96-668
No. 96-668
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
SKYLINE SPORTSMEN'S ASSOCIATION,
ANACONDA SPORTSMEN'S CLUB,
MONTANA ACTION FOR ACCESS ASSOCIA-
TION, and COALITION FOR APPROPRIATE
MANAGEMENT OF STATE LANDS,
Plaintiffs and Appellants,
v.
BOARD OF LAND COMMISSIONERS;
DEPARTMENT OF NATURAL RESOURCES
AND CONSERVATION; and GOVERNOR MARC
RACICOT; JOSEPH P. MAZUREK, ATTORNEY
GENERAL; MIKE COONEY, SECRETARY OF
STATE; NANCY KEENAN, SUPERINTENDENT
OF PUBLIC INSTRUCTION; and MARK O'KEEFE,
STATE AUDITOR; in their capacities as Members
of the State Land Board,
Defendants and Respondents.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
MONTANANS FOR THE RESPONSIBLE
USE OF THE SCHOOL TRUST,
Intervenors,
v.
SKYLINE SPORTSMEN'S ASSOCIATION, et al.,
and BOARD OF LAND COMMISSIONERS, et al.,
Defendants in Intervention.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
Honorable John Thomas C. Honzel, Presiding.
COUNSEL OF RECORD:
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For Appellant:
Brian M. Morris (argued), Goetz, Madden & Dunn, Bozeman, Montana
For Respondent:
Tommy Butler (argued) and Richard E. Bach, Special Assistant
Attorneys General, Helena, Montana
Roy H. Andes (Intervenor) (argued), Missoula, Montana
Heard and Submitted: October 21, 1997
Decided: December 15, 1997
Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The District Court for the First Judicial District, Lewis and Clark County,
granted
Defendants' motion for summary judgment and denied Plaintiffs' request for a
preliminary injunction, dismissing a challenge to a proposed land exchange between
the
Board of Land Commissioners and Turner Enterprises, Inc. We vacate and remand.
The dispositive issue is whether the District Court erred by granting summary
judgment because Plaintiffs raised genuine issues of material fact.
Background
The Board of Land Commissioners (Board) is one of a handful of boards
established by the Montana Constitution. The Board has direct constitutional
authority
to lease, exchange, and sell state trust lands.
The governor, superintendent of public instruction, auditor, secretary
of state, and attorney general constitute the board of land commissioners.
It has the authority to direct, control, lease, exchange, and sell school lands
and lands which have been or may be granted for the support and benefit
of the various state educational institutions, under such regulations and
restrictions as may be provided by law.
Article X, Section 4, Mont. Const. In addition, Article X, Section 11(4), Mont.
Const.,
provides:
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All public land shall be classified by the board of land commissioners
in a manner provided by law. Any public land may be exchanged for other
land, public or private, which is equal in value and, as closely as possible,
equal in area.
Section 77-1-202(1), MCA, echoes the constitutional authority of the Board. It
states:
The board shall exercise general authority, direction, and control
over the care, management, and disposition of state lands and, subject to
the investment authority of the board of investments, the funds arising from
the leasing, use, sale, and disposition of those lands or otherwise coming
under its administration. In the exercise of these powers, the guiding
principle is that these lands and funds are held in trust for the support of
education and for the attainment of other worthy objects helpful to the well-
being of the people of this state as provided in The Enabling Act. The
board shall administer this trust to secure the largest measure of legitimate
and reasonable advantage to the state.
In 1993, Turner Enterprises, Inc. (Turner), submitted a proposal to the Board
to
exchange state school trust land located within the boundaries of Turner's Flying D
Ranch
southwest of Bozeman, Montana, for private land Turner owned elsewhere in Montana.
The original proposal was to exchange 7,486 acres of state land within the Flying D
Ranch for 12,689 acres of land Turner owned within the Snowcrest Ranch south of
Alder, Montana, and the Ulm Pishkun southwest of Great Falls, Montana. The
Department of Natural Resources and Conservation (Department) reviewed the proposal
and recommended that it be rejected as not assuring a "good deal" for the State when
all
attributes of the state lands were evaluated against the land proposed for state
acquisition.
