Miller's claim related to the transfer of real property, it was presumed that pecuniary compensation would not afford adequate relief. Section 27-1-419, MCA. And, because the actual damage caused by nonperformance of the Stipulation, including the difficulties in dealing with property issues related to the encroachment of Miller's improvements, would be difficult to ascertain, specific performance was appropriate. Section 27-1-411(3), MCA.

¶21 Kleppens argue Miller had obligations under the Stipulation that constituted conditions precedent, the nonfulfillment of which precluded specific performance. See Seifert v. Seifert , 173 Mont. 501, 505, 568 P.2d 155, 157 (1977). However, as the District Court determined, "the only possible action that could be considered a condition precedent was the removal of the basketball hoop. Miller completed this obligation. The remaining obligations were mutual obligations[,]" which neither party had completed. We agree that Miller did not have individual obligations under the Stipulation that rose to conditions precedent to its fulfillment, which were uncompleted.

¶22 Because this was a contract for the transfer of real property, which contained a sufficient description of the property, the District Court did not err by ordering its specific performance.

¶23 3. Did the District Court err by dismissing the Kleppens' trespass claim?

¶24 A civil trespass occurs when there is "(1) an intentional entry or holdover (2) by the defendant or a thing; (3) without consent or legal right." Davis v. Westphal , 2017 MT 276, ¶ 15, 389 Mont. 251, 405 P.3d 73. Again, Kleppens base this contention upon their view of the evidence, asserting the Millers "resisted removal of [their] encroachments until they finally got Tim Kleppen to agree to a boundary relocation so that the encroachments could remain." However, there is no finding by the District Court or evidentiary support for the idea that Millers secured the Stipulation for the purpose of remaining unlawfully on Kleppens' property. To the contrary, because there is a valid contract between the parties, and a record of partial performance and acquiescence, Miller retained the right under the Stipulation to remain on the Kleppen property pending completion of the Stipulation. Thus, the District Court did not err by dismissing the trespass claim.

¶25 Affirmed.

We concur:

MIKE McGRATH, C.J.

LAURIE McKINNON, J.

DIRK M. SANDEFUR, J.

JAMES JEREMIAH SHEA, J.