author: MR. JUSTICE McDONOUGH MR. JUSTICE WEBER

text:
    NORTHERN BORDER PIPELINE COMPANY, A Partnership, Plaintiff and Appellant, v. The STATE OF MONTANA, Department of Revenue, of the State of Montana, et al., Defendants and Respondents.
    No. 88-386.
    Submitted Feb. 10, 1989.
    Decided April 20, 1989.
    772 P.2d 829.

      Michael E. Webster argued and Ronald Lodders, Crowley Law Firm, Billings, for plaintiff and appellant.
    Marc Racicot, Atty. Gen., Clay Smith argued, Asst. Atty. Gen., David W. Woodgerd, Dept, of Revenue, Helena, David L. Nielsen, Co. Atty., Glasgow, James A. McCann, Co. Atty., Wolf Point, for defendants and respondents.
    Reid Peyton Chambers, Sonosky, Chambers & Sachse, Washington, D.C. and Ray F. Koby, for amicus curiae, Swanberg, Koby and Swanberg, Great Falls, Assiniboine and Sioux Tribes.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal involves a dispute over property taxes assessed and levied against a natural gas pipeline owned by Northern Border Pipeline Company (Northern Border). Northern Border appeals from the summary judgment of the District Court of the Seventeenth Judicial District, Valley County, upholding the power of the State of Montana to impose the disputed tax. We affirm.

Northern Border frames six issues on appeal:

1. Does the factual record before the District Court show that Northern Border was entitled to summary judgment?

2. Did the District Court err in failing to find that the challenged taxes have been preempted by federal law?

3. Did the District Court commit error in failing to find that the challenged taxes are illegal because they interfere to an impermissible extent with the Tribes’ sovereign rights of self-government?

4. Did the District Court err in determining that the State has a sufficient nexus with the trust-sited property interests of Northern Border to support imposition of the taxes here challenged?

5. Do the challenged taxes constitute an unreasonable burden on interstate commerce?

6. Do the acts of the State in attempting to assess, levy and collect the challenged taxes conflict with the Enabling Act of the State of Montana and the Constitution of the State?

The pipeline in question carries natural gas from Alaska to the lower 48 states. Northern Border owns the line between the Sasketchewan/Montana border and Chicago. Approximately 181 miles of the line is located in Montana, where a portion of it crosses “trust lands” (lands held by the Federal Government in trust for members of the Indian tribes) within the Fort Peck Indian Reservation. In order to build the line on trust lands, Northern Border was required to obtain a right-of-way grant from the United States Department of the Interior through the Bureau of Indian Affairs. Prior written consent was also required from the Assiniboine and Sioux Tribes (Tribes) with respect to tribal trust lands, and from individual tribal members with respect to lands held in trust for them.

The portion of the pipeline running through reservation trust lands is located in Valley County (12.92 miles), and in Roosevelt County (20.88 miles). From the time of its construction, the pipeline has been subject to a property tax centrally assessed by the State. The assessed tax is levied and collected by the Counties. Northern Border has paid this tax without protest, except for a disagreement in 1986 as to the proper valuation of the line.

In 1987, the Tribes instituted a “utility tax,” which is basically a property tax levied on utilities. The amount of the tribal tax related to the pipeline running beneath trust lands was $1,112,396.56 in 1987. The 1987 property tax assessed by the State resulted in Valley County collecting a total of $2,305,346.05 ($370,794.56 of which related to trust lands), and Roosevelt County collecting $2,211,825.37 ($535,243.85 of which related to trust lands).

Northern Border filed its Application for Temporary Restraining Order and Complaint for Injunctive Relief on November 23, 1987, requesting that the District Court prevent the State from assessing, levying or collecting property taxes on the portion of the line running beneath trust lands. The amount of Northern Border’s 1987 property tax thereby challenged was $906,038.41. The District Court issued a temporary restraining order enjoining collection of the challenged tax, and later granted a preliminary injunction. The parties then filed cross-motions for summary judgment with supporting affidavits. The District court granted the State’s motion and denied Northern Border’s.

At the outset, we note two important features of this case that have shaped our approach to reviewing the District Court’s decision. First, the basis for this suit is a state tax levied against property located on an Indian reservation, but owned by non-Indians. The arguments involved are complex and sometimes confusing, due to the legal principles involved and the attempts of counsel to emphasize particular aspects of those principles.

Second, this case was decided below on a motion for summary judgment. The judge sat without a jury, no testimony was taken and the facts are relatively uncontested. The scope of our review is therefore much broader than in other appeals. We are able to make our own examination of the entire case and make a determination in accordance with our findings. Johnson v. Division of Motor Vehicles (Mont. 1985), 219 Mont. 310, 711 P.2d 815, 42 St.Rep. 2045.

Given the complexity of the arguments and the resulting risk of confusion, we have taken an approach to this case that differs from that proposed by Northern Border. Northern Border’s challenge to the taxes imposed by the State rests on three basic grounds: (1) preemption by federal law, (2) violation of the United States Constitution and (3) violation of the Montana Constitution. While the issues framed by Northern Border have relevance, they are component questions of these three main issues.

I. Federal Preemption

Northern Border argues that the pipeline running through reservation trust lands is subject to federal laws and regulations, with which the challenged state property tax will interfere to an impermissible extent. Both sides agree that the test to be applied in this case was set forth by the United States Supreme Court in White Mountain Apache Tribe v. Bracker (1980), 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665. The White Mountain opinion outlines the relationship among the Indian tribes, the Federal Government and the several states.

Indian reservations are a creation of federal law. Indian activities and property on a reservation generally come within the sphere of federal authority, except in matters where an Indian tribe has retained its tribal sovereignty and is self-governing. A state’s laws are therefore generally inapplicable where the conduct of Indians on the reservation is concerned. White Mountain, 448 U.S. at 143-44, 100 S.Ct. at 2583-84. Where a state seeks to have its laws apply to the activities or property of non-Indians on a reservation, the separation of authority is less clear.

In White Mountain, the State of Arizona sought to impose fuel use and motor carrier license taxes on trucks owned and operated by a non-Indian company, but used in furtherance of a contract with a tribal enterprise engaged in logging operations on a reservation. The company and the tribe challenged the portion of Arizona’s tax that applied to logging and hauling activities carried out exclusively on the reservation, using tribal and federal roads.

The Supreme Court set out essentially a two-pronged test for preemption, because it found that two “independent but related barriers” could preclude a state from asserting its authority on a reservation. First, the exercise of state authority could be preempted by directly applicable federal statutes or regulations. Second, the state could unlawfully infringe on the right of Indians to make their own laws and be governed by them. White Mountain, 448 U.S. at 142, 100 S.Ct. at 2583, (citing Warren Trading Post Co. v. Arizona Tax Comm’n (1965), 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165; and Williams v. Lee (1959), 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251, respectively).

The Supreme Court noted that these two barriers are independent, because either standing alone could be a sufficient basis for finding a state law inapplicable. They are also related, because the right of tribal self-government is ultimately subject to the power of Congress, and thus is effectively a creature of federal law just as are statutes and regulations. We will therefore treat these two separate questions as elements of the same federal preemption analysis. Because the interaction of the various governmental interests in each case will vary, the White Mountain test calls for a “particularized inquiry into the nature of the state, federal and tribal interests at stake,” which are then balanced to determine whether the state law is preempted. White Mountain, 448 U.S. at 145, 100 S.Ct. at 2584. A. Federal Statutes and Regulations

Northern Border asserts that the challenged state tax in this case is preempted by two directly applicable bodies of federal law. The first of these is comprised of statutes enunciating the Federal Government’s goal of promoting tribal self-sufficiency and economic development, specifically, the Indian Financing Act of 1974, 25 U.S.C. §§ 1451 et seq.; the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. §§ 450 et seq.; and the Indian Reorganization Act of 1934, 25 U.S.C. §§ 461 et seq. For example:

“The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self-determination . . . through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from Federal domination of programs for and services to Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services.
“25 U.S.C. § 450a.
“It is hereby declared to be the policy of Congress to provide capital on a reimbursable basis to help develop and utilize Indian resources, both physical and human, to a point where the Indians will fully exercise responsibility for the utilization and management of their own resources and where they will enjoy a standard of living from their own productive efforts comparable to that enjoyed by non-Indians in neighboring communities.
25 U.S.C. § 1451.”

The second body of law is the scheme of regulations governing the granting of rights-of-way over Indian lands found at 25 C.F.R. §§ 169.1, et seq. The purpose of these regulations is stated in 25 C.F.R. § 169.2 as prescribing the “procedures, terms and conditions” under which rights-of-way can be granted across tribal land.

Two of the seminal cases in this area, relied upon by both parties in this case, are White Mountain and Washington v. Confederated Tribes of the Colville Reservation (1980), 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10. The result in each case was different, which allows for an examination of the interests that will cause the balance to tip one way or the other. An overview of these cases shows that the federal/tribal interest will be strongest, and the state interest correspondingly weakest, where the activity or property at issue involves only Indians and is located solely within the reservation. The reverse is true when the activity or property involves non-Indians and has effects that are felt off the reservation. See White Mountain, 448 U.S. at 144, 100 S.Ct. 2584; Colville, 447 U.S. at 154-57, 100 S.Ct. at 2081-83.