Turner then modified its proposal by deleting from the proposed exchange two
sections of state lands within the Flying D Ranch. As modified, the proposal was to
exchange 6,167 acres of state land for 12,689 acres of private land. On April 15,
1996,
after review by the Department, solicitation of public comment, and preparation of an
environmental assessment (EA) as required under the Montana Environmental Policy Act,
õõ 75-1-101 through -324, MCA, the Board approved the modified proposal.
The plaintiff organizations of recreationists and sportsmen brought this
declaratory
judgment action arguing that the Board had overstepped its lawful discretion under
the
Montana Constitution because it did not exchange the state land "under such
regulations
and restrictions as may be provided by law." Article X, Section 4, Mont. Const.
Specifically, Plaintiffs argued that the Board did not comply with õ 77-2-203(2),
MCA:
If the requirements of subsection (1) and 77-2-204 are met, state
lands bordering on navigable lakes and streams or other bodies of water
with significant public use value may be exchanged for private land if the
private land borders on similar navigable lakes, streams, or other bodies of
water.
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The two most significant bodies of water on the private land owned by Turner are
Ledford Creek and Robb Creek, both of which are located on the Snowcrest Ranch.
Cherry Creek and Spanish Creek are the two most significant bodies of water on the
state
land proposed for exchange. Plaintiffs argued that while Cherry Creek and Spanish
Creek are streams with significant public use value, Ledford Creek and Robb Creek are
not.
The Plaintiffs pointed out that throughout the process of approving the land
exchange, the Board told them that õ 77-2-203(2), MCA, did not apply because "there
are no state lands bordering on a navigable lake or stream included in this proposed
exchange." Only on June 17, 1996, after Plaintiffs had filed this action, did the
Board
make supplementary findings on õ 77-2-203(2), MCA, including a finding that Robb
Creek and Ledford Creek have "the potential to provide significant public use
value."
MonTRUST, a non-profit citizens' organization promoting the protection,
advancement and appropriate use of Montana's school trust lands on behalf of public
education, was granted leave to intervene before the District Court. The Defendants
moved to dismiss the action or, in the alterative, for summary judgment. Intervenors
moved for summary judgment as well, while Plaintiffs moved for a preliminary
injunction
to prevent the exchange from proceeding during the pendency of this lawsuit. At a
hearing on all of the pending motions, the attorneys for the parties and for the
Intervenors
made oral argument. Additionally, Plaintiffs presented testimony of five witnesses
concerning the comparability of the bodies of water on the lands proposed for
exchange.
In a memorandum and order entered after the hearing, the court found that the
Plaintiffs had standing to bring this action but that the Board had adequately
considered
the requirements set forth at õ 77-2-203(2), MCA. Accordingly, the court granted the
Defendants' motion for summary judgment and denied the Plaintiffs' motion for a
preliminary injunction.
Discussion
Did the District Court err by granting summary judgment because Plaintiffs
raised
genuine issues of material fact?
Summary judgment is proper when there are no genuine issues of material fact
and
the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.
This Court's standard of review of a summary judgment is the same standard as that
employed by the district court--whether there are genuine issues of material fact
and the
moving party is entitled to judgment as a matter of law. Missoula Rural Fire Dist.
v.
City of Missoula (Mont. 1997), 938 P.2d 1328, 1329, 54 St.Rep. 480, 481.
The standard of review of an informal administrative decision is whether the
decision was arbitrary, capricious, or unlawful. North Fork Pres. v. Dept. of State
Lands (1989), 238 Mont. 451, 458-59, 778 P.2d 862, 867. It was appropriate for the
District Court, in applying that standard, to accept new evidence and not to limit
its
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review to the administrative record. In a proceeding to determine whether an agency
decision was arbitrary, capricious, or unlawful, unless the reviewing court looks
beyond
the record to determine what matters the agency should have considered, it is
impossible
for the court to determine whether the agency took into consideration all relevant
factors
in reaching its decision. ASARCO, Inc. v. U.S.E.P.A. (9th Cir. 1980), 616 F.2d 1153,
1160.
Combining the two applicable standards of review, the question before the
District Court and this Court is whether the Plaintiffs have established a genuine
issue of
material fact as to whether the Board's decision was arbitrary, capricious, or
unlawful.
