Kadillak v. Anaconda Co.

No. 14348
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979

GEORGE and MARIE KADILLAK,
husband and wife et al.,
Plaintiffs and Appellants,
-vs-
THE ANACONDA COMPANY et al.,
Defendants and Respondents.

Appeal from: District Court of the Second Judicial District,
Honorable Frank E. lair, Judge presiding.
Counsel of Record:
For Appellants:
McGarvey, Lence and Heberling, Kalispell, Montana
Dale L. McGarvey argued and Jon L. Heberling argued,
Kalispell, Montana
For Respondents:
Hon. Mike Greely, Attorney General, Helena, Montana
D. L. Holland argued, (Anaconda Co.) Butte, Montana
John North argued, (State Lands) Helena, Montana
Jack Holstrom argued, (State Highways) Helena, Montana
Stan Bradshaw argued (Dept. of Health) Helena, Montana

Submitted: June 15. 1979

Filed:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Plaintiffs appeal from a judgment of the District Court
of Silver Bow County denying them relief on their complaint
against the Anaconda Company and various state agencies relating
to the establishment and operation of a waste dump containing
overburden and discard from open pit mining operations in the
vicinity of their residences.
Early in the spring of 1974, residents of the Hillcrest
subdivision in Butte, Montana, learned from newspaper articles
that the Anaconda Company was contemplating mining activities in
close proximity to their homes. They were naturally concerned
about this prospect and contacted Anaconda officials and various
state agencies to voice that concern.
On June 6, 1974, Anaconda filed with the Department of
State Lands (State Lands) an application for a permit for mining
activities in the contested area. The application was in the form
of a request for an amendment to a previously held permit, Mining
Permit No. 41. State Lands was unsure whether such a procedure
was proper, so it requested an Attorney General's Opinion. After
an extended delay, the Attorney General rendered an opinion on
August 29, 1975, that acreage could not be added to a mining per-
mit by amendment; rather, a new operating permit must be applied
for to cover the new area.
On September 25, 1975, Anaconda officials met with State
Lands and it was agreed that the pending application for amend-
ment of Permit No. 41 would be considered the basis for an appli-
cation for a new permit called Permit 41A. Anaconda was to submit
a revised map showing the acreage to be included. That map was
received on October 22, 1975, at which time Wilbur Criswill,
State Lands Hard Rock Bureau Chief, deemed the application com-
plete. Ted Schwinden, at that time Commissioner of State Lands
determined that issuance of Permit 41A would be a major action of
state government with possible adverse environmental effects
requiring an impact statement under the Montana ~nvironmental
Policy Act (MEPA). Schwinden assigned the task of writing the
41A environmental impact statement (EIS) to Charles Van Hook, a
member of the staff of State Lands Reclamation ~ivision. The
41A EIS was the first EIS Van Hook had ever written.
Van Hook began work on the 41A EIS on November 25, 1975.
On December 4, he requested in a letter to Anaconda certain addi-
tional information on mining and reclamation plans "needed ...
to construct an accurate impact statement." Anaconda supplied
more data in response on December 9, but Van Hook still felt the
materials were deficient.
Subsequently, on or about December 15, 1975, Van Hook
submitted a memo to his superior at State Lands, C. C. McCall,
noting that his study of the application materials and the regu-
lations in regard to issuance of Hard Rock Permit 41A indicated
the application did not meet the requirements of the law in numer-
ous respects. McCall then drafted a memo to Commissioner Schwinden
detailing numerous specific areas where the application for Per-
mit 41A failed to meet the statutory requirements of the Hard
Rock Mining Act (HRMA) .
On December 15, 1975, the same date as the memo from McCall,
Schwinden summoned Anaconda representatives to a meeting to dis-
cuss the problems concerning the Permit 41A application. Van Hook
and McCall explained the areas of concern. That evening, Anaconda
officials spent several hours working up more data in response to
those problems, and on December 16 they submitted a mining plan
and some further information. This new data was incorporated in
the EIS which was mailed out on Friday, December 19. None of the
State Lands officials had time to check the new material against
the regulations and statutes for completeness before the EIS
went out. On December 22, 1975, Commissioner Schwinden approved
Permit 41A.
On January 5, 1976, an article appeared in the Billings
Gazette concerning plans of the Anaconda Company to construct
in the 41A Permit area a mountainous waste dump of overburden and
discard from open pit mining operations. The dump area approaches
within a quarter of a mile of homes in the Hillcrest subdivision.
The permit area comes to within 200 feet. On January 15 and 16,
1976, a representative of the Hillcrest residents contacted the
State Environmental Quality Control Council (EQC) about possible
irregularities in the issuance of Permit 41A. By letter dated
January 16, 1976, Steven J. Perlmutter, staff attorney for EQC,
replied to those inquiries, expressing the opinion that the pro-
cedure followed in issuing Permit 41A may indeed have violated
sections of the HRMA, MEPA, and the Montana Administrative Proced-
ures Act (MAPA).
The original complaint in this action was filed on March
12, 1976. The complaint was amended on May 26, 1976. The plain-
tiffs are approximately 125 property owners in the Hillcrest and
Continental Drive areas of Butte in close proximity to the waste
dump. The complaint is captioned "Complaint for Injunction" and
is framed in 14 separate causes of action. The relief sought is
revocation of Permit 41A and injunction against Anaconda prohibit-
ing mining activities in the 41A area until writs of mandate direc-
ted to State Lands to reconsider the permit in the light of MEPA
requirements and the HRMA, to DHES to require pollution permits,
and to the Department of Highways to prepare an EIS on the aban-
donment of U.S. 91, have been performed to the court's satisfac-
tion. No preliminary injunction was sought; work on Anaconda's
Hillcrest dump commenced in August or September, 1976, and con-
tinues, presumably, to the present. The dump is now a mountain
of substantial dimensions.
Trial of this cause commenced in Silver Bow County
District Court on August 22, 1977. It encompassed 13 days of
testimony and argument. After submission of briefs and consid-
eration of the case, the court filed findings of fact, conclu-
sions of law and a supporting memorandum on March 13, 1978. The
findings and conclusions address separately each of the causes
of action contained in the complaint. Judgment was subsequently
entered for defendants and against plaintiffs on all causes of
action, denying any relief.
The issues on appeal are:
1 Was an EIS required before Permit 41A issued and if
.
so, was the EIS which was prepared adequate under MEPA?
2. Was the application for Permit 41A deficient under the
Hard Rock Mining Act, and if so, was the granting of the permit by
State Lands in violation of a clear legal duty?
3. Were public notice and opportunity for hearing required
before Permit 41A was issued by State Lands?
4. Was Permit 41A invalid because a permit under the Clean
Air Act was not obtained?
5. Whether the Department of Highways was required to
prepare an EIS on the abandonment of U.S. 91 in conjunction with
Permit 41A, and whether the failure to do so renders the permit
invalid?
6. Is a writ of mandate a proper remedy?
7. Are plaintiffs entitled to attorney fees for enforce-
ment of their constitutional right to know under section 2-3-221,
MCA?
ENVIRONMENTAL IMPACT STATEMENT
The first issue is whether an EIS is required before grant-