In White Mountain, the logging operation at issue was conducted exclusively on reservation lands, using roads built or maintained by the White Mountain Tribe and the Federal Government. The Supreme Court noted the general policy goals contained in the statutes cited above, and examined the extensive federal laws and regulations directly applicable to the logging operation. The regulations dictated, among other things, the amount of timber that could be sold, methods of cutting trees, advertising, mode of bidding, roads to be used, hauling equipment to be used, speed at which equipment could travel, and dimensions of the loads to be hauled.

The Supreme Court found Arizona’s justification for its taxes insufficient to counterbalance their interference with the applicable federal regulatory scheme. Arizona did not assert a public regulatory purpose; i.e., the challenged taxes were not used to address off-reservation effects of the logging operation. The revenue raised by the taxes was used for “partially compensating the state for the use of its highways.” White Mountain, 448 U.S. at 139-40, 100 S.Ct. at 2581. Arizona’s interest in imposing the taxes was held to be slight due to the lack of a public regulatory purpose and the fact that Arizona was not providing any on-reservation services with the revenue from the challenged taxes. The logging trucks involved did not use state roads or highways.

By contrast, the Arizona taxes added a cost component to the logging operation that interfered with three facets of the federal statutory and regulatory scheme: (1) the “overriding federal objective of guaranteeing Indians that they will ‘receive .. . the benefit of whatever profit [the forest] is capable of yielding;’ ” (2) the Federal Government’s ability to set fees and rates required to carry out logging operations and timber sales; and (3) the tribe’s ability to sustain the costs involved in following the federally-mandated sustained yield policy. The Supreme Court found that “no room remains for state laws imposing additional burdens” on the logging operation. White Mountain, 448 U.S. at 149-52, 100 S.Ct. at 2586-88.

In Colville, the tribes involved enacted ordinances authorizing the taxation of on-reservation cigarette sales. The tribes refused to collect Washington cigarette or sales taxes on the transactions. This made the price of cigarettes purchased on the reservation lower than those purchased elsewhere, and non-Indian people traveled to the reservation for the specific purpose of buying cigarettes.

The Supreme Court found this case to be in contrast to a situation (such as that in White Mountain) where the challenged tax affected value generated on the reservation by activities in which the tribes had a strong interest. “What the smokeshops offer these customers ... is solely an exemption from state taxation.” Colville, 447 U.S. at 155 100 S.Ct. at 2082, (contrasting Moe v. Salish and Kootenai Tribes (1976), 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96; and McClanahan v. Arizona State Tax Comm’n (1973), 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129).

The Colville tribes had argued that Washington’s taxes were preempted by the policy of Indian self-sufficiency set out in the statutes quoted above. The Supreme Court held that the general policy of self-sufficiency was insufficient to outweigh Washington’s interest in raising revenue through its sales and cigarette taxes. The statutes were held to be evidence of “congressional concern with fostering tribal self-government and economic development, but none [went] so far as to grant tribal enterprises selling goods to nonmembers an artificial competitive advantage over all other businesses in the State.” Colville, 447 U.S. at 155, 100 S.Ct. at 2082.

In the present case, both parties have examined precedent such as White Mountain and Colville closely in seeking to add weight to their respective interests. For example, in its briefs to the District Court and to this Court, Northern Border quotes an opinion of the Tenth Circuit Court of Appeals for the proposition that a state’s interest in assessing a tax is “particularly minimal when it seeks to raise revenue by taking advantage of activities that are wholly created and consumed within tribal lands and over which it has no control.” Indian Country U.S.A., Inc. v. State ex rel. Oklahoma Tax Comm’n (10th Cir. 1988), 829 F.2d 967, 987. Northern Border then argues that because the portion of the pipeline in question is on trust lands “over which the State has no jurisdiction,” Montana’s interest in raising revenue is likewise particularly minimal. This argument ignores the fact that Northern Border’s pipeline — part of a system stretching from Alaska to Illinois — can hardly be characterized as “wholly created and consumed within tribal lands.” It also presupposes the result of the White Mountain test, which will determine whether the State has a sufficient interest to assert jurisdiction to tax Northern Border’s trust land-sited pipeline.

The State has also engaged in overstatement. For example, the State seeks to derive a rule from holdings such as Colville and White Mountain that direct interference with a particular federal regulatory scheme is necessary before preemption can be found. However, the Supreme Court in White Mountain stated that the balancing of federal, tribal and state interests was to include consideration of the broad policies that underlie relevant federal laws. White Mountain, 448 U.S. at 144-45, 100 S.Ct. at 2584. While Col-ville held broad federal policy insufficient to preempt the state law at issue, it was nonetheless considered as the main component of the tribes’ argument. Colville, 447 U.S. at 155, 100 S.Ct. at 2082. A specific federal regulatory scheme would yield a federal/tribal interest that weighed more heavily in the White Mountain test, but it is not a prerequisite for federal preemption.

Unlike the decisions in White Mountain and Colville, the balance of federal, tribal and state statutory and regulatory interests in this case has a narrow focus. This is not a case where an extensive set of directly applicable federal statutes or regulations leaves no room for the exercise of state authority challenged here. Nor is it a case where the tribes are attempting to gain a commercial advantage by marketing an exemption from state taxation.

As to the federal/tribal interests, one basis for Northern Border’s argument merits much more weight than the other. The weaker basis is the scheme of federal regulations concerning right-of-way grants across reservation lands. The State and the District Court agree that this regulatory system is fairly extensive, but Northern Border makes only bald statements that the State’s tax is preempted by the regulations, without showing any actual relationship between the two.

The activity being regulated is the granting of rights-of-way. The State does not seek to tax the right-of-way itself or any facet of the granting process. The State’s tax is on the pipeline; the property of Northern Border that was not put in place until after the right-of-way grant was obtained. While it is conceivable that some decision made regarding a future right-of-way grant might be somehow affected by the tax, Northern Border has advanced no argument as to what that effect might be. The regulations are at best tangentially related to a property tax on a pipeline sitting in an existing right-of-way. The federal/tribal interests represented by the right-of-way regulations are slight, and can be accorded little weight.

Northern Border’s stronger argument is based on the federal policy of encouraging tribal self-sufficiency set out in the statutes quoted above. In its initial brief to the District Court, Northern Border argued that the Tribes’ utility tax ordinance, by providing revenue for the Tribes to use in providing services on the reservation, was effectively furthering this federal policy. Northern Border argues that the State’s tax makes it more expensive for utilities to locate property on trust lands than it is elsewhere. According to Northern Border, this gives the State the power to control a major factor in any decision to locate business property on the reservation. This would interfere with the federal self-sufficiency policy by inhibiting the Tribes’ ability to manage their own resources (see New Mexico v. Mescalero Apache Tribe (1983), 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611), and by reducing the revenue available for providing reservation services. However, as the State is quick to point out, no present injury to tribal revenues resulting from the State’s tax has been shown.

Northern Border presents factual support for its position in the form of affidavits from utility company executives who state that the double tax burden present on trust lands would affect any decision by their companies regarding location of facilities there. The State attacks these affidavits as speculative and irrelevant. While there is some merit to the State’s attack, the prospective nature of Northern Border’s argument does not render it inconsequential. The law recognizes that one need not wait for a threatened injury to manifest itself before seeking injunctive or declaratory relief. Crow Tribe v. State of Montana (9th Cir. 1987), 819 F.2d 895, 903.

The State’s interest in assessing the challenged tax is similar to the Tribes’. The State argues that substantially all of the revenues derived from the tax stay in Roosevelt and Valley Counties, with a full 71% being used to fund school districts servicing tribal members living on the reservation. The State also notes that the Counties maintain some of the roads on the reservation, and that the State has law enforcement responsibilities for some crimes committed by non-Indians on the reservation, including acts of vandalism against Northern Border’s property.

The balance of the competing interests here as they apply to preemption by federal laws thus narrows to the question of providing services. Although both sides have advanced viable interests to be weighed in the White Mountain test, the State’s interest in funding the school districts involved here and providing local services outweighs the federal/tribal interests asserted by Northern Border. The possible future injury posed by Northern Border has less impact than what would occur were we to hold the State’s tax to be preempted. For example, any failure by the State to provide educational opportunity for reservation children would violate both federal and state law. See, e.g., Equal Educational Opportunities Act of 1974, 20 U.S.C. §§ 1701, et seq.; § 1, Art. X, Mont.Const.; §§ 20-5-103 and 20-5-108, MCA. The deciding factor is thus the greater present interest the State has in providing services to reservation residents. We therefore hold that the challenged tax is not preempted by federal statutes or regulations.

B. Tribal Self-Government

Northern Border also argues that the State’s tax interferes to an impermissible extent with the Tribes’ sovereign rights of self-government. According to Northern Border, the interference with prospective tribal tax revenues wrought by the State’s tax requires a finding of preemption under the second prong of the White Mountain test, because taxation is chief among the powers of sovereignty exercised by an Indian tribe.