In their brief and at oral argument, the Defendants pointed out that under
Montana's stream access law at õ 23-2-302(1), MCA, the effect of the proposed land
exchange on the availability of Cherry Creek and Spanish Creek to recreationists will
merely be fewer points of access; recreationists will retain the right to use the
creeks.
A condition to the exchange would be that public access to the creeks would be
maintained at legal access points. The Defendants also point out the "world-class
hunting
opportunities" on the Snowcrest Ranch, now privately-owned, but which would become
state land. The Defendants explain that a multitude of factors entered into the
evaluation
of whether the exchange serves the interests of the school trust beneficiaries and
provides
recreational opportunities for the public.
Similarly, the Intervenors argue that the Board's fiduciary duty to the trust
beneficiaries mandates approval of this proposed land exchange because the exchange
will
result in greater income to the beneficiaries, which the Intervenors argue is the
only
purpose of the trust. As a result of the exchange, the trust corpus would gain
$217,438
in value plus a projected additional $6,577 in annual income from hunting fees and
agricultural and grazing leases.
However, neither the Board's fiduciary duty to the trust beneficiaries nor the
other
factors which entered into its decision on this proposed land exchange relieves the
Board
of its constitutional obligation to follow the "regulations and restrictions"
imposed by the
Legislature on proposed land exchanges, including those found in õ 77-2-203(2), MCA.
We must presume that the Montana Legislature understood the effect of its action in
passing õ 77-2-203(2), MCA, a "regulation and restriction" which may constrict the
Board's discretion in managing state trust land. See Rider v. Cooney (1933), 94
Mont.
295, 310, 23 P.2d 261, 264 ("[t]he legislature is presumed to act, so far as mere
questions of policy are concerned, with full knowledge of the facts upon which its
legislation is based, and its conclusions on matters of policy are beyond judicial
consideration"). The Board cannot ignore the requirements set forth at õ 77-2-203
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(2),
MCA, simply because it believes that it otherwise received a "good deal" from the
proposed exchange.
The Board based its finding that Robb Creek and Ledford Creek have "the
potential to provide significant public use value" on the following factors:
(a) The exchange would result in additional mileage of stream ownership
than currently owned by the State;
(b) These creeks can provide good sport fisheries to the public; and
(c) Robb Creek contains a highly pure strain of native cutthroat trout which
is largely absent in either Cherry Creek or Spanish Creek.
As a preliminary matter, we note that õ 77-2-203(2), MCA, refers to "significant
public
use value," not potential for significant public use value.
The statement that Robb Creek and Ledford Creek had the potential to provide
significant public use value was buttressed first by the Board's finding that the
lands to
be received in the proposed exchange had more miles of streams. Additional stream
mileage alone does not equate to significant public use value.
The Plaintiffs point out that the EA of Robb Creek and Ledford Creek indicated
high levels of erosion and siltation, low fish numbers, and almost no public use.
The EA
discussed electroshock surveys undertaken by the Department of Fish, Wildlife & Parks
(DFWP). According to the DFWP's 1991 electroshock survey, Ledford Creek contained
approximately ten brown trout and five rainbow trout for every 1,000 feet of stream
and
Robb Creek contained thirty-seven brook trout and five westslope cutthroat trout per
1,000 feet of stream. In contrast, an electroshock survey undertaken on upper Cherry
Creek showed 237 rainbow trout and twenty-five brown trout; and on lower Cherry
Creek, 164 brown trout, 128 rainbow trout, and twenty-six mountain whitefish per
1,000
feet of stream.
Further, while the EA asserted that Robb Creek and Ledford Creek were important
spawning areas for fish living in the Ruby River, the Plaintiffs presented contrary
testimony at the District Court hearing. The two DFWP fisheries biologists upon
whose
study this assertion in the EA was based, Messrs. Brammer and Oswald, testified that
their studies did not cover Ledford Creek and Robb Creek but had focused instead on
areas of the Ruby River upstream. Brammer, to whom the EA attributed a statement
that
these creeks were important spawning areas, stated that he could not agree with the
statement attributed to him "because I don't have any evidence that would suggest
that's
the case." Oswald testified that he did not find any evidence of spawning from Ruby
River into Robb Creek and that any claim that Ledford Creek and Robb Creek are
important spawning areas "could not be supported by the current evidence that we
have."
