No. 85-624
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
MALTA IRRIGATION DISTRICT, GLASGOW
IRRIGATION DISTRICT, DODSON IRRIGATION
DISTRICT, ZURICH IRRIGATION DISTRICT,
HARLEM IRRIGATION DISTRICT, FORT BELKNAP
IRRIGATION DISTRICT, PARADISE VALLEY
IRRICATION DISTRICT, ALFALFA VALLEY
IRRIGATION DISTRICT,
Petitioners and Appellants,
MONTANA BOARD OF HEALTH AND ENVIRON-
MENTAL SCIENCES, an agency of the
STATE OF MONTANA, and its individual
members,
Respondent,
and
MONTANA RENEWABLE RESOURCES, INC.,
Real Party in Interest.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
F. Woodside Wright, Helena, Montana
Matthew W. Knierim, Glasgow,Montana
Douglas E. Davidson arqued; Bishop, Liberman & Cook,
New York, New York
For Respondent :
Allen P. Chronister argued, Agency Legal Services,
Helena, Montana
G. Steven Brown a.rgued, Helena, Montana
For Amicus Curiae:
Roger Tippy, City of Gillette, WY, Helena, Montana
Submitted: October 21, 1986
Decided: December 18, 1986
Filed: DEC 18 1986
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a denial of an application for a
writ of prohibition entered by the First Judicial District in
and for Lewis and Clark County. Petitioners sought to
restrain the Board of Health and Environmental Sciences from
reviewing an action talcen by the Department of Health and
Environmental Sciences. The District Court found that the
Board was acting within its jurisdiction and so refused to
issue the writ. We affirm.
This dispute involves three entities competing for the
mutually exclusive right to construct a hydroelectric
generation fa.cility at the federally owned and operated Tiber
Dam in Liberty County, Montana. The three competitors are
the Milk River Irrigation Districts (Districts), a consortium
of eight irrigation districts; Montana Renewable Resources
(MRR), a Montana limited partnership; and the City of
Gillette, Wyoming (Gillette) . The Districts, MRR and
Gillette have all applied and are in competition for a
license from the Federal Energy Regulatory Commission (FERC)
to construct and operate the proposed facility. A FERC
license will be issued to only one of the three applicants.
Section 401 of the Federal Water Pollution Control Act
amendments of 1972, 33 U.S.C. S 1341(a), requires that before
a federal agency may grant a permit or license authorizing
development of a facility, an applicant must provide
certification from the appropriate state agency that
discharges from the applicant's proposed project will comply
with the state's applicable water quality standards. The
federal licensing or permitting agency may not consider an
application unless a 401 certification has been obtain.ed.
It is this process of state "401 certification" that is
at issue. While other aspects of regulation of such
hydroelectric facilities have been preempted by Congress,
certification of water quality compliance largely rests with
the states. Montana, however, has failed to adopt any formal
rules to cover this certification process. 401
certifications are not mentioned anywhere in our statutes or
regulations and considerable disagreement exists over the
appropriate procedures to be used.
In the past, the state agency which has handled these
certification applications has been the Department of Health
and Environmental Sciences (Department) . The three
applicants accordingly each applied to the Department for 401
certification, and on May 14, 1984, the Department issued
certification to all three.
MRR, however, soon began to question whether its
competitors' projects actually complied with the state water
quality standards. MRR designed its project to utilize Tiber
Dam's existing low level or river outlet, through which is
released downstream the deeper, cooler water of the
reservoir. The Districts and Gillette, on the other hand,
proposed to use the dam's auxiliary or upper outlet. MRR
contended that its rivals, by using this auxiliary outlet,
would discharge water with significantly higher temperatures.
1 If no state agency issues such certifications, then the
Administrator of the Environmental Protection Agency
may issue it.
Water temperature is significant because of the existence,
immediately below the dam, of a thriving trout fishery which
requires relatively cooler water. The state, in an effort to
protect this fishery, enacted temperature restrictions on any
water to be released into the fishery. MRR argued that the
projects of its competitors would violate applicable state
water quality standards by releasing downstream water in
excess of these temperature limits and that their 401
certifications were therefore improperly granted.