The District Court’s order noted that the Tribes, and not Northern Border, are the more appropriate parties to determine whether their interests will be harmed in the future by the challenged tax. On appeal, the State amplifies this point, and argues that Northern Border lacks standing to raise a self-government claim. The State points to Olson v. Department of Revenue (Mont. 1986), 726 P.2d 1162, 1166, 43 St.Rep. 1916, 1920, where this Court adopted federal principles of standing for suits of all kinds, especially court challenges based on alleged constitutional or statutory violation. In Olson, we recognized two bases on which standing rests. One of these is “judicial self-restraint imposed for reasons of policy.” Olson, 726 P.2d at 1166. The policy at issue here is the general reluctance of courts to determine the rights of persons who are not parties to the suit: “. . . the avoidance of the adjudication of rights which those not before the Court may not wish to assert, and the assurance that the most effective advocate of the rights at issue is present to champion them.” Duke Power Co. v. Carolina Environmental Study Group., Inc. (1978), 438 U.S. 59, 80, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595, 616.

Northern Border argues that it has-standing to bring the claims advanced in this suit by virtue of its taxpayer status and the direct economic injury it suffers from the double taxation. Northern Border further argues that this Court has previously addressed self-government issues in cases where no Indian tribes were parties (citing Burlington Northern Railroad v. Department of Public Services Regulation (Mont. 1986), [221 Mont. 497,] 720 P.2d 267, 43 St.Rep. 1005; and Milbank Mutual Insurance Co. v. Eagleman (1985), 218 Mont. 58, 705 P.2d 1117, 42 St.Rep. 1393). Our reading of these cases shows Northern Border’s argument to be incorrect. Our decision in Burlington Northern was based on applicable federal regulations, and did not address self-government. The plaintiff in Eagleman, while technically not an “Indian tribe,” was an individual who was “an enrolled member of the Fort Peck Sioux and Assiniboine Tribes.” Eagleman, 705 P.2d at 1118. Northern Border also cites two recent state court decisions, one from Arizona and one from New Mexico, for the proposition that consideration of a federal preemption claim necessarily includes consideration of self-government, thereby affording standing for a non-Indian to assert a self-government claim. We disagree with these holdings, and decline to apply them.

Northern Border has standing by virtue of its taxpayer status to challenge the property tax imposed on it by the State. However, it does not have standing to assert the Tribes’ sovereign right of self-government in doing so. As we noted in Olson, the principle of standing requires that the plaintiff allege “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . . .” Olson, 726 P.2d at 1166 (quoting Baker v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678). Northern Border cannot allege a sufficient “personal” stake in the self-government interests of the Tribes to gain standing on this claim. Having so found, we will not address the claim’s merits.

II. Violation of United States Constitution

Northern Border asserted in its Application for Temporary Restraining Order and Complaint for Injunctive Relief that the challenged tax violates three provisions of the United States Constitution: the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Indian Commerce Clause. Beyond these initial allegations, we find nothing in the various briefs submitted by Northern Border that purports to be an equal protection argument. Because our review of the facts shows no objectionable classification on which to base such a claim, we will not address it further.

The Due Process Clause claim appears to be based on the alleged lack of nexus between the State and that portion of the pipeline crossing trust lands. The State characterizes this argument as specious, owing to the fact that the trust lands are located within the boundaries of Montana. Without passing on whether Northern Border has advanced a specious argument, we decline to hold that the challenged tax violates constitutional due process guarantees.

A leading U.S. Supreme Court decision on state taxation, Container Corp. v. Franchise Tax Board (1983), 463 U.S. 159, 165-66, 103 S.Ct. 2933, 2940, 77 L.Ed.2d 545, 553-54, defines nexus as a “minimum connection” between the State’s income from the tax and the instate value of the enterprise being taxed. The tax here at issue is assessed based on the value of the pipeline found within the State. The revenue obtained is used to provide government services to Northern Border and tribal members, among others. This is sufficient nexus to withstand the due process challenge advanced by Northern Border.

Northern Border next argues that the State’s tax is violative of the Indian Commerce Clause under the four-part test established in Complete Auto Transit, Inc. v. Brady (1977), 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326. First, the test in Complete Auto applies to the Interstate Commerce Clause (Art. I, § 8, cl.2, U.S.Const.), not the Indian Commerce Clause (Art. I, § 8, cl. 3, U.S.Const.). Second, as the Supreme Court stated in Colville, “It can no longer be seriously argued that the Indian Commerce Clause, of its own force, automatically bars all state taxation of matters significantly touching the political and economic interests of the Tribes.” It would, however, have a role in “preventing undue discrimination against, or burdens on, Indian commerce.” Colville, 447 U.S. at 157, 100 S.Ct. at 2083. Northern Border’s allegations of future injury to tribal revenues do not rise to the level of undue discrimination or burden on Indian commerce. Moreover, the Colville court found Washington’s tax acceptable under this analysis because it was imposed without discrimination on all transactions within the state. The tax at issue here is alleged by Northern Border to be improper for that very reason. It is assessed against the pipeline based on its value without regard to where the line is located within the State. We find no Indian Commerce Clause violation present in this case.

III. Violation of the Montana Constitution

Northern Border’s claim under the Montana Constitution is confined to the incorporation of Montana’s Enabling Act in Article I:

“All provisions of the enabling act of Congress (approved February 22, 1889, 25 Stat. 676), as amended and of Ordinance No. 1, appended to the Constitution of the state of Montana and approved February 22, 1889, including the agreement and declaration that all lands owned or held by any Indian or Indian tribes shall remain under the absolute jurisdiction and control of the congress of the United States, continue in full force and effect until revoked by the consent of the United States and the people of Montana.”

The delegates to the 1972 Constitutional Convention stated their intent during debate that this provision should be included to show that the Enabling Act, the “contract” between Montana and the Federal Government, was still in force under the 1972 Constitution. VII Mont. Leg. Council, Montana Constitutional Convention, 1971-1972, 2567 (1981).

The U.S. Supreme Court has held that through enabling acts, the states surrendered their proprietary interests in tribal lands, but not necessarily their governmental or regulatory authority. See Colville, 447 U.S. at 156, 100 S.Ct. at 2082; Draper v. United States (1896), 164 U.S. 240, 17 S.Ct. at 107, 41 L.Ed. 419. As we held above, the White Mountain test establishes Montana’s jurisdiction to assess the tax here challenged. That jurisdiction is not defeated by Art. I, Mont.Const.

After reviewing the record and the briefs to this Court, we find that Northern Border has not asserted federal/tribal interests sufficient to outweigh the State’s interest in raising revenue for required government services encompassing reservation residents, and lacks standing to assert the Tribes’ interests in self-government. We conclude that the challenged tax is not preempted by federal law. We also have been unable to find constitutional barriers to the challenged tax, and conclude that it is therefore constitutional. Given these conclusions, we hold that there is no issue as to any fact material to the State’s entitlement to summary judgment.

We affirm the decision of the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON, SHEEHY and HUNT concur.

MR. JUSTICE WEBER

specially concurring:

I commend the majority for a well analyzed and well written opinion. Based on previous case law, the majority has properly struck a balance. Unfortunately, we have been unable to address the fundamental issue of fairness in the present case.

Here we have double taxation. After the completion of the pipeline, the State levied its property tax of approximately $33,000 for each mile of pipeline on the reservation. Essentially the State levied the same tax as would have been levied if the pipeline were located off the reservation in the State of Montana. Northern Border did not protest such a tax as it apparently concluded that a single tax of that nature was appropriate. After several years, the Tribes became aware of an opportunity to levy a similar property tax for their own direct use and benefit. Such a Tribal tax was appropriate because the pipeline was located on the reservation land. The Tribes then imposed their own property tax of approximately $33,000 per mile for each mile of pipeline on the reservation, resulting in an additional annual tax to Northern Border of approximately $1 million each year. Had Northern Border constructed its pipeline south of the reservation, there would only have been a single tax. Now Northern Border is trapped with a double tax resulting from the taxing ingenuity of two independent taxing entities. Northern Border properly feels it should have a judicial forum where this unfairness can be reviewed.

Unfortunately our state judicial system is unable to address that issue of fairness. Our jurisdiction does not extend to any control over the Tribal lands nor of the Tribe’s annual tax of approximately $1 million. We therefore cannot consider the tax of both the State and the Tribes. We can only state that the Montana tax is appropriate. Where does that leave Northern Border?

As a result of this opinion, Northern Border cannot obtain consideration of the issue in our State judicial system. Can Northern Border next go to the federal court system? Clearly the answer again is, “No.” If Northern Border proceeds in federal court, that court system would undoubtedly agree that it has the authority to consider the tax by the Tribes only, but that it cannot consider the tax imposed by the State of Montana. The result again would be that the double tax could not be considered. Clearly this is unfair to the taxpayer.

Northern Border argues that the double tax will adversely effect the economic development of the reservation. The State argues that the issue cannot be presented by Northern Border as a taxpayer because this is a matter which can be presented only by the Tribes who are not parties to the action. It appears that the majority is correct in not addressing the issue as to the adverse effect on the economic development of the reservation. Again there is an element of unfairness.

Without question there will be an impact on the reservations of Montana in the future. Economic development on the Indian reservations will be reduced. Non-Indians, whether corporate or individual, will not construct taxable property on an Indian reservation if it is possible to place that property outside a reservation boundary. The message to the business community is to avoid transactions on the reservations which may be subject to such a double tax. Tragically the result will be a greater separation of the Indian reservations from the remainder of the State of Montana.