The EA described Ledford Creek as "a good sport fishery with management
potential." However, both Brammer and Oswald testified before the District Court
that
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significant problems, including sedimentation, may prevent the development of Robb
Creek and Ledford Creek as sport fisheries. Furthermore, Oswald testified that DFWP
had absolutely no evidence from field reports or otherwise of anyone fishing in Robb
Creek or Ledford Creek.
The Plaintiffs presented several witnesses who testified that Spanish Creek and
Cherry Creek are excellent sport fisheries but that Robb and Ledford Creeks are not.
Among others, William Fairhurst, a retired military pilot and avid outdoorsman,
stated
by affidavit that both Spanish Creek and Cherry Creek are "pristine blue ribbon trout
streams with as good of fishing as can be found in the state." He stated that, in
contrast,
"Ledford Creek and Robb Creek contain insignificant water flow compared to Spanish
Creek and Cherry Creek, and, in fact, they are not reliable for fishing and water
throughout the year."
The Board's supplemental findings further stated that Robb Creek contains a
highly
pure strain of westslope cutthroat trout largely absent in either Cherry Creek or
Spanish
Creek. The Plaintiffs presented evidence to the District Court on this point as
well.
Brammer testified that a recovery program for westslope cutthroat trout in Robb Creek
would be speculative because of habitat degradation and a relatively higher density
of the
competi- tive brook trout. DFWP had no management plan in place for developing the
westslope cutthroat trout population in Robb Creek, and none was proposed at the time
of the hearing.
Additionally, at the hearing before the District Court, the Plaintiffs'
witnesses
raised valid questions about the extent to which access to Cherry Creek and Spanish
Creek would be available to the public under the stream access law. All of the above
factual issues must be viewed against the backdrop of a Board which maintained during
its decisionmaking process that õ 77-2-203(2), MCA, did not apply to this proposed
exchange, but when faced with this lawsuit abruptly changed its position and
belatedly
adopted findings relating to significant public use of the waters involved.
We conclude that Plaintiffs should be accorded an opportunity through full
discovery to explore the factual basis, or lack thereof, for the Board's finding
that Robb
Creek and Ledford Creek constitute bodies of water with significant public use
values.
The Plaintiffs have raised genuine issues of material fact as to whether Robb Creek
and
Ledford Creek are streams with significant public use value, including: whether a
"potential to" provide significant public use value is equivalent to providing
significant
public use value; the weight, if any, to be accorded an increase in stream mileage
under
state ownership as a result of the land exchange; the significance of the Robb Creek
westslope cutthroat trout population in light of the other facts and circumstances;
and the
truth of the claim in the EA that Ledford Creek can provide a good sport fishery to
the
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public. Because of these issues of fact, we hold that a material issue of fact
exists as to
whether the Board's decision approving the proposed land exchange was arbitrary,
capricious, and unlawful. Summary judgment was therefore improper.
Having determined that the District Court erred in granting summary judgment
for
the Board, we need not reach the other issues raised on appeal. We vacate the
summary
judgment and remand to District Court for further proceedings consistent with this
Opinion.
/S/ J. A. TURNAGE
We concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
Honorable Marc G. Buyske, District Judge, specially concurring.
I concur in the result of the majority opinion, but not in all that is stated
in that
opinion. I believe the path the majority chose to take to that result runs too
broadly
through a factual analysis and invites future litigants to view district court
proceedings
as a means to do what should have been done at the administrative agency level--
develop
the record. I would hold the District Court erred as a matter of law in concluding,
in
effect, the decision of the Board of Land Commissioners approving the land exchange
at
issue here was not arbitrary.
Although the matter was put before the District Court via a motion for summary
judgment, the District Court chose to consider and rule on the matter as a judicial
review
of the administrative decision of the Board. The District Court could not make
factual
findings as those would be beyond the purview of that proceeding, hence its decision
to
uphold the decision of the Board is one of law. This Courtþs review of legal
decisions
is plenary as no exercise of discretion is necessary to those decisions--the legal
conclusion is either correct or not. Hicklin v. CSC Logic, Inc. (Mont. 1997), 940
P.2d
447, 449, 54 St.Rep. 675, 676; Erickson v. State ex rel. Bd. of Medical Examiners
(Mont. 1997), 938 P.2d 625, 628, 54 St.Rep. 395, 396. When conducting its plenary
review of a district courtþs review of an informal administrative decision, this
Court
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follows the same standard as the district court, namely, does the record before the
administrative body establish it acted arbitrarily, capriciously, or unlawfully.
