I N THE S P E E COURT O THE STATE OF MONTANA
URM F
No. 12623
ROBERT L. WOODAHL, a s Attorney
General of t h e S t a t e of Montana,
P l a i n t i f f and R e l a t o r ,
VS.
MONTANA BOARD O NATURAL RESOURCES
F
AND CONSERVATION, e t a l . ,
Defendants and Respondents.
O R D E R
PER CURIAM:
I t i s hereby ordered t h a t t h e above captioned opinion
be amended i n t h e following manner:
Delete t h e second complete paragraph on page 3 and
substitute therefor:
"Prior t o t h e adversary h e a r i n g , t h e S e c r e t a r y of
S t a t e and S t a t e Auditor f i l e d appearances pro s e
agreeing w i t h t h e p o s i t i o n of t h e Attorney General.
The Department of S t a t e Lands was served, appeared
and l a t e r withdrew i t s appearance. A l l o t h e r de-
fendants and respondents joined i n f i l i n g a response
t o t h e o r d e r , p e t i t i o n and complaint. 11
DATED t h i s 3rd day of December, 1973.
FILED
R.C.M. 1947, and such department heads are hereby joined
herein as defendants and respondents.
2. Under the provisions of section 82A-105, R.C.M.
1947, whenever a conflict arises as to the administration of
the policies of the executive branch of state government, ex-
cept for conflicts arising in the office of the lieutenant
governor, secretary of state, attorney general, auditor, and
superintendent of public instruction, the governor shall re-
solve the conflict, and the decision of the governor is final,
and for this reason he should be, and hereby is, joined herein
as a defendant and respondent.
3. Since there may be conflicts arising in this area
in the offices of the lieutenant governor, secretary of state,
auditor, or superintendent of public instruction with respect
to the position taken by plaintiff and relator attorney general,
each of said elective officers should be, and hereby is, joined
herein as a defendant and respondent.
4. That any and all further proceedings in The Montana
Department of Natural Resources and Conservation v. Intake Water
-.
co 8
civil cause no. 9441-A, in and for the County of Dawson, be
stayed pending the further order of this Court;
5. That relator serve a copy of this order, the petition,
complaint, and brief in support thereof, upon respondents and
all the other parties herein ordered joined as defendants and
respondents within three days.
6. That respondents may prepare, serve and file any
motion or pleading, without waiver, on or before three days
prior to the date set for hearing, effecting service upon appear-
ing opposing counsel, which appearing counsel shall file such
appearance with the clerk of this Court and from whom a list of
such may be obtained. All motions, pleadings and briefs may be
in typewritten form.
7. That counsel for relator and counsel for appearing
respondents be and appear before this Court at the hour of
9:30 a.m. on the 8th day of November, 1973, in oral adversary
argument for or against the relief sought by the petition.
8. The clerk shall forthwith forward a copy of this
Order to Honorable L. C. Gulbrandson.
DATED t of October, 1973.
I N T E SUPREME COURT O THE STATE 0
H F
PILED
CT
0 T NA
0 2 5 1973
No. 12623 3'komad 3.-kLW9
CLERK Qf SUPREMS q
ROBERT L . W O A L as A t t o r n e y G e n e r a l o f thes%%$@
Montana,
O D H, wmm
P l a i n t i f f and R e l a t o r ,
VS.
M N A A BOARD O N T R L RESOURCES AND CONSERVATION and
OTN F AU A
JOSEPH W. SABOL, Chairman, O E E . SOWERWINE, DR. WILSON
WN
F. CLARK,D A HANSON, RILEY OSTBY, CECIL WEEDING and
EN
DAVID DRUM, a s members o f t h e MONTANA BOARD O N T R L F AU A
RESOURCES AND CONSERVATION; and t h e M N A A DEPARTMENT OTN
O N T R L RESOURCES AND CONSERVATION and GARY J . WICKS,
F AU A
Director o f t h e MONTANA DEPARTMENT O NATURAL RESOURCES F
AND CONSERVATION, and s u c h o t h e r e l e c t e d o f f i c i a l s , d e -
p a r t m e n t s , a g e n c i e s , b o a r d s , and commissions o f t h e
e x e c u t i v e b r a n c h of s t a t e government s i m i l a r l y s i t u a t e d ,
D e f e n d a n t s and R e s p o n d e n t s .