Montana lacks the power to address all aspects of this dilemma. It becomes one more unfortunate aspect of the Indian problem which remains to be addressed by the Congress of the United States.

I concur in the majority opinion. Yet I also conclude that justice has been denied.


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY MR. JUSTICE McDONOUGH

license: Public Domain

text:
    NORTHERN BORDER PIPELINE COMPANY, a partnership, Plaintiff and Respondent, v. The STATE OF MONTANA; the Department of Revenue of the State of Montana; Ken Nordtvedt, Director of the Department of Revenue of the State of Montana; Valley County, Montana, a political division of the State of Montana having corporate power; Arden Nichols, Valley County Commissioner, Arthur Arnold, Valley County Commissioner, Eleanor Pratt, Valley County Commissioner, Marla J. DeBray, Valley County Treasurer; Ellen Byrnes, Valley County Assessor, Roosevelt County, Montana, a political division of the State of Montana having corporate power; James R. Halverson, Roosevelt County Commissioner; LaVern Schledewitz, Roosevelt County Commissioner; Alfred Kaschube, Roosevelt County Commissioner; and Virginia W. Plouffe, Roosevelt County Treasurer, Leo F. Kaschube, Roosevelt County Assessor, Defendants and Appellants.
    No. 88-619.
    Submitted on Briefs March 21, 1989.
    Decided April 20, 1989.
    772 P.2d 839.

      Marc Racicot, Atty. Gen., Clay R. Smith, Asst. Atty. Gen., David W. Woodgerd, Dept, of Revenue, Helena, David L. Nielsen, Valley County Atty., Glasgow, James A. McCann, Roosevelt County Atty., Wolf Point, for defendants and appellants.
    Michael E. Webster and Ronald R. Lodders, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The defendants above named appeal from an order and judgment of the District Court, Seventeenth Judicial District, Valley County, denying appellants attorneys’ fees in a case where the appellants were successful in securing the dissolution of an injunctive order.

The District Court reasoned that it would not award attorneys’ fees as an element of damages here because Roosevelt County, Valley County and the State of Montana each pay their respective attorneys a salary for representation in matters affecting those entities, and because the affidavits filed in the case did not show that the attorneys’ services burdened the taxpayers beyond their salaries. We uphold and affirm the District Court.

Respondent Northern Border Pipeline Company initiated an action on November 23, 1987, seeking injunctive relief against the imposition of 1987 state property taxes on its pipeline located within the exterior boundaries of the Fort Peck Indian Reservation. Northern Border proceeded under § 15-1-405, MCA, which permits a district court to restrain the collection of any tax or part thereof “where the tax or the part thereof sought to be enjoined is illegal or not authorized by law.” As a basis for the injunction, Northern Border set out in its complaint six claims for relief: (1) that the assessing, levying and collecting of taxes by Valley and Roosevelt Counties on the property interests of Northern Border within the exterior boundaries of the Fort Peck Indian Reservation were inconsistent with federal policies and were preempted by federal law; (2) that such assessing, levying and collecting of taxes interfered to an impermissible extent with the right of the tribes thereon to govern themselves; (3) that no nexus existed between the counties and the property interests of Northern Border located on trust land within the boundaries of the Fort Peck Indian Reservation; (4) that the proposed taxes violated Art. I, Section 8, Clause 3, of the United States Constitution; (5) that the proposed collection of taxes violated Section 4 of the Enabling Act for the State of Montana and Article I of the Montana Constitution; and, (6) that the imposition of taxes by the two counties was confiscatory as to Northern Border and violated Northern Border’s rights to equal protection and due process of law under the United States Constitution.

The appellants herein, the defendants below, include the State of Montana, the Montana Department of Revenue and its director, Roosevelt County, Valley County and various officials of those counties.

While the tax dispute was in the District Court, the parties filed cross-motions for summary judgment, and on June 29, 1988, the motion of the appellants was granted and that of Northern Border was denied. In relevant part, the June 29 order dissolved the previously issued preliminary injunction and directed entry of judgment in the appellants’ favor.

On July 11, 1988, the appellants filed a motion for attorneys’ fees and expenses, requesting $7,027.26 as damages. Of that amount, $5,695.26 was attributed to attorneys’ fees, later increased by $192.00; and $1,320.00 was attributed to transportation expenses in connection with two hearings before the District Court in Glasgow, Montana.

In the same order in which the District Court denied the appellants’ attorneys’ fees, it granted the award for transportation expenses. Northern Border has not cross-appealed as to the transportation expenses. This appeal relates solely to the item of attorneys’ fees claimed by the appellants.

Section 27-19-306, MCA, provides that when a district court grants an injunction or restraining order, the court shall require a written undertaking to be given by the applicant, in such sum as the court considers to be proper, “for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” (Emphasis added.)

In Sheridan County Electric Co-op., Inc. v. Ferguson (1951), 124 Mont. 543, 551, 227 P.2d 597, 601, this Court held that:

“Where . . . the sole purpose of the action was to obtain injunctive relief, then after dissolution of the injunction and upon final adjudication, counsel fees are recoverable for defense of the entire suit.” In that case, Ferguson, a minority stockholder of the cooperative, sought to restrain and enjoin the corporation from moving its principal place of business from Westby, Montana, to Medicine Lake, Montana and a restraining order was granted. In that case, also, Ferguson had posted an undertaking. The action by the cooperative was upon the injunction bond after the injunctive order was dissolved, and this Court held in that case:
“The measure of damages in an action on the injunction bond is the amount which will compensate for all the detriment proximately caused by the injunction during the time it is operative, or which in the ordinary course of things, would be likely to result therefrom.” 124 Mont. at 549, 227 P.2d at 601.

In Marta v. Smith (1981), [191 Mont. 179,] 622 P.2d 1011, this Court stretched the right to recover attorneys’ fees by a litigant who successfully procures a dissolution of an injunctive order to cases where an undertaking was not filed. In that case, this Court said:

“Despite the fact that § 27-19-306 provides for recovery by an action on an injunction bond, we apply the same reasonable standard to those actions for attorney fees in which a bond is not involved. In making attorney fees an element of damages under § 27-19-306, the legislature surely did not intend to make the recovery depend on the judge’s discretion in demanding an injunction bond. Thus we find that the district judge should have awarded reasonable fees as an element of damages, pursuant to § 27-19-306, MCA, and not as costs of suit.”

622 P.2d at 1016.

Thus, Marta clearly established that recovery of attorneys’ fees was not dependent upon the furnishing of a bond or undertaking but just as clearly held that reasonable attorneys’ fees were an element of damages and not costs of suit.

In this case, appellants are asking this Court to stretch Marta even further, by allowing the recovery of attorneys’ fées where no monetary damages are established.

The motion of the Attorney General for attorneys’ fees was supported by affidavits from a Deputy Attorney General who claimed 54.5 hours of services at $48 per hour; an attorney for the Department of Revenue, who claimed 32 hours of services at $30 per hour (based on the budget given to the Department of Revenue); another attorney for the Department of Revenue who claimed 18 hours of services at $30 per hour; and the County Attorney of Roosevelt County, who claimed 18 hours of services at $21.07 per hour. Each of the affidavits was made by persons who were salaried employees of the state or of the county.

Section 27-1-202, MCA, defines the right to compensatory damages to persons who suffered detriment from the unlawful act or omission of another. Although Northern Border did not act unlawfully here in pursuing its perceived rights under § 15-1-405, MCA, under Marta, supra, damages in cases such as this include attorneys’ fees. Yet, attorneys’ fees here were not incurred in the sense that the State and two counties involved would have had the salary expense of the respective attorneys with or without Northern Border’s litigation. As the District Court reasoned, no additional burden has been placed upon the taxpayers of any governmental entity by virtue of Northern Border’s actions, although the appellants argue that the time spent by the respective attorneys on this litigation was time taken from other matters which those attorneys could have handled. We hold that such a claim for damages is too remote to be considered a proper basis for the assessment of damages.

In this case, no bond or undertaking was required of Northern Border when it applied for its injunctive relief. Part I, Title 15, MCA, provides several alternative remedies that may be taken by a taxpayer that wishes to contest the assessment, levying or collection of a tax. One of those alternatives is the injunctive method provided in § 15-1-405, MCA, No mention in that statute is made that a taxpayer seeking injunctive relief under § 15-1-405, MCA, must comply with the undertaking provisions of § 27-19-306, MCA. It is not necessary to decide that point here, however.

Our decision here does not affect our holding in City of Helena v. Brule (1895), 15 Mont. 429, 39 P.2d 456 where we held that public entities may recover attorneys’ fees paid to retain outside counsel as damages for being wrongfully enjoined. Our holding in this case is compatible with the generally accepted view of compensatory damages that the reason for the award of damages is to make the damaged person whole.

We affirm the holding of the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON and HUNT concur.

MR. JUSTICE McDONOUGH

dissenting:

The rationale of the majority lacks consistency and ignores reality. It carves out an unlisted exception to the meaning of statutory damages as applied to attorney fees and contradicts our previous holding in Sheridan County Electric Co-op, Inc. v. Ferguson (1951), 124 Mont. 543, 221 P.2d 597. Temporary restraining orders and injunctions are extraordinary remedies and if the party obtaining such orders later loses such party should pay the winner’s damages as provided by statute. That is the statutory scheme.