North Fork
Pres. v. Department of State Lands (1989), 238 Mont. 451, 458-59, 778 P.2d 862, 867.
The administrative decision is arbitrary and capricious if it was not based upon a
consideration of all relevant factors and if there has been a clear error of
judgment.
Citizens to Preserve Overton Park, Inc. v. Volpe (1971), 401 U.S. 402, 416, 91 S.Ct.
814, 823-24, 28 L.Ed.2d 136, 153.
The authority of the Board of Land Commissioners is established by the Montana
Constitution:
The governor, superintendent of public instruction, auditor, secretary
of state, and attorney general constitute the board of land commissioners.
It has the authority to direct, control, lease, exchange, and sell school lands
and lands which have been or may be granted for the support and benefit
of the various state educational institutions, under such regulations and
restrictions as may be provided by law.
Article X, Section 4, Mont. Const.
Section 77-1-202(1), MCA, echoes the constitutional authority of the Board when
it states:
The board shall exercise general authority, direction, and control
over the care, management, and disposition of state lands and, subject to
the investment authority of the board of investments, the funds arising
from the leasing, use, sale, and disposition of those lands or otherwise
coming under its administration. In the exercise of these powers, the
guiding principle is that these lands and funds are held in trust for the
support of education and for the attainment of other worthy objects helpful
to the well-being of the people of this state as provided in The Enabling
Act. The board shall administer this trust to secure the largest measure of
legitimate and reasonable advantage to the state.
A further þregulationþ or þrestrictionþ provided by law with respect to the actions
of the
Board is enumerated in õ 77-2-203(2), MCA:
If the requirements of subsection (1) and 77-2-204 are met, state
lands bordering on navigable lakes and streams or other bodies of water
with significant public use value may be exchanged for private land if the
private land borders on similar navigable lakes, streams, or other bodies of
water.
The record before the District Court and this Court makes clear the Board did
not
believe the requirements of õ 77-2-203(2), MCA, applied to this proposed land
exchange
transaction. Obviously, õ 77-2-203(2), MCA, does apply to this land exchange
transaction, and the conclusion of the Board to the contrary is a clear error of
legal
judgment. This error necessarily affected the development and consideration of the
record upon which the Board based its April 15, 1996, decision to approve the
exchange.
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The Board could not have considered the elements of õ 77-2-203(2), MCA, when its
decision was made as the Board did not understand õ 77-2-203(2), MCA, to apply to the
proposed transaction.
Applying the review standards noted above to this situation, I hope I restate
the
obvious when clarifying that an administrative board must consider relevant factors
prior
to reaching its decision and not after that decision has been made. In this case it
is
undisputed that the Board approved the land exchange and then considered the
similarity
of the significant public use values of the waterways in question. The supplementary
adoption of relevant evidence, when that evidence is statutorily required for lawful
decision making, is unacceptable.
The Board is entrusted by the public with fiduciary control over Montanaþs
public
trust land. To disregard a statute governing the maintenance of that trust in
reaching a
decision affecting the trust corpus, and then to provide after-the-fact-of-the-
decision
findings to justify compliance with the previously disregarded statute, is a not
insignifi-
cant breach of the Boardþs obligation to the public. Regardless of the manner in
which
the supplementary findings were adopted or the validity of facts supplemented to the
record, the process is of such unseemly appearance as to be arbitrary as a matter of
law.
The statute ignored by the Board in making the decision to approve this land exchange
is a direction from the citizens of this State that certain factors need be
considered, and
certain assurances confirmed, with respect to the exchange of their public trust
lands for
private lands. The citizens of this State can demand nothing more, and expect
nothing
less, than to have the governmental entities of the State follow the valid
directions of the
governed.