Consequently, on October 2, 1984, NRR requested that
the Department reconsider its 401 certification of the
projects submitted by the Districts and Gillette. The
Department reviewed MRR's request for reconsideration, but on
November 27 refused to modify its decision. So in early
1985, MRR turned to the Board of Health and Environmental
Sciences (Board). On February 6, 1985, MRR formally
petitioned the Board for an appeal of the Department's
certification of the Districts and Gillette, or
alternatively, a declaratory ruling. In July, 1985, the
Board voted to schedule the matter for an evidentiary
hearing.
The Districts and Gillette responded on August 15,
1985, by filing applications in District Court for writs of
prohibition directing the Board to refrain from any further
proceedings with respect to their 401 certifications. The
District Court initially granted a temporary writ to both the
Districts and Gillette, but on September 19, 1985, quashed
the writs and dismissed the applications. It found that the
Board was acting within its jurisdiction and therefore
concluded that a writ of prohibition was unavailable.
The Districts now appeal, seeking review of the
District Court's denial of its petition for writ of
3
prohibition. " Meanwhile, the Board's consideration on the
merits has proceeded concurrently.
A writ of prohibition shall be granted only to halt
proceedings undertaken in the absence of jurisdiction,
§ 27-27-101, MCA, where there is no "plain, speedy, and
adequate remedy in the ordinary course of law. " Section
27-27-102, MCA. These principles frame the issues involved
herein.
As to water quality matters, the duties and
responsibilities of these two administrative entities a.re
recited under the Montana Water Quality chapter, S 75-5-101
et seq., MCA. A complete reading of this statutory chapter
illustrates that the legislature intended the Board to have
ultimate jurisdiction over general water quality compliance.
It is the Board which is charged with adopting rules for the
administration of the water quality statutes, S 75-5-201,
MCA. It is further charged with classifying all the waters
for the state and formulating water purity standards,
5 75-5-301, MCA, and is required to hold hearings therewith,
5 75-5-307, BICA. It must act as a shield against degradation
of water standards, 55 75-5-302, -303, MCA. It must set
stamdards for wastewater treatment, for effluents and for new
point discharges, S 75-5-304, MCA. It is required to set
rules governing the a.pplication for, and issuance,
continuance, modification, denial or revocation of permits,
S 75-5-401, MCA, though it may, or perhaps must, delegate the
2 The City of Gillette does not appeal, but joins this
appeal as an amicus.
hearing function on permits to the Department, 5 75-5-202,
MCA . If, acting under the Board's rules, the Department
denies, modifies, suspends or revokes a permit, there is an
appeal to the Board, upon which a hearing may be held,
5s 75-4-403, -404, MCA. When the Department charges
violation of water quality standards, the matter may be heard
and determined by the Board, $ 75-5-611
j and S 75-5-621, MCA.
Finally, it is the Board which is granted the generic
authorization to hold hearings necessary for the proper
administration of this chapter, 5 75-5-202, MCA.
Additionally, 5 50-1-301 (2), MCA, authorizes the Board
to "hold hearings, administer oaths, subpoena witnesses, and
take testimony in matters relating to the duties of the
board. "
Finally, it is the Board and not the Department which
the legislature designated as "quasi-judicial" under
140ntana1 Executive Reorganization Act, S 2-15-2104 (3), MCA.
s
As such it is empowered to undertake any "quasi.-judicial
function," defined in 5 2-15-102(9), MCA, as:
[Aln adjudicatory function exercised by
an agency, involving the exercise of
judgment and discretion in making
determinations in controversies. The
term includes but is not limited to the
functions of interpreting, applying, and
enforcing existing rules and laws;
granting or denying privileges, rights,
or benefits; issuing, suspending, or
revoking licenses, permits, and
certificates; determining rights and
interests of adverse parties; evaluating
and passing on facts; awarding
compensa.tion; fixing prices; ordering
action or abatement of action; adopting
procedural rules; holding hearings; and
any other act necessary to the
performance of a quasi-judicial function.
In short, we find that the Board is authorized by law
to exercise jurisdiction in this matter by holding its own
hearings on 401 certifications. This holding is entirely
consistent with the legislature's stated public policy of
advancing effective and responsive agency action. Section
2-15-101, MCA.