There is damage to the State of Montana and the public entities. They here have adequately and with precision proved their reasonable legal costs (damages) as per hour sálaried costs. They did not include secondary costs such as pro rata costs of library, equipment, secretarial costs, rent, utilities, etc., which would be charged by private counsel. Hours billed are one way of life between attorneys and clients. To say damages based on proved hours are too remote is to close one’s eyes to the way its being done. The taxpayer, or any defendant, should not ultimately bear the cost of damages incurred in a winning defense to an extraordinary remedy, just because in-house counsel are used. Salaried attorneys do not come free. Any legislator, county commissioner, or corporate executive would affirm this statement. A number of these cases requesting declaratory injunctive relief are now and have recently been before this Court.

The message of the majority is that a public entity, a private person or corporation should not use in-house counsel in a defense to an injunction, because only the charges of outside counsel will be reimbursed as statutory legal damage if one prevails. This is so even though outside counsel’s charges in all likelihood will be computed on an hourly basis and in some instances their employment would be costly and inefficient. I would reverse the District Court.

MR. JUSTICE HARRISON and MR. JUSTICE WEBER concur in the foregoing dissent.


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. VERN TRAVIS BAKER, Defendant and Appellant.
    No. 88-197.
    Submitted on Briefs Feb. 16, 1989.
    Decided April 25, 1989.
    773 P.2d 1194.

      Morgan Modine and Douglas Anderson, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., Helena, Robert J. Deschamps III, County Atty., Missoula, Betty Wing, Karen Townsend, Deputy County Attys., for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant was convicted on a jury verdict before the District Court, Fourth Judicial District, Missoula County, of robbery, a felony; theft, a felony; tampering with a witness, a felony; and theft, a misdemeanor. The District Court set aside the robbery conviction. Defendant was sentenced to 50 years at Montana State Prison for felony theft, and 50 years for tampering with a witness. He was also sentenced to 6 months in jail for misdemeanor theft. These sentences are to run concurrently. Defendant appeals those convictions. We affirm.

The issues are:

1. Did the District Court err in consolidating the charges?

2. Did the District Court err in admitting certain evidence?

3. Did the District Court err in giving an instruction on accountability during jury deliberations?

On February 5, 1987, the Missoula County Attorney filed an information charging Mr. Baker with robbery, a felony. On March 6, 1987, Mr. Baker was charged with felony theft. The second information was amended to include a charge of burglary. On May 4, 1987, defendant was tried on the robbery count but the jury did not reach a verdict. Later the information charging robbery was amended to include the offense of tampering with a witness.

After the trial on May 4, 1987, the county attorney filed a third information charging defendant with misdemeanor theft. Thereafter, the county moved to consolidate all the charges and that motion was granted on October 28, 1987.

The consolidated causes were tried by jury on November 23, 1987. Defendant was found guilty of robbery, felony theft, tampering with a witness, and misdemeanor theft. Defendant moved the court to set aside the verdicts of guilty to robbery and felony theft. The court subsequently set aside the verdict of guilty of robbery.

The relevant facts in this case began on December 13, 1986, when Gary Deschene reported to the Missoula County Sheriff’s office that a gun was missing from his home. Following a Crimestopper’s tip, detectives searched the home of Mr. Baker for this gun, but did not find it. On. July 14, 1987, a skindiver found a gun underneath Buckhouse Bridge in the Bitterroot River. He turned the gun over to the sheriff and Mr. Deschene identified it as the one missing from his home.

At trial, Mr. Baker’s girlfriend, Katherine Lamb, testified that Mr. Baker had told her he had a gun he had to dispose of, and that she had accompanied him to the Buckhouse Bridge where Mr. Baker threw the gun into the river.

A friend of Mr. Baker, Lance Sprout, testified at trial that on January 17, 1987, he and Mr. Baker entered the home of Lloyd Willumsen and took two rifles and a box of pistols. Mr. Sprout stated that Mr. Baker later went back to that residence and took a shotgun, binoculars, and several other items.

Mr. Sprout also testified that five days later, on January 22, 1987, he approached his cousin about borrowing a car. The cousin arranged for Mr. Sprout to borrow a car from a friend. The car Mr. Sprout borrowed was a blue Honda Civic with personalized license plates which said, “MARSBAR.” Mr. Sprout stated that he picked up Mr. Baker in the borrowed car, and after a couple of stops, they decided to rob Payless Shoe Store in Missoula. Mr. Sprout testified that he and Mr. Baker robbed the store, using the sawed-off shotgun taken from the Willumsen residence.

A citizen driving by observed the two men leaving Payless Shoe Store with stockings over their heads. The citizen followed them as they drove away, obtaining a vehicle description and license plate identification. Later that night the car was stopped by a Missoula deputy who observed it near the Missoula County Courthouse.

When the car was searched, detectives found items used in the robbery and items taken from the store. They also found rifles and other items taken from the Willumsen home. When detectives searched defendant’s grandmother’s house, where Mr. Baker lived, they found a shotgun scabbard in her car, also belonging to Mr. Willumsen.

At trial Mr. Baker’s girlfriend, Katherine Lamb, testified that Mr. Baker called her while he was awaiting trial, and asked her to testify that he had called her on the phone at 8:00 p.m. on the night of the robbery. She testified that he later sent a letter to her in which he suggested that she get together with his mother and grandmother, decide on how they would answer questions, and “rehearse, rehearse, rehearse.” He said they all needed to stick together and not discuss it with anyone else “until we have it down to a T.” This letter, which was admitted into evidence at trial, implied that an alibi should be formulated.

I

Did the District Court err in consolidating the charges?

The first issue on appeal is whether the District Court properly joined the various charges against Mr. Baker. The relevant statute on joinder, § 46-11-404, MCA, provides in pertinent part:

“(1) An indictment, information, or complaint may charge two or more different offenses connected together in their commission, different statements of the same offense, or two or more different offenses of the same class under separate counts. If two or more indictments, informations, or complaints are filed in such cases in the same court, the court may order them to be consolidated ....
“(4) If it appears that a defendant or the state is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial, the court mar order separate trials, grant a severance of defendants, or provide any other relief as justice any require.”

Joinder is proper where the offenses are logically linked by motive and where overlapping proof must be offered. United States v. Hoelker (9th Cir. 1985), 765 F.2d 1422, 1425. In this case the burglary and felony theft charges stemmed from the same incident, which was the burglary of the Willumsen residence. These charges were connected to the robbery charge in that the gun stolen from Mr. Willumsen was used in the robbery. Additionally, other items stolen from the Willumsen residence were found in the car which was used in the robbery. Separate trials would have required overlapping evidence, and many of the same witnesses. The robbery supplied the motive for the witness tampering charge which was therefore properly joined. State v. Bingman (1987), 745 P.2d 342, 44 St.Rep. 1813. There was evidence indicating that the misdemeanor theft of the Deschene gun, committed a month prior to the other crimes, was done in furtherance of a plan to commit an armed robbery. The crimes were logically connected by motive and there was a large area of overlapping proof among the separate charges. We therefore hold that the District Court’s joinder of these charges was not clearly erroneous.

Having concluded that joinder was not clearly erroneous, the second inquiry is whether the motion to sever should have been granted due to prejudice to the defendant. We have previously enumerated three basic types of prejudice which each occur on consolidation. State v. Campbell (1980), 189 Mont. 107, 120, 615 P.2d 190, 198. State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.7d 509, 514-515. In Campbell, we stated:

“The first kind of prejudice results when the jury considers a person facing multiple charges to be a bad man and tends to accumulate evidence against him until it finds him guilty of something. The second type of prejudice manifests itself when proof of guilt on the first count in an information is used to convict the defendant of a second count even though the proof would be inadmissible at a separate trial on the second count. The third kind of prejudice occurs when the defendant wishes to testify on his own behalf on one charge but not on another. (Citation omitted.)”

615 P.2d at 198.

Prejudice to defendant is balanced against judicial economy. This balancing is left to the sound discretion of the trial judge and the appellate court will not substitute its judgment for that of the trial court, absent a showing of abuse of discretion. Judicial economy weighs heavily in the balancing process, and the burden is on the defendant to show that prejudice outweighs this. Campbell, 615 P.2d at 198.

In the present case defendant contends that consolidation of the charges was prejudicial because the number of charges against him allowed the jury to regard him as a “bad man.” In the recent case of State v. Slice (1988), [231 Mont. 448,] 753 P.2d 1309, 1311, 45 St.Rep. 752, 754, this Court stated that the cumulative effect of multiple charges is “rarely a sufficient reason to justify severance.” In Slice, the defendant faced 16 criminal counts at trial, yet the court found insufficient prejudice to require severance. See also, Campbell, 615 P.2d at 199, (where the district court refused to sever a habitual traffic offender charge); Orsborn, 555 F.2d at 515.