ing a permit under the Hard Rock Mining Act (HRMA). We hold that
under the facts of this case an EIS was not required.
The Montana Environmental Policy Act (MEPA) provides, in
part:
"The legislature authorizes and directs that,
to the fullest extent possible:
"(1) the policies, regulations, and laws of the
state shall be interpreted and administered in
accordance with the policies set forth in this
chapter;
" ( 2 ) all agencies of the state shall:

"(c) include in every recommendation or report on
proposals for projects, programs, legislation, and
other major actions of state government signifi-
cantly affectins the aualitv of the human environ-
ment,* a detailei statgment :. .
" Section 75-1-201,
MCA. (Emphasis added.)
The action which allegedly affects this environment is the dump-
ing of overburden and other waste by the defendant Anaconda
Company. This can occur only in conformity with a permit granted
by the Board of Land Commissioners. Section 82-4-335, MCA. It
is well accepted that granting a permit or license to act is a
state action which must be accompanied by an EIS if the activity
it allows is capable of significantly affecting the human environ-
ment. Rodgers, Environmental Law, S7.6, pp. 761-63.
We fully recognize that not every action of state govern-
ment requires the preparation of an EIS. If the agency properly
decides that the action will not "significantly affect the human
environment" an EIS is not necessary.
In the instant case a mammoth project was proposed and
the Commissioner of State Lands was quite correct in deciding
that an EIS must precede the granting of a permit.
At the time application for Permit 41A was filed, the
Hard Rock Mining Act required:
"Upon receipt of an application for an operating
permit the mining site shall be inspected by the
department. Within sixty (60) days of receipt
 of the complete application and reclamation plan
by the board and receipt of the permit fee, the
board shall either issue an o~eratins permit-
the applicant or return any incomplete or inade-
-

quate application to the applicant along with a
descri~tionof the deficiencies. Failure of the
~ -

board ko so act within that period-shall consti-
tute approval of the application and the permit
shall be issued promptly thereafter." Section
82-4-337, MCA. (Emphasis added.)
The 60 day period is a woefully inadequate period for the prep-
aration of a proper EIS. As noted by the United States Supreme
Court, a draft EIS on simple projects prepared by experienced
personnel takes some three to five months to complete. Flint
Ridge Development Co. v. Scenic Rivers Assoc. (1976), 426 U.S.