Even were we to decide this jurisdictional question
otherwise, we would nevertheless affirm the District Court's
denial of this petition, for the Districts enjoy an effective
remedy at law. This Court has previously expressed its
strong disinclination to favor writs of prohibition.
The writ of prohibition is not favored by
the courts. Necessity alone justifies
it. Although authorized by statute, it
is not issued as a matter of right, but
only in the exercise of sound judicial
discretion when there - - other
is no
remedy ...
It is justified only by extreme
necessity, when the grievance cannot be
redressed by ordinary proceedings at law
or by appeal ... (Emphasis in
original. )
Morse v. Justice Court (Mont. 1981), 626 P.2d 836, 837, 38
The Districts argue that despite this disinclination, a.
writ of prohibition is proper under these circumstances
because they lack a speedy and adequate remedy at law. MRR
argues that the Districts will have the remedy of judicial
appeal from any adverse decision rendered by the Board.
The right of judicial appeal can be a plain, speedy and
adequate remedy which precludes prohibition. Joslyn v. City
Court (1982), 198 Mont. 223, 645 P. 2d 428. Notwithstanding
the availability of this right, however, a writ of
prohibition may nevertheless issue when the appeal is neither
speedy nor adequate. Allen v. Madison County Commission
(Mont. 1984), 684 P.2d 1095, 41 St.Pep. 1226. We have long
held that a remedy is speedy when, having in mind the subject
matter involved, it can be pursued with expedition and
without essential detriment to the party aggrieved. A remedy
is neither speedy nor adequate if its slowness is likely to
produce immediate injury or mischief. Allen, 684 P.2d at
1100; Bradbrook v. City of Billings (1977), 174 Mont. 27, 30,
568 P.2d 527, 529; State ex rel. Taylor v. District Court
(1957), 131 Mont. 397, 402, 310 P.2d 779, 781.
For instance, in Allen, supra, we upheld the issuance
of a writ of prohibition which barred a county commission
from placing an unauthorized issue on an election ballot.
Petitioners in that case enjoyed a right of appeal, but were
required to await the outcome of the election and would have
then been required to challenge the election in the face of a
presumption of procedural validity. We found this remedy
inadequate because it could not have been pursued without
essential detriment to the petitioners. Allen, 684 P.2d at
1100.
Analogous situations are lacking in the instant case.
The Districts, following denial of their application for the
writ by the District Court, filed a cross-appeal with the
Board challenging MRR's 401 certification. The Board held a
contested case hearing in which the Districts, Gillette, and
MRR all participated. The Board reached a decision largely
adverse to the Districts and Gillette on June 4, 1986 and
scheduled the issuance of a final order for July 11, 1986.
Upon issuance of the final order, the judicial review
provisions of S 2-4-701 et seq., MCA, become applicable.
Moreover, we do not find that this right of appeal is
inadequate. The Districts have not presented any reasons why
judicial appeal would cause essential detriment. For
instance, we find no evidence--and the Districts have
presented none--which suggests that the Districts would
suffer substantive harm in the underlying federal proceeding
to determine who is awarded the FERC license. Inconvenience
alone does not suffice to invoke the extraordinary remedy of
prohibition.
The writ of prohibition will not be
issued as of course, nor because it may
he the most convenient remedy. Nor will
it be allowed to take the place of an
appeal ...
Lee v. Montana Livestock Sanitary Board (1959), 135 Mont.
The Districts have suggested, however, that the Board
erred in conducting a contested case hearing in this matter.
They find no statutory authorization necessarily entitling
MRR or any other party to a contested case proceeding before
the Board.
Whether the Board has authority to conduct a contested
case hearing must, of course, in the first instance be
decided by the Board. If, in this controversy, the Districts
disagree with the Board's determination, they should dispute
this issue through the standard judicial appellate process.
The Districts a x e asking this Court to address an issue about
which precious little has been spoken. We see little in the
record indicating that this question has been discussed and
addressed below. We are not prepared to decide this issue on
such an abbreviated record; rather, we require that this
question be filtered through the appellate process.
In short, the Districts are unpersuasive in their
contention that they lack an adequate and speedy remedy at
law. They enjoy the right of appeal from any adverse
decision reached subsequent to the contested case hearing and
have not shown that this right is not adequate or speedy.
We affirm the District Court's denial of this
application for writ of prohibition.