In support of his contention that the first type of prejudice occurred, Mr. Baker cites answers given by two jurors when the jurors were polled after trial. In polling the jurors, the court asked if the multiple charges made them think that the defendant was more likely to be guilty. The court and defense counsel framed this question several different ways in attempts to clarify precisely what was being asked of the jurors. The court finally directed the jurors as follows:

“THE COURT: Well, see if you can answer that. If you can’t understand, just say, T can’t answer, I don’t understand.’ ”

Two jurors responded, “I don’t know.” It is not at all clear that these jurors were indicating that they may have convicted Mr. Baker due to multiple charges. The jurors may have been responding to the court’s direction to not answer if they did not understand the question as posed.

We conclude that neither the cumulative effect of the multiple charges nor the jurors’ answers to the polling demonstrates prejudice to the defendant sufficient to deny him a fair trial. “In showing prejudice, it is not sufficient that the defendant prove some prejudice or that a better chance of acquittal exists if separate trials are held. Rather, the defendant must show the prejudice was so great as to prevent a fair trial.” Campbell, 615 P.2d at 198 (citing United States v. Dohm (5th Cir. 1979), 597 F.2d 535, 539; United States v. Martinez (1st Cir. 1973), 479 F.2d 824, 828.) We affirm the holding of the District Court that defendant failed to demonstrate prejudice which would require severance.

Mr. Baker also contends that the second type of prejudice from joinder occurred at his trial. This type of prejudice exists when the jury uses proof of guilt on one count in the information to convict a defendant on another count in the information even though proof would have been inadmissible at a separate trial on the second count. As we stated in Campbell:

“No prejudice of this nature will be found when the evidence presented at a joint trial is simple and distinct. This rule is based on the rationale that when the charges are few and the evidence straight forward, there is no reason to assume the jury was confused and could not keep the relevant evidence separate. (Citations omitted.)”

615 P.2d at 199.

In the present case the charges were not complicated and the evidence was not complex. Defendant has failed to state what evidence was used to find him guilty on one count which would have been inadmissible in a separate trial. The jury was instructed that each count charges a distinct offense and that each count must be decided separately.

Defendant contends, however, that this second type of prejudice occurred because the jurors were confused. In support of this contention he notes that upon polling the jurors after trial, three jurors said they did not believe defendant was in the Payless Store when it was robbed. He argues that this shows the jurors were confused because no evidence was presented which portrayed defendant in a light other than as perpetrator. As additional evidence that confusion was “rampant” in the trial, defendant notes that the prosecutor made an incorrect statement about the evidence in closing argument. However, the jurors were also polled on the specific question of whether the multiple charges caused confusion in their minds, and each juror answered, “No.” Defendant has not met his burden of showing the second type of prejudice. We therefore conclude that the defendant has demonstrated no prejudice sufficient to deny him a fair trial or to require severance under § 46-11-404(4), MCA. We hold that the District Court’s refusal to sever the charges was not clearly erroneous. We affirm the holding of the District Court on the motion to sever.

II

Did the District Court err in admitting certain impeachment evidence?

Mr. Baker objects to the admission of a letter written by him to Randy Clark, an inmate at Montana State Prison. The letter contained a message to Lance Sprout, who was also incarcerated at Montana State Prison. In the message to Mr. Sprout, Mr. Baker suggests that “if someone accidentally somehow bumped his head and he got amnesia, they could not hold that against him,” and “possibly the next statement in court will be so mixed up that it will be thrown out.” At the end of the letter, Mr. Baker offers to send money, indicating that he will send generous amounts if his innocence is proven. This letter was introduced by the State on cross examination of Mr. Baker.

The State first asked Mr. Baker if it would have been to his advantage if Lance Sprout had not testified at Mr. Baker’s trial, and if it would have been to his advantage if Mr. Sprout had gotten amnesia while he was at the prison. The State next asked Mr. Baker if he had ever written a letter making those suggestions. Mr. Baker’s answers to the State’s questions were evasive. Also, by his answers he attempted to suggest that the possibility of amnesia was Mr. Sprout’s idea. Mr. Baker was then asked to read the letter to the jury. Defense counsel objected on grounds of relevancy and foundation. On appeal, the defense argues that the letter was irrelevant and prejudicial.

The letter was relevant to show consciousness of guilt and is admissible under Rule 404(b) M.R.Evid., which provides:

“Other crimes, wrongs, acts. Evidence of other crimes, wrongs, acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

The second sentence of this subpart provides a list of exceptions to the general rule that other crimes, wrongs or acts are inadmissible to prove a person’s character. Evidence of another act may be admissible to prove any of the enumerated reasons; however, this list is not exclusive and has been held to include evidence which tends to prove consciousness of guilt. State v. Shaw (1982), 199 Mont. 248, 648 P.2d 287, 289. In Shaw, evidence of intimidation of a witness was an act which was admissible to show consciousness of guilt. See also State v. Clark (1984), 209 Mont. 473, 682 P.2d 1339, 1350.

In Shaw this Court stated that “[i]n a criminal prosecution any attempted intimidation of a witness is properly attributable to a consciousness of guilt and testimony relating thereto is relevant and admissible in evidence.” Shaw, 648 P.2d at 289-290, quoting People v. Smith (1972), 3 Ill.App.3d 958, 279 N.E.7d 512, 513. In Clark we noted that this rationale applies to documentary as well as testimonial evidence. Clark, 682 P.2d at 1350. In the present case we believe that the letter in which Mr. Baker attempted to influence Mr. Sprout’s testimony evidences defendant’s consciousness of guilt. As such, we conclude that the letter was relevant and admissible pursuant to Rule 404(b), M.R.Evid.

Defendant argues that even if this evidence were admissible as “other acts” pursuant to 404(b), the four element test of admissibility and procedural requirements established in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, were not met. However, the Just requirements do not apply in the present case. The defendant in Shaw raised the same argument but this court disagreed, stating:

“Both the admissibility test and the procedural requirements found in Just pertain to evidence of other prior crimes but do not apply to evidence establishing consciousness of guilt regarding the crime with which the defendant is charged.”

Shaw, 648 P.2d at 290.

We hold that the District Court’s ruling which admitted the letter was not clearly erroneous.

III

Did the District Court err in giving an accountability instruction during jury deliberations?

During deliberations, the jury submitted a question to the court which stated, “The charge of robbery, Instruction No. 8, how does it apply to Instruction 11 regarding accomplice?” The court and counsel for both parties considered this question in chambers but were unsure what the jurors actually wanted to know. After the court asked the jurors to clarify their question, and after discussion with counsel, the court decided to instruct the jury on the offense of accountability as defined by §§ 45-2-301 and 302, MCA. The jury later returned verdicts of not guilty to burglary of the Willumsen residence, but guilty of theft of the items taken in that burglary. Defendant argues that this is an inconsistency caused by the giving of the accountability instruction.

Defendant also contends that the accountability instruction was a material variation of the crimes charged and that it was error to give this instruction after closing argument because he was precluded from discussing this theory with the jury, citing State v. Bretz (1979), 180 Mont. 307, 590 P.2d 614. Defendants ultimate contention on this issue is that the District Court erred in not setting aside the verdict of guilty to theft.

We'decline to address whether the court erred in giving this instruction during jury deliberations because we conclude that the jury’s determination that Mr. Baker was guilty of felony theft need not be premised on an accountability theory in this case. There was sufficient evidence presented for the jury to find Mr. Baker guilty of theft without the accountability instruction, and without finding him guilty of burglary.

We hold that the District Court properly refused to set aside the conviction for theft.

MR. JUSTICES HARRISON, SHEEHY, HUNT and McDON-OUGH concur.


author: MR. JUSTICE GULBRANDSON

text:
    NANCY A. FELLER, Plaintiff and Appellant, v. JAKE FOX, Defendant and Respondent.
    No. 88-325.
    Submitted on Briefs March 2, 1989.
    Decided April 25, 1989.
    Rehearing Denied May 11, 1989.
    772 P.2d 842.

      Joseph P. Hennessey, Hennessey Law Office, Billings, for plaintiff and appellant.
    Lawrence R. Martin, Felt & Martin, James D. Walen, Keefer, Roybal, Hanson, Stacey & Walen, Billings, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Nancy A. Feller (Feller) appeals the April 12, 1988 order of the District Court of the Thirteenth Judicial District, Yellowstone County, denying her motion for a new trial. Feller also appeals the court’s denial of her motion in limine to exclude the testimony of Dr. Gary Ray. Having examined the record and the law we affirm the rulings of the District Court.

This case arose from an automobile accident which occurred on April 20, 1986 at an intersection in Billings, Montana. Feller, a passenger in her own 1977 Chevrolet Nova, sustained injuries when her vehicle was rear-ended by a vehicle driven by the respondent, Jake Fox (Fox). Feller was transported to a Billings hospital by ambulance, treated for trauma to her neck and back and then released. This trauma condition is more commonly known as whiplash. In the following days and months Feller consulted with her family physician in Bridger, Montana, several other doctors in the Billings area and a physical therapist. She complained of pain in the neck area and severe, disabling headaches.

One of the doctors Feller contacted was Dr. Gary Ray, an osteopathic physician. Feller made an appointment with Dr. Ray and was examined by him three days after the accident. Feller indicated on a patient information sheet that she had been referred by a Dr. Berg, who had an office in the same building. Based upon the examination, which lasted 15 to 30 minutes, Dr. Ray found Feller’s symptoms were exaggerated. As she was already being treated by several other physicians, Dr. Ray declined to treat her and forwarded a copy of his findings to her regular physician.