fact was recognized by the legislature when in 1977 the statute
was amended to provide:
"If the department determines that additional
time is needed to review the application and
reclamation plan for a major operation, the
department and the applicant shall negotiate to
extend the 60-day period by not more than 365 days
in order to permit reasonable review." Section
82-4-337 (1)(b)(ii), MCA; Sec. 1, Ch. 427, Laws
of Montana (1977).
Testimony was presented and the District Court ruled that because
the 60 day period could not possibly accomncdate the preparation
of an EIS, an EIS was not required. This conclusion was reached
on the basis of Flint Ridge Development Co. v. Scenic Rivers Assoc.,
supra; and Moloney v. Kreps (D.N.J. 19771, 10 ERC 1773.
In Flint Ridge, the Court considered whether an EIS is re-
quired when the Secretary of Housing and Urban Development reviews
a disclosure statement under the Disclosure Act, which requires
land developers to file these statements for the information of
potential buyers. The developer may not sell or lease any lot
until the disclosure statement is approved by the Secretary. Once
the disclosure statement is filed with him, the Secretary has 30
days to approve or disapprove it. If the Secretary fails to act
within the 30 day period, the disclosure statement is deemed
automatically approved.
The Scenic River Association contended that the National
Environment Policy Act had the effect of authorizing the Secretary
to suspend the 30-day time limit while an EIS is prepared. In re-
jecting this argument, the United States Supreme Court stated:
"The Secretary cannot comply with the statutory
duty to allow statements of record to go into
effect within 30 days of filing, absent inaccu-
rate or incomplete disclosure, and simultaneously
prepare impact statements on proposed developments.
In these circumstances, we find that NEPA's impact
statement requirement is inapplicable." Flint Ridge,
426 U.S. at 791, 96 S.Ct. at 2440, 49 L Ed 2d at 218.
The high court noted the legislative intent behind the Act:
"The purpose of the new language is to make it
clear that each agency of the Federal Government
shall comply with the directives set out in
[5102(2)] unless the existing law applicable to
such agency's operations expressly prohibits or
makes full compliance with one of the directives
impossible. .
." Flint Ridge, 426 U.S. at 787-
788, 96 S.Ct. at 2438, 49 L Ed 2d at 216, citing
115 Cong. Rec. 29703 (1969). (Note: section 102 (2),
NEPA corresponds with section 75-1-201(1).(c), MCA,
which imposes the duty of preparing an EIS on state
agencies. )
The Court reasoned that: "Section 102 recognizes . . . that
where a clear and unavoidable conflict in statutory authority
exists, NEPA must give way." 426 U.S. at 788, 96 S.Ct. at 2438,
49 L Ed 2d 216. This statement has been cited in numerous cases
for the proposition that when a statutory time limit precludes
the statutory duty of preparing an EIS, the EIS must yield. The
federal courts have concluded that in such situations an EIS is
not necessary. See e.g. bloloney, 10 ERC 1773; Concerned about
Trident v. Rumsfeld (D.C.Cir.Ct. 1977), 555 F.2d 817, 823.
Under the facts of the instant case this Court holds that
an EIS was not required for the same reasons that an EIS was not
required in the Flint Ridge case. The language, "to the fullest
extent possible" is identical in both the NEPA and MEPA. The trial
court found that an adequate EIS would require 5 to 6 months
to complete and that an EIS for the Permit 4 1 project
~
could not have been prepared in 60 days.
Additionally, it is a well settled principle of stat-
utory construction that the specific statute will control the
general. State ex rel. Marlenee v. District Court (1979),
Mont. , 592 P.2d 153, at 156, 36 St.Rep. 457, at 461. At the
time of the filing of Permit 41A State Lands had a specific 60
day period within which to act. In comparison, the MEPA is
prefaced with the language, "to the fullest extent possible."
The MEPA is the general statute in these circumstances. ERMA is
the specific statute and controls in this case.
We emphasize that Flint Ridge and similar federal cases
are uniformly based on the unavoidable and irreconcilable conflict
between federal statutes. It was stated in the dissent to Montana
Wilderness Ass'n v. Bd. of Health and Environmental Sciences (1976),
171 Mont. 477, 506, 559 P.2d 1157, 1172, (Haswell J., dissenting):
"Because MEPA is modeled after NEPA, it is
appropriate to look to the federal interpre-
tation of NEPA. his Court follows the rule
.
7 . found in Ancient Order of Hiberians v. Sparrow
[1903], 29 Mont. 132, 135, 74 P. 197, 198:
11 I It ...
that the construction put upon stat-
utes by the courts of the state from which they
are borrowed is entitled to respectful consider-
ation, and ...
only strong reasons will warrant
a departure from it."'"
The appellants contend that a "strong reason" to depart
from the federal interpretation are the following sections in the
1972 Montana Constitution:
"All people are born free and have certain inalien-
able rights. They include the right to a clean
and healthful environment. . ."
1972 Mont. Const.,
Art. 11, 53.

