Opinion
DA 21-0535
11-15-2022
FLATHEAD LAKERS INC., a Montana non-profit public benefit corporation, AMY J. WALLER. STEVEN F. MOORE, CYNTHIA S. EDSTROM. ADELE ZIMMERMAN, MARTIN FULSAAS and GAIL A. WATSON-FULSAAS, LAUREL FULLERTON, ALAN and DEIRDRE COIT, and FRANK M. WOODS, Petitioners, Appellees, and Cross-Appellants, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, MONTANA ARTESIAN WATER COMPANY, Respondents, Appellants, and Cross-Appellees. WATER FOR FLATHEAD'S FUTURE, Intervenor and Appellee,
ORDER
Respondent, Appellant, and Cross-Appellee Montana Department of Natural Resources and Conservation (DNRC) moves to strike portions of the Reply Brief and Cross-Appeal Response Brief filed by Petitioners, Appellees, and Cross-Appellants Flathead Lakers, Inc., et al., and Intervenor and Appellee Water for Flathead's Future (collectively ''Appellees"), alleging that Appellees raised new issues in this brief. Appellees and Appellant Montana Artesian Water Company have responded in opposition to DNRC's motion.
The purpose of a reply brief is to respond to arguments raised in a response brief. WLW Realty Partners, LLC v. Cont'l Partners VIII, LLC, 2015 MT 312, ¶ 20, 381 Mont. 333, 360 P.3d 1112. M. R. App. P. 12(3) provides in part, "The reply brief must be confined to new matter raised in the brief of the appellee." We have held many times that we will not address the merits of an issue presented for the first time in a reply brief. State v. Makarchuk, 2009 MT 82, ¶ 19, 349 Mont. 507, 204 P.3d 1213 (citation omitted).
In Denend v. Bradford Roofing & Insulation, 218 Mont. 505, 710 P.2d 61 (1985), the appellee moved to strike the appellants' reply brief for failing to comply with M. R. App. P. 23(c), which M. R. App. P. 12(3) supersedes. This Court denied the motion, but stated it would not consider any portion of the reply brief that does not conform to the Rule. Since Denend, this Court has commonly declined to address arguments improperly raised for the first time in a reply brief, rather than granting motions to strike. E.g., Makarchuk, ¶¶ 19-20; Pengra v. State, 2000 MT 291, ¶ 13, 302 Mont. 276, 14, P.3d 499; Loney v. Milodragovich, Dale & Dye, PC, 273 Mont. 506, 512, 905 P.2d 158, 162 (1995); Torres v. State, 273 Mont. 83, 89, 902 P.2d 999, 1003 (1995). We will not deviate from such practice here.
This case has been fully briefed and is ready for the Court's consideration. Therefore, the Court will take the motion to strike under advisement for consideration with the merits of the appeal.
THEREFORE, IT IS ORDERED that the Motion to Strike is TAKEN UNDER ADVISEMENT.
The Clerk is listed to give notice of this Order to all counsel of record.