O R D E R
R o b e r t L. Woodahl, A t t o r n e y G e n e r a l o f t h e S t a t e o f
Montana, h a v i n g f i l e d w i t h t h i s C o u r t a p e t i t i o n r e q u e s t i n g
l e a v e t o f i l e a c o m p l a i n t s e e k i n g a d e c l a r a t o r y judgment o f
c e r t a i n q u e s t i o n s r e l a t i v e t o t h e a u t h o r i t y of Montana's
a t t o r n e y g e n e r a l a s more f u l l y s e t f o r t h i n t h e c o m p l a i n t
t e n d e r e d t h e r e w i t h , and c o u n s e l f o r r e l a t o r h a v i n g been h e a r d
ex p a r t e , I T I S ORDERED:
1. T h a t p r i o r t o any f u r t h e r c o n s i d e r a t i o n o f t h e
p e t i t i o n f i l e d h e r e i n , an a d v e r s a r y h e a r i n g be h e l d wherein a l l
p a r t i e s named i n t h i s c a u s e may be h e a r d , i n c l u d i n g t h e o t h e r
o f f i c i a l s , d e p a r t m e n t s , a g e n c i e s , b o a r d s and commissions o f t h e
e x e c u t i v e b r a n c h of s t a t e government s i m i l a r l y s i t u a t e d , who
s h a l l i n a l l i n s t a n c e s be r e p r e s e n t e d by t h e d e p a r t m e n t head of
t h e various departments c r e a t e d by and l i s t e d i n s e c t i o n 82A-104,
No. 12623
I N THE SU3REME COURT OF THE STATE O M N A A
F OTN
ROBERT L. WOODAHL, a s A t t o r n e y
G e n e r a l of t h e S t a t e o f Montana,
P l a i n t i f f and R e l a t o r ,
M N A A BOARD O NATURAL RESOURCES
OTN F
AND CONSERVATION,et a l . ,
Defendants and Respondents.
ORIGINAL PROCEEDING:
Counsel o f Record:
For R e l a t o r :
Hon. Robert L . Woodahl, A t t o r n e y G e n e r a l , a p p e a r e d ,
Helena, Montana - & t . %A _4~
~t 0
Walter M u r f i t t , Special/ Attorney General, argued,
Helena, Montana
J o h n P. Connor, J r . and J . C . W e i n g a r t n e r a p p e a r e d ,
A s s i s t a n t s A t t o r n e y G e n e r a l , Helena, Montana
F o r Responderlts :
Donald A. G a r r i t y a r g u e d , Helena, Montana
Donald A . Douglas a r g u e d , H e l e n a , Montana
J o h n Henson a r g u e d , Helena, Montana
Submitted : November 27, 1973
PER CURIAM:
This is an original proceeding for a declaratory judgment
by the Attorney General of the State of Montana against the Montana
Board of Natural Resources and Conservation and its individual
members; the Montana Department of Natural Resources and Conserva-
tion and its director; and other elected officials, departments,
agencies, boards, and commissions of the executive branch of state
government similarly situated.
The Attorney ~eneral's petition seeks leave to file an
original declaratory judgment action in this Court to determine
his right and authority to require all legal counsel appearing
in any judicial proceeding on behalf of elected officials, de-
partments, boards, agencies, or commissions of the executive
branch of state government to first secure a commission of author-
ity from the attorney general to so appear.
In his petition the Attorney General states his intention
to seek a judicial determination of his rights with respect to
the foregoing; attaches a complaint for declaratory judgment to
be filed with this Court to that end and incorporates it by re-
ference in his petition; and alleges that a judicial determina-
tion thereof by this Court is of such urgency that an original
proceeding in this Court is warranted.
The Attorney ~eneral'sattached complaint for declaratory
judgment alleges the constitutional, statutory, and common law
sources of his right and authority by virtue of his office; his
inability to properly carry out his duties and responsibilities
by reason of the actions of the Department of Natural Resources
and Conservation in civil cause 89441-A in the district court of
Dawson County; that of forty-nine licensed attorneys employed or
retained by the various departments, boards, agencies, and com-
missions of the executive branch of state government only twenty-
six have been commissioned by him; that by reason thereof he is
denied proper and necessary supervision of litigation as author-
ized by law; and that a controversy has arisen between the Attorney
General and defendants concerning the latter's authority to ini-
tiate judicial proceedings by counsel retained by them and not
commissioned by the Attorney General. The Attorney General seeks
a declaratory judgment from this Court determining that no at-
torney employed or retained by the defendants can appear for them
in any judicial proceeding without first securing a commission
from the Attorney General.
After ex parte presentation of the Attorney ~eneral's
petition and complaint, this Court ordered the matter set for
adversary hearing; ordered the Governor, Lieutenant Governor,
Secretary of State, State Auditor, Superintendent of Public In-
struction, and the department heads of the various departments
of the executive branch of state government enumerated in section
82A-104, R.C.M. 1947, joined as parties defendant and respondent;
stayed proceedings in civil cause /,,9441-A the district court
in
of Dawson County; provided for service of the petition, complaint,
briefs, and order upon all defendants and respondents; provided
for the filing of appearances, motions, and pleadings; and set
a time for oral adversary argument.
Prior to the adversary hearing, the Secretary of State and
State Auditor filed appearances pro se agreeing with the position
of the Attorney General. The Department of Revenue and the Depart-
ment of Social and Rehabilitation Services were served but did
not appear. All other defendants and respondents joined in filing
a response to the order, petition and complaint.