"(1) The state and each person shall maintain and
improve a clean and healthful environment in Montana
for present and future generations.
"(2) The legislature shall provide for the adminis-
tration and enforcement of this duty.

"(3) The legislature shall provide adequate remedies
 for the protection of the environmental life
support system from degradation and provide
adequate remedies to prevent unreasonable de-
pletion and degradation of natural resources."
1972 Mont. Const., Art. IX, 51.
This argument, however, does not have sufficient merit
to compel this Court to abandon the rationaleof Flint Ridge.
Both the MEPA and the HN4A predate the new constitution. There
is no indication that the P I P was enacted to implement the new
IEA
constitutio..~al
guarantee of a "clean and healthful environment."
This Court finds that the statutory requirement of an EIS is not
given constitutional status by t-he subsequent enactment of this
constitutional guarantee. If the 1egj.slature had intended to give
an EIS constitutional status they could have done so after 1972.
It is not the function of this Court to insert into a statute
"what has been omitted." Security Bank v. Connors (1976), 170
Mont. 59, 67, 550 P.2d 1313, 1317. The ordinary rules of stat-
utory construction apply. An EIS was not a requirement at the
time Permit 41A was granted.
HARDROCK MINING ACT
The HRMA, section 82-4-301 et seq., MCA, provides in part
that "no person shall engage in mining in the state without first
obtaining an operating permit from the board to do so." Section
82-4-335, MCA. State Lands is given the responsibility of admin-
istering the HRbIA. Section 82-4-321, MCA. The application for a
permit under this Act must contain several specific items of in-
formation including a proposed reclamation plan, and a plan of
mining. Section 82-4-335, MCA.
Among other claims of error in issuing the permit, plain-
tiffs argue that there was no mining plan for 410 acres of the
500 acres included in Permit 41A. A review of the two-page mining
plan indicates that this is true. The application requested a
permit covering 500 acres, yet the mining plan only refers to 90
acres. Nothing is said about the plans for the other 410 acres.
Defendant State Lands argues that this deficiency can be cured
later by requiring Anaconda to submit a mining plan for the addi-
tional acres. It must be noted that the mining plan must be sub-
mitted before the permit is issued. To allow the issuance of a
permit for the entire 500 acres when there is a mining plan for
only 90 acres violates the express requirements of HRMA.
~lthoughthe deficiency of the mining plan is sufficient
grounds for voiding the permit, three other independent grounds
exist for invalidating it:
1 A reclamation plan must be included in every appli-
.
cation for a permit under the HRMA. Section 82-4-335(3), MCA.
Rule 5A3, A.R.M. 26-2.10(2) - S10030, requires that pertinent
climatic conditions be described in the reclamation plan. In the
Permit 41A application Anaconda devotes one sentence to climatic
conditions. This one sentence merely gives the annual rainfall
in the Butte area. There is no mention of temperature, wind
patterns or any other pertinent climatological data which would
give the agency an opportunity to correctly evaluate the proposed
uses of the reclaimed land. This one sentence description is
inadequate as a matter of law. For State Lands to approve this
description in light of the purposes for which this data must be
used is an abuse of discretion.
2. Section 82-4-303(10)(a) requires that the reclamation
plan include a "proposed subsequent use of the land after reclam-
ation." This is omitted from the Permit 41A reclamation plan.
There is a statement on page 1 of the plan that "upon termination
of mining and associated disturbances the Company will consider
offering the land for other uses."