In October of 1986, Feller filed suit against Fox seeking damages for her physical injuries and pain, mental anguish and emotional distress, and medical and non-medical expenses. The complaint also sought compensation for lost wages and for damages arising because of her potentially permanent inability to engage in her normal work or activities.

Prior to trial, Fox admitted liability and then filed an offer of judgment in the amount of $20,000. Feller, however, declined this offer of judgment and the case proceeded to trial before a jury on the issue of damages.

Feller filed a motion in limine prior to Fox’s case-in-chief, seeking to exclude the testimony of Dr. Gary Ray. The District Court denied the motion and Dr. Ray’s deposition testimony was read into the record. The jury returned a verdict in favor of Feller in the amount of $7,837.49. Feller filed a motion for a new trial pursuant to § 25-11-102(1), (2), (6), (7), MCA, alleging irregularity in the proceedings, misconduct of the jury, insufficiency of the evidence to justify the verdict, that the verdict was against law, and error in law occurring at trial. The court denied the motion for a new trial after finding that the motion was procedurally flawed for failure to include juror affidavits and further, that substantial credible evidence existed to sustain the jury’s verdict. From this holding Feller appeals and presents the following issues for review:

(1) Did the District Court err in denying Feller’s motion in limine to exclude the testimony of Dr. Ray?

(2) Did the District Court abuse its discretion in denying Feller’s motion for a new trial?

(3) Did the District Court abuse its discretion in refusing to give Feller’s offered jury instructions, numbers 4 and 8?

In Feller’s first issue she claims the District Court incorrectly allowed the introduction of Dr. Ray’s deposition testimony. Initially, we note that “questions of the admissibility of evidence are left largely to the sound discretion of the trial court ...” Britton v. Farmer’s Insurance Group (Mont. 1986), [221 Mont. 67,] 721 P.2d 303, 315, 43 St.Rep. 641, 654; Cooper v. Rosston (Mont. 1988), [232 Mont. 186,] 756 P.2d 1125, 45 St.Rep. 978; Cech v. State (1979), 184 Mont. 522, 604 P.2d 97. The district court’s decision in such evidentiary matters will be subject to review only in cases of manifest abuse of that discretion. Britton, 721 P.2d at 315; Cooper, 756 P.2d at 1127.

The purpose of the motion in limine is to prevent the introduction of evidence which is irrelevant, immaterial or unfairly prejudicial. Wallin v. Kenyon Estate (1974), 164 Mont. 160, 165, 519 P.2d 1236, 1238. This Court thus has held that the authority to grant or deny a motion in limine “rests in the inherent power of the court to admit or exclude evidence and to take such precautions as are necessary to afford a fair trial for all parties.” Wallin, 519 P.2d at 1238.

Feller claims the court abused its discretion in denying the motion in limine for the following reasons. Dr. Ray’s testimony did not tend to prove or disprove any of the elements of this case. Dr. Ray was not Feller’s attending physician. Dr. Ray was not hired by either the plaintiff or defendant as an independent expert. Dr. Ray’s testimony would be highly prejudicial and would have no true value to the litigation. And, Dr. Ray only saw Feller for fifteen minutes on one occasion.

The trial in this case dealt with two central issues. As the defendant admitted liability, the jury was charged with determining the extent of Feller’s injuries which resulted from the accident and what compensation was reasonable and necessary to fully compensate her for the injuries sustained.

Dr. Ray’s testimony was presented for the purpose of impeaching the credibility of Feller and Dr. Asbury, her treating physician. Specifically, Dr. Ray’s testimony contradicts their testimony regarding the extent of Feller’s injury three days after the accident. In Cooper, this Court examined a district court’s exclusion of testimony relating to a witness’s credibility. Cooper, 756 P.2d at 1127-1128. There we examined § 26-1-302, MCA, which provides that while a witness is presumed to speak the truth, that presumption may be overcome “by any matter that has a tendency to disprove the truthfulness of a witness’s testimony;” including “evidence contradicting the witness’s testimony.” Section 26-1-302(9), MCA. We also found Rule 401, M.R.Evid., provides that:

“ ‘[r]elevant evidence may include evidence bearing upon the credibility of a witness or declarant.’ Credibility evidence, though relevant, ‘may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . .’ Rule 403, M.R.Evid.”

Cooper, 756 P.2d at 1120. As the jury is the exclusive judge of a witness’s credibility § 26-1-302, MCA, the district court is obliged to admit evidence bearing on that credibility. Cooper, 756 P.2d at 1128.

Dr. Ray’s testimony in this case goes directly to the credibility of witnesses for the appellant. As such, his testimony is relevant. Rule 401, M.R.Evid. Further, his testimony is probative of the issues before the court on the extent of Feller’s injuries. We find that this testimony is not so unfairly prejudicial that it substantially outweighs its probative value. Rule 403, M.R.Evid.; Cooper, 756 P.2d at 1128. The record shows Feller herself solicited the additional medical examination after the accident. Her own physician testified that his examinations were routinely completed in 10-15 minutes. The fact that the examination failed to support her position is insufficient to exclude this testimony. We find the District Court correctly allowed the introduction of Dr. Ray’s deposition.

Feller’s second contention is that the District Court abused its discretion in denying her motion for a new trial. Feller’s primary complaint on this issue is based upon her contention that the jury returned an inadequate damage award. She maintains the award of $7,837.49 is contrary to all the evidence presented at trial.

Recently, this court reviewed another district court’s denial of a motion for a new trial. Tope v. Taylor (Mont. 1988), [235 Mont. 124,] 768 P.2d 845, 45 St.Rep. 2242. There we reiterated that the decision to grant or deny a new trial is within the sound discretion of the trial court, and this Court will not overturn, absent a showing of manifest abuse of that discretion. Tope, 768 P.2d at 849-850, 45 St.Rep. at 2248, citing Walter v. Evans Products Co. (1983), 207 Mont. 26, 672 P.2d 613. “The lower court’s discretion to grant a new trial for insufficiency of the evidence is exhausted when it finds substantial evidence to support the verdict.” Tope, 768 P.2d at 850, 45 St.Rep. at 2248, citing Lindquist v. Moran (1983), 203 Mont. 268, 662 P.2d 281. We are also constrained to view the evidence in a light most favorable to the prevailing party at trial, when making our determination of whether the record supports the adequacy of an award. Walls v. Rue (Mont. 1988), [233 Mont. 236,] 759 P.2d 169, 171, 45 St.Rep. 1451, 1455, citing Lauman v. Lee (Mont. 1981), [-Mont._,] 626 P.2d 830, 41 St.Rep. 499, 502.

In the present case, the parties presented conflicting medical testimony on the extent of Feller’s injuries. This conflict of the evidence was also present in the lay witness testimony. When faced with a similar conflict under similar facts, this Court stated:

“Apparently the jury concluded that in certain medical aspects, testimony submitted in behalf of the defendant was more believable than that of the plaintiff. That was the function of the jury. As we review this evidence submitted on behalf of the defendant, we conclude that it was clearly substantial. The evidence which supports the verdict was presented by a well-qualified medical doctor, who was adequately examined and cross-examined to establish the contentions on the part of the defendant with regard to the nature of the injury and the degree of disability. We conclude that there clearly was substantial credible evidence to support the verdict of the jury.”

Brown by Brown v. Markve (1985), 216 Mont. 145, 148. 700 P.2d 602, 604.

As in Brown, we conclude substantial credible evidence exists to support the verdict of the jury. Dr. Ray gave an opinion as to the extent of Feller’s injuries after examining her history, noting her symptoms and complaints, performing a 15-30 minute examination of her three days after the accident and viewing x-rays of her taken shortly after the accident. His opinion was that:

“Having gone over her x-rays and I see no abnormalities in the skull or cervical spine and I find no hard evidence of neurologic deficit. I do find evidence that the patient is exaggerating her symptomatology and that she is refusing to move her neck and is claiming far more than could be related to the rear-end motor vehicle accident.
“The fact that she is receiving medications from three physicians, none of whom know what is being done by the other ones, and I told her that I did not want to get involved in her medical care, and that she was evaluated only and no treatment was rendered. A copy of this is being sent to Dr. Asbury, whom the patient says is her primary treating physician.”

Dr. Ray’s testimony is supported by the video deposition testimony of Dr. Meyer that Feller was not suffering due to injuries which he would attribute to the accident, but rather to depression caused by the extended medication prescribed by Dr. Asbury. Dr. Meyer examined Feller approximately 18 months after the accident when Dr. Asbury referred Feller to him for a neurological examination. Additionally, Fox introduced the testimony of a private investigator who observed Feller at work on two separate occasions shortly before the trial. His testimony conflicted with that of Feller and others who testified on her abilities to complete certain physical tasks at work. Also, on cross-examination of Feller at trial, Fox’s attorney brought the jury’s attention to a number of discrepancies between Feller’s trial testimony and previous deposition testimony.

Fox introduced sufficient credible evidence for the jury to conclude Feller’s injuries were not as extensive as she herself claimed. We find no manifest abuse of discretion on the part of the District Court in denying Feller’s motion for a new trial.