The response (1) sought dismissal as to the Department of
Highways on the basis that the issues as to that department were
previously adjudicated and concluded in Woodahl v. State Highway
Commission, 155 Mont. 32, 465 P.2d 818, decided by this Court on
March 6, 1970, (2) sought dismissal as to the Department of Natural
Resources and Conservation on the basis that the identical issue
is pending in civil cause /,9441-A in the district court of Dawson
County and such department has specific statutory authority to
prosecute that action with its own attorneys, (3) sought dismissal
as to all other defendants and respondents on the basis of absence
of a justiciable controversy, and ( ) answered the petition and
4
complaint by various admissions and denials.
The adversary hearing was held on November 8, 1973 and at the
conclusion thereof the matter was taken under advisement.
The first issue here is whether this Court should accept
jurisdiction of an original proceeding seeking declaratory
relief.
Rule 1 ( )
7a, Montana Rules of Appellate Civil Procedure,
provides in pertinent part:
"* * * The institution of * * * original
proceedings in the supreme court is some-
times justified by circumstances of an
emergency nature, as when a cause of action
or a right has arisen under conditions
making due consideration in the trial courts
and due appeal to this court an inadequate
remedy, or when supervision of a trial court
other than by appeal is deemed necessary or
proper. II
The jurisdiction of this Court to entertain an original
proceeding for declaratory relief and the circumstances under
which it will do so was recently set out in Forty-Second Legis-
lative Assembly v. Lennon, 156 Mont. 416, 421, 481 P.2d 330.
There, after reviewing our previous decisions on this question,
the Court said:
h he foregoing cases establish the original
jurisdiction of the Supreme Court in a declar-
atory judgment action where legal questions
of an emergency nature are presented and ordin-
ary legal procedures will not afford timely or
adequate relief. Such is the situation here.
We have an urgent emergency situation in view
of the mandatory legislation required of the
present session of the legislative assembly,
the absence of any factual controversy but only
pure legal questions that must ultimately be
answered by this Court in any event, and ordin-
ary legal procedures that will not afford timely
relief. I'
Thus to invoke the original jurisdiction of this Court in
a declaratory judgment action, petitioner must establish these
conditions: (1) that an emergency situation exists, (2) that
only legal questions without material factual controversies
exist, and (3) that ordinary legal procedures will not afford
timely relief.
Are these criteria satisfied in the instant case'? The
only emergency alleged in the proposed complaint relates to civil
cause #9441-A in the district court of Dawson County and its
effect upon the rights of the state in a case in federal court,
Cause /,1184,United States District Court, Billings Division.
The case in Dawson County district court is an action filed by
attorneys for the Department of Natural Resources and Conservation
who are not commissioned by the Attorney General to nullify a
claimed appropriation of Yellowstone River waters by Intake Water
Company, a Delaware corporation. Now pending before that court
is a motion by ~ntake'sattorneys challenging the authority of
the noncommissioned attorneys to represent the Department of
Natural Resources and Conservation and to stay further proceedings
until they produce their authority.
Although the Attorney General is not a party to that suit
and has not appeared therein, he has a clear right to do so and
secure an adjudication of the question he seeks to raise in the
instant case. This Court has previously held that the Attorney
General may "intervene in all suits or proceedings which are of
concern to the general public. 11 State ex rel. Olsen v. Public
Service Commission, 129 Mont. 106, 115, 283 P.2d 594.
Additionally, Rule 2 ( )
4a, Montana Rules Civil Procedure,
provides that anyone may intervene as a matter of right in an
action "when the applicant claims an interest relating to the
property or transaction which is the subject of the action and
he is so situated that the disposition of the action may as a
practical matter impair or impede his ability to protect that
interest, unless the applicant's interest is adequately repre-
sented by existing parties." We note the Attorney General is a
party defendant in the federal court action and thus in a position
to represent the state.
Nothing of an emergency nature is otherwise alleged in
the Attorney ~eneral's proposed complaint.
There also appear to be factual controversies involved.
The Department of Natural Resources and Conservation in its answer
denies several paragraphs of allegations, both legal and factual,
by the Attorney General in his proposed complaint. As an example
of factual controversies that exist, we note there is an apparent
dispute as to whether the Attorney General was advised in advance
of filing of the Department's plan to institute civil cause
#9441-A in the Dawson County district court; his previous referral
of actions against the Department to it for defense; and the
extent to which the Department has kept him posted on the progress
of the action and furnished him with copies of the pleadings io
enable him to exercise supervisory direction or control. This
Court is not the proper forum for the resolution of such factual
controversies in which the ultimate legal issues must be determined.
Finally, we fail to see where ordinary legal procedures
will not afford timely relief. The controversy as it affects the
Department of Natural Resources and Conservation is now before
the district court of Dawson County and can be determined there
and appealed, if necessary. The federal court suit is already
being defended by the Attorney General. No other presently existing
justiciable controversy is alleged against any of the other de-
fendants and respondents.
For the foregoing reasons, we decline to accept original
jurisdiction.