This Court notes that a statement as to the subsequent use
of the disturbed land is central to any meaningful decision con-

cerning the adequacy of the reclamation plan. State Lands could
not possibly make an informed or adequate evaluation of the
reclamation plan unless they were given a sufficient statement
as to what the reclamation plan is supposed to accom~lish. To
allow the statement, "The Company will consider offering the
land for other uses" as an adequate statement of subsequent use
would be to make a mockery of the H-WIA. Such statement is inade-
quate as a matter of law.
3. Section 82-4-335(5), MCA, requires that a map be sub-
mitted showing the area which will be disturbed by the proposed
mining activity. In this case a map covering only 90 acres was
submitted and a permit for 500 acres was granted. This is a clear
violation of the HRMA.
For these reasons the permit was invalid. The present
mining operations on the 500 acres covered by Permit 41A cannot
be continued until an adequate application is made and a valid
permit pursuant to the HRMA is issued.
NOTICE AND HEARING
Plaintiff homeowners basically contend that Permit 41A
was invalid because State Lands did not give notice and offer an
opportunity for a hearing before the permit was issued. They
claim that they were denied their right to notice and partici-
pation which is granted by section 2-3-103(1), MCA. At the time
this action commenced the predecessor to this section (section
82-4228, R.C.M. 1947) did grant the public the right to have
notice and to participate in agency actions such as granting a
permit. It must be noted, though, that section 2-3-114 requires
that action must be taken in District Court within 30 days of the
date of decision. In the instant case, the permit was granted on
December 22, 1975, and the ~riginalcomplaint was filed on March
12, 1976. Thus, the District Court lacked jurisdiction to consider
plaintiffs' rights under this section.
Plaintiffs next contend that they were entitled to a hear-
ing under the MAPA. The applicable section reads:
 "Ln a contested case, all parties shall be afforded
an opportunity for hearing after reasonable notice."
Section 2-4-601, MCA.
"Contested case" is defined in the MAPA as follows:
"'Contested case' means any proceeding before an
agency in which a determin~tionof legal rights,
duties, or privileges of a party is required by
- to be made after an opportunity for hearing.
law
The term includes but is not restricted to rate
making, price fixing, and licensing." Section
2-4-102 (4), MCA.
Under the HRMA, as it existed at the time that these
events transpired, no opportunity for a hearing was required be-

fore the permit was issued. Consequently, this was not a contested
case under the HRMA, or under the MAPA. In fact if this had been
a "contested case" under the MAPA the District Court would have
been without jurisdiction to consider this case in the first in-
stance. Section 2-4-702(2)(a), MCA, provides that "proceedings
for review [of contested cases] shall be instituted by filing a
petition in district court within 30 days after service of the final
decision . . ."
Plaintiffs also contend that Article 11, Section 8, 1972
Mont. Const., provides authority for the proposition that they were
entitled to an opportunity to participate in the decision to grant
Permit 41A. This section says:
"Right of Participation. The public has the
right to expect governmental agencies to afford
such reasonable opportunity for citizen participation
in the operation of the agencies prior to the final
decision as may be provided by law." (Emphasis
added. )
Under this section the public's right to participate is limited
to those instances where that right is "provided by law." he
HRMA, as noted above, does not provide for public participation
in the decision making activity which proceeds the issuing of a
permit. In the instant case, this constitutional provision does
not support plaintiffs' contention.
CLEAN AIR ACT
The next issue raised by the plaintiffs is the failure of
the Department of Health and Environmental Sciences (DHES) to
control air pollution from the 41A dump area. Plaintiffs contend
that DHES has violated a clear legal duty controllable by a writ
of mandate.
Mandamus lies only to compel performance of a ministerial
duty and never to compel the performance of a duty or power that
requires the exercise of discretion. State ex rel. Wiedman v.
City of Kalispell (1969), 154 Mont. 31, 34, 459 P.2d 694, 696.
The relevant statute is section 75-2-204, MCA, which provides:
"The board may by rule prohibit the construction,
installation, alteration, or use of a machine,
equipment, device or facility which it finds may
directly or indirectly cause or contribute to
air pollution or which is intended primarily to
prevent or control the emission of air pollutants,
unless a permit therefore has been obtained."
The language of this statute is couched in terms which
clearly indicate a discretionary function. The statute begins,
"The board may . . ." This clearly indicates that the legisla-
ture was giving the DHES a discretionary duty in this respect.
Since the duty was discretionary rather than ministerial, a writ
of mandate cannot be issued against DHES.
THE DEPARTJ!/IENT OF HIGHWAYS
Plaintiffs contend that an EIS is required on the aban-
donment of U. S. Highway 91. This issue arose because the Permit
41A area is bisected by old U.S. 91. The highway itself is not
included in the requested permit area, but is bordered by the
permit area on each side. At the time Permit 41A was applied for,
Anaconda had in process a petition to abandon U. S. 91. The
evidence presented at the trial of this matter indicates that the
State Highway Commission had not yet made a decision whether to
abandon the highway. No evidence of the abandonment was before
the trial court.
On February 1, 1978, the Highway Commission entered an
order of abandonment on the 3.2 miles of U. S. 91 that passes
through the Permit 41A area, upon payment by Anaconda of $1.8
million. This occurred after judgment on this matter had been
entered by the District Court.
At the time this case went to trial, no final decision
had been made by the Highway Commission concerning the abandon-
ment of U. S. 91. Courts will not ordinarily administer judi-
cial remedies while the matter is pending in administrative pro-
ceedings. This deference on the part of courts "is generally
applied when the Court believes that consideration of policy
recommends that the issue be left to the administrative agency
for initial determination." Grever v. Idaho Telephone Co. (1972),
94 Idaho 900, 499 P.2d 1256, 1258.
Here the District Court was correct in ruling this issue
to have been prematurely submitted for review. It is a sound