Feller’s final contention is that the District Court erred in failing to give plaintiff’s offered jury instructions, numbers 4 and 8. When examining whether or not certain jury instructions were properly, given or refused, we must consider the jury instructions in their entirety, and in connection with the other instructions given and the evidence introduced at trial. Brothers v. Town of Virginia City (1976), 171 Mont. 352, 359, 558 P.2d 464, 468. Where the instructions presented to the jury state the applicable law, “a party cannot claim reversible error as to the giving or denying of certain instructions.” Id., citing Franck v. Hudson (1962), 140 Mont. 480, 373 P.2d 951.

Our review of the jury instructions leads us to conclude that the instructions adequately covered the law applicable to the case. Feller’s proposed instruction number 4, that proof may be based on subjective symptoms, was adequately covered in the court’s instructions numbers 3, 5, 11, 15, and 18. Further, the District Court correctly found the proposed instruction had no basis in Montana law (“i.e., sources for the instruction were from California cases with the most recent being 1963”). Feller’s proposed instruction number 8 on loss of established course of life and expenses, was offered without citing to any authority. Additionally, number 8 was adequately covered by the court’s instructions numbers 10, 12, 13, 14, 15 and 16.

We do not find reversible error from our review of the jury instructions. Finding that the testimony of Dr. Ray was properly admitted, that substantial credible evidence existed supporting the jury’s verdict, and that the jury was adequately instructed on the applicable law, we affirm the District Court’s denial of appellant’s motion in limine and motion for a new trial.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and HUNT concur.


author: MR. CHIEF JUSTICE TURNAGE

text:
    In re the MARRIAGE OF KATHRYN K. STEPHENSON, Petitioner and Respondent, and SAM STEPHENSON, III, Respondent and Appellant.
    No. 88-417.
    Submitted on Briefs March 23, 1989.
    Decided April 25, 1989.
    772 P.2d 846.

      Michael J. McKeon, Anaconda, for respondent and appellant.
    Mark A. Vucurovich, Henningsen, Purcell, Vucurovich & Richardson, Butte, for petitioner and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Petitioner, Kathryn K. Stephenson, filed for divorce from her husband of twenty-one years in 1986. The dissolution was tried on May 12, 1988, in the District Court of the Second Judicial District, County of Silver Bow. Judge Arnold Olsen divided the marital assets and provided maintenance to petitioner. Appellant, Sam Stephenson, III, appeals the findings of the court. We affirm.

Appellant asks us to resolve three issues in dispute:

1. Whether the District Court, in a dissolution of marriage proceeding, erred in not making a specific finding of net worth for the purpose of separating marital assets.

2. Whether the District Court erred in the award of maintenance to petitioner.

3. Whether the District Court erred in awarding one-half of husband’s inheritance to wife.

The District Court entered findings of fact and conclusions of law on June 29, 1988, separating the marital estate and providing maintenance for petitioner, Kathryn Stephenson (Kathryn). During the time that the parties were married, respondent Sam Stephenson (Sam) was employed with Atlantic Richfield Company as an environmental coordinator. Kathryn graduated from high school prior to the marriage but attained no further degrees, nor does she have any job experience. Kathryn was mother and housewife during the marriage.

When the parties separated, both children were over eighteen years of age but continue to live with Kathryn.

On June 29, 1988, the findings of fact and conclusions of law were filed by the District Court. In dispensing the marital assets to the parties, the court did not make a determination of the net worth of the parties. Instead, Judge Olsen distributed the assets without calculating the net worth. The following is a list of the property divided from the marital estate:

(1) extensive gun collection of Sam’s acquired during marriage to be appraised and Sam would get the gun collection;

(2) husband received all household furnishings located in the cabin at Elk Park, all mechanical tools, milling machine, lathe and accessories;

(3) husband received 1986 Ford pickup, 1972 Kawasaki, 1971 Suzuki motorcycle, 1969 Bell trailer, and 1976 Layton trailer;

(4) wife received household furnishings in the Butte family residence and all household yard tools and equipment;

(5) stocks valued in excess of $54,000 and a money market account with Piper, Jaffray and Hopwood was equally divided between the parties;

(6) husband awarded the cabin and thirty-eight acres located at Elk Park, Jefferson County;

(7) wife awarded family residence in Butte;

(8) all debts of the marriage the responsibility of the husband;

(9) Kathryn was awarded the sum of $750 per month for at least five years, until she could rehabilitate herself;

(10) Sam was also required to pay the house payments of $244 a month.

Sam contends that the stocks valued at $54,000 and the cabin at Elk Park were inherited by him in 1981 and are his sole and exclusive property. These, he asserts, should not be included in the marital estate.

The first issue is whether the District Court erred in not determining the net worth of the marital estate. Appellant Sam contends that if the District Court does not appraise the value of all the assets from the marriage, the Supreme Court cannot review the division of property to determine whether it was equitable or arbitrary.

The standard of review by which we judge the District Court’s determination, as adopted by this Court in In re the Marriage of Stewart (Mont. 1988), [232 Mont. 40,] 757 P.2d 765, 45 St.Rep. 850 is:

“[that the] District Court has far-reaching discretion in dividing the marital property. Our standard of review is that the District Court’s judgment, when based upon substantial credible evidence, will not be altered unless a clear abuse of discretion is shown.”

Stewart, 757 P.2d at 767, 45 St.Rep. at 852; Marriage of Watson (Mont. 1987), [227 Mont. 383,] 739 P.2d 951, 954, 44 St.Rep. 1167, 1170.

Section 40-4-202(1), MCA, provides that in a proceeding for division of property, the court shall “equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.” The statute does not specifically require the District Court to determine the net worth of the assets of the parties. We have specifically held in previous cases that the District Court must determine the net worth. As a guideline, it is helpful to this Court in reviewing the findings of fact and conclusions of law of the District Court that a determination of net worth is made, but in this case it is not imperative. The test is whether the findings as a whole are sufficient to determine the net worth and to decide whether the distribution was equitable. Nunally v. Nunally (Mont. 1981), [_Mont__,] 625 P.2d 1159, 1161, 38 St.Rep. 529, 531.

We hold that the District Court in this case made an equitable distribution of the assets of the Stephensons and did not abuse its discretion in not determining a net worth of the assets. In reviewing the assets of the parties and the distribution by the court, each party received an equitable portion of the marital estate. “Here, the emphasis placed on the parties’ needs and their relative financial situations indicates a careful exercise of the court’s discretion.” Bailey v. Bailey (1979), 184 Mont. 418, 420, 603 P.2d 259, 260.

The second issue is whether the District Court erred in awarding Kathryn maintenance of $750 per month.

Sam contends that Kathryn has done nothing to “rehabilitate” herself in the two years since the dissolution of the marriage. However, Kathryn has no training for employment and spent the twenty-one years of the marriage as a mother and a homemaker. The District Court established that she was to receive $750 per month for no less than five years. This, we believe, is a reasonable time for Kathryn to rehabilitate herself. Although Sam contends she is physically capable, good health alone is not enough for providing for oneself. Proper training for some employment is necessary in the rehabilitation process.

Section 40-4-203, MCA, directs under what circumstances maintenance can be awarded. The court can order maintenance for either spouse only if it finds that the spouse seeking maintenance:

“(l)(a) lacks sufficient property to provide for his reasonable needs; and
“(b) is unable to support himself through appropriate employment
“(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
“(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently . . .
“(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
“(c) the standard of living established during the marriage;
“(d) the duration of the marriage;
“(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
“(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

Maintenance is necessary in the case at bar, and we hold that the District Court made a just determination. The court did not abuse its discretion.

The third issue is whether the District court erred in awarding one-half of Sam’s inheritance to Kathryn.

In 1981, Sam inherited $50,000 worth of stocks and bonds, and real estate located at Elk Park in Jefferson County, valued at approximately $20,000. Sam contends that Kathryn has not participated in the enhancement of the stocks and bonds and has not contributed to the maintenance of the Elk Park property. The District Court, though, included both of these inheritances in the assets of the marital estate. The court divided equally the $54,000 value of the stocks and bonds. The court awarded the husband the Elk Park property. It is Sam’s contention that the property is exclusively his and should not be considered in the division of property.

“In dividing property in a marriage dissolution the District Court has far-reaching discretion and its judgment will not be altered without a showing of clear abuse of discretion. The test of abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in a substantial injustice.”

Becker v. Becker (1985), 218 Mont. 229, 232, 707 P.2d 526, 528; In re the Marriage of Rolf (1985), 216 Mont. 39, 45, 699 P.2d 79, 83, citing In re the Marriage of Vert (1984), 210 Mont. 24, 680 P.2d 587.

Section 40-4-202(l)(a), MCA, provides that in dividing property acquired by gift, bequest, devise or descent, the court shall consider the contributions of the other spouse, including nonmonetary contribution of the homemaker contributions facilitating the maintenance of the property. The determining factor is whether an equitable distribution was made and within the bounds of reason. In this case, we hold that the District Court did not abuse its discretion and acted soundly in dividing the marital assets.

Affirmed.

MR. JUSTICES SHEEHY, McDONOUGH, GULBRANDSON and WEBER concur.