The Board has a statutory obligation to make certain, when it trades public
lands
that contain navigable lakes and streams or other bodies of water with significant
public
use value, the State of Montana receives lands with similar bodies of water. The
Boardþs
refusal to consider õ 77-2-203(2), MCA, during its decision making process and its
attempt to justify its decision to approve the land exchange with supplementary
hearings
regarding õ 77-2-203(2), MCA, constitutes an arbitrary failure of this statutory
obligation.
I would remand this matter to the District Court for its return to the Board
of Land
Commissioners with instructions to reconsider its decision regarding this land
exchange
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and to properly hear and consider evidence as to the significant public use values
of the
bodies of water upon the lands to be exchanged.
/S/ MARC G. BUYSKE
District Judge, sitting in place
of Justice W. William Leaphart
Justice Karla M. Gray, dissenting.
I respectfully and reluctantly dissent from the Court's opinion. While it is
clear
that the Board of Land Commissioners and its legal advisers did not cover themselves
in glory via their conduct in these proceedings, I cannot join the Court's sweeping
effort
to reconstitute the administrative record on which the Board made its decision in
order
to provide the plaintiffs a "second bite at the apple" in their late effort to
impact on that
record and the ultimate decision in this case. I would affirm the District Court's
conclusion that the Board's decision was not arbitrary, capricious or unlawful.
The issue of whether the Board's decision was unlawful is not a difficult
one. Late
or not, the Board ultimately concluded that õ 77-2-203(2), MCA, applies to this land
exchange. When it did so, it made special findings relating to the statutory
requirements
on the basis of the record before it, provided opportunities for public input and
comment
on those findings, and ratified its earlier approval of the land exchange on the
basis of
those findings. Thus, it cannot fairly be said that the Board's decision was
unlawful.
Moreover, while I agree with the Court and with Judge Buyske's thoughtful
special
concurrence that the procedures by which the Board's ratified decision was made were
undoubtedly unseemly from the standpoint of the public's rightful expectations of the
Board, the question before us is not whether the procedures were arbitrary or
capricious.
The question is whether the Board's decision was arbitrary or capricious, and I
submit
that it was not. The District Court concluded, and I agree, that sections 3.2.8 and
4.1.8
of the EA provided a sufficient basis--that is, substantial evidence--to support the
Board's
findings and conclusions that the land exchange meets the requirements of õ 77-2-203
(2),
MCA. Beyond that, we cannot properly go in this case.
The Court, however, approaches this case as if it were a direct challenge to
the
EA, notwithstanding that all parties agree it is not. In its sweeping consideration
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and
evaluation of the evidence the plaintiffs submitted to the District Court after the
EA was
long completed, this Court essentially upends the EA process and the right of
agencies
who must use EAs in decision-making to rely on them. It does so by essentially
allowing
the plaintiffs--who either sat out the EA process or whose views were not accepted
during
that process--to make a "new" record relating to matters addressed in the EA, after
the
fact and absent a legal challenge to the EA or the process by which the EA was
developed. If the plaintiffs wanted to impact the EA, they were obliged to do so
during
that process. Since the evidence presented to the District Court was not offered
during
that process, it cannot properly be considered now in this indirect attack on the EA
via
a challenge to the Board's decision.
Moreover, the plaintiffs could have presented the evidence at issue to the
Board
prior to the Board's conclusion that õ 77-2-203(2), MCA, applied or during the public
comment and input opportunities provided on the Board's special findings ratifying
and
approving the land exchange. They did not do that either. Thus, I cannot agree
with the
Court's determination that this evidence can now be used to create genuine issues of
material fact regarding whether the Board's decision was arbitrary or capricious.
Finally, the Court's approach to the use of late-offered evidence to create
genuine
issues of material fact regarding whether the Board's decision was arbitrary or
capricious
essentially allows this Court--or any court--to intrude directly into the decision-
making
responsibilities of the Board. No matter how the Court couches it, its decision in
this
case means that every administrative agency decision can be challenged on "arbitrary
or
capricious" grounds if a mere evidentiary conflict in the record can be raised--or
created
after the fact--and every such challenge will allow courts to both intrude into
agency
decision-making and substitute their judgment for that of the agency.
Notwithstanding
the rumored discontent in many quarters over the extent to which the legislature has
delegated authority to administrative agencies, I cannot agree that the Court can
properly
vest that authority in itself.
I dissent.
/S/ KARLA M. GRAY
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