policy that courts will not interfere with an agency proceeding
until there is final action by that agency on a particular matter.
MANDAMUS
Since this opinion affirms the judgment as to DHES and
the Highway Department, mandamus will be discussed only as it
applies to State Lands.
The statutory law concerning the writ of mandate in
Montana is contained at sections 27-26-101 et seq., MCA. Sec-
tion 27-26-102(1) provides in pertinent part that this writ I' ...
may be issued by the supreme court . . . to compel the perform-
ance of an act which the law specially enjoins as a duty result-
ing from an office, trust, or station . . ."
As stated by this Court in State ex rel. Swart v. Casne
(1977), 172 Mont. 302, 309, 564 P.2d 983, 987:
"The writ will issue only where the person seek-
ing to invoke it is entitled to have the defen-
dant perform a clear legal duty and there is no
speedy or adequate remedy in the ordinary course
of law. "
 In the instant case we hold that State Lands had a
clear legal duty to require that Anaconda submit the required
application before Permit 41A was issued. Section 82-4-337 (1)(a),

MCA,states the duty which is imposed upon State Lands when faced
with a deficient application. This statute states in part:
" ... the board shall either issue an oper-
ating permit to the applicant or return any
incomplete or inadequate application, along
with a description of the deficiencies ..."
(Emphasis added.)
State Lands1 duty when faced with a deficient application
(such as Anaconda's in this case) becomes readily apparent from
a reading of the statute. State Lands "shall , . . return a
incomplete or inadequate application." (Emphasis added.) If
the application is complete and adequate then State Lands "shall
.. . issue an operating permit." Anaconda's application was
obviously incomplete and inadequate. For State Lands to issue a
permit for 500 acres when the mining plan only covers 90 acres
constitutes a clear abuse of discretion and is a failure to per-
form a clear legal duty. State Lands had a clear legal duty to
return the application as incomplete and inadequate.
State Lands contends that mandamus cannot lie to correct
or undo an act already performed. Melton v. Oleson (1974), 165
Mont. 424, 432, 530 P.2d 466, 470. This is a correct statement
of the law. What this Court is mandating, however, is not the
undoing of an act. Rather, we are directing State Lands to per-
form an act which they have not done and which they had a clear
legal duty to do. They are to return the Permit 41A application
to Anaconda as inadequate and incomplete. Because the application
was not returned Permit 41A was void from the beginning and Ana-
conda may not continue the mining activities on the Permit 41A
area until a valid permit is granted by State Lands.
ATTORNEY FEES UNDER SECTION 2-3-221, MCA.
This issue need not be discussed, because attorney fees
are available to plaintiffs under the mandamus statutes, section
27-26-402, MCA.
In summary, we mandate that State Lands is to return the
application for Permit 41A as incomplete and inadequate. We
enjoin further use of the 41A area for mining operations until
a valid permit is issued by State Lands. The cause is remanded
to the District Court for an evidentiary hearing on attorney fees
which are granted to the prevailing party on a writ of mandate.
All other relief is denied.

Chief Justice

sitting in place of Mr. Justice
John C. Sheehy.

Mr. Justice Daniel J. Shea specially concurs and will file
an opinion later.