Bostwick Properties, Inc. v. Montana Department of Natural Resources & Conservation

May 21 2009

DA 08-0248

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 181

BOSTWICK PROPERTIES, INC.,

Petitioner and Appellee,

v.

MONTANA DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION,

Respondent and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-07-917A
Honorable John C. Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Anne W. Yates (argued), Brian Bramblett, Candace F. West, Montana
Department of Natural Resources and Conservation, Helena, Montana

For Appellee:

Brian K. Gallik (argued), Trent M. Gardner, Goetz, Gallik & Baldwin,
P.C., Bozeman, Montana

Matthew Williams, Williams & Jent, PLLP, Bozeman, Montana

For Amicus Curiae PPL Montana, LLC:

Holly Jo Franz (argued), Franz & Driscoll, PLLP, Helena, Montana

For Amicus Curiae Montana Department of Fish, Wildlife & Parks:

Robert N. Lane, Rebecca Jakes Dockter, Montana Fish, Wildlife & Parks,
Helena, Montana
 For Amicus Curiae Montana Trout Unlimited:

Stan Bradshaw, Montana Trout Unlimited, Helena, Montana

Laura S. Zeimer, Montana Trout Unlimited, Bozeman, Montana

For Amicus Curiae Association of Gallatin Agricultural Irrigators:

David Weaver, Nash, Zimmer, Weaver & Grigsby, Bozeman, Montana

For Amicus Curiae Montana Association of Realtors® and Montana Building
Industry Association:

John E. Bloomquist, Abigail J. St. Lawrence, Doney Crowley Bloomquist
Payne Uda, P.C., Helena, Montana

Argued and Submitted: April 22, 2009

Decided: May 21, 2009

Filed:

__________________________________________
Clerk

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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 The Montana Department of Natural Resources and Conservation (DNRC)

appeals an order from the Eighteenth Judicial District Court granting a writ of mandamus,

or writ of mandate, to Bostwick Properties, Inc. (Bostwick). This writ directed DNRC to

issue a water use permit to Bostwick for the construction of a municipal water system for

the Lazy J South subdivision, which Bostwick is developing in Gallatin County. We

reverse the District Court’s issuance of the writ and remand this matter for further

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On December 22, 2005, Bostwick filed an application with the DNRC for a water

use permit in order to use water from an aquifer for the Lazy J South subdivision. Prior

to submitting the application, Bostwick had conducted drilling and extensive testing of

this aquifer which is located approximately 1300 feet below the earth’s surface.

¶3 DNRC is the state agency responsible for issuing water use permits. The

requirements for such permits are set forth in Title 85, chapter 2, part 3 of the Montana

Code Annotated. The first step in this process requires the person or entity seeking a

water permit to file an application with DNRC. Section 85-2-302, MCA. Once DNRC

has determined the application is “correct and complete,” DNRC then provides public

notice of the application and gives other parties an opportunity to file objections.

Sections 85-2-307 and -308, MCA. If the DNRC determines that valid objections are

presented, it then holds a contested case hearing pursuant to the Administrative Procedure

Act, Title 2, chapter 4, part 6. Section 85-2-309, MCA.

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¶4 If no objections have been received, DNRC has 120 days from the last date of

publication of notice to either “grant, deny, or condition” the application. Section

85-2-310(1), MCA. If objections have been received or a hearing has been held, then

DNRC has 180 days from the last date of publication of notice to do the same. Section

85-2-310(1), MCA. The DNRC also has the discretion to extend these deadlines by 60

days. Section 85-2-310(1), MCA. DNRC is prohibited from denying or modifying a

permit “unless the applicant is first granted an opportunity to be heard.” Section

85-2-310(3), MCA. Accordingly, “[i]f an objection is not filed against the application

but the department is of the opinion that the application should be denied or approved in a

modified form or upon terms, conditions, or limitations specified by it, the department

shall prepare a statement of its opinion and its reasons for the opinion.” Section

85-2-310(3), MCA. DNRC is required to then serve this statement of opinion upon the

applicant, giving the applicant an opportunity to request a hearing on the application

within 30 days after notice of the statement of opinion has been mailed. Section

85-2-310(3), MCA.

¶5 The criteria for evaluating whether to issue, deny, or condition a water use permit

are found in § 85-2-311, MCA, and read as follows:

85-2-311. Criteria for issuance of permit. (1) A permit may be
issued under this part prior to the adjudication of existing water rights in a
source of supply. In a permit proceeding under this part, there is no
presumption that an applicant for a permit cannot meet the statutory
criteria of this section prior to the adjudication of existing water rights
pursuant to this chapter. In making a determination under this section, the
department may not alter the terms and conditions of an existing water
right or an issued certificate, permit, or state water reservation. Except as
provided in subsections (3) and (4), the department shall issue a permit if

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the applicant proves by a preponderance of evidence that the following
criteria are met:
(a) (i) there is water physically available at the proposed point of
diversion in the amount that the applicant seeks to appropriate; and
(ii) water can reasonably be considered legally available during the
period in which the applicant seeks to appropriate, in the amount
requested, based on the records of the department and other evidence
provided to the department. Legal availability is determined using an
analysis involving the following factors:
(A) identification of physical water availability;
(B) identification of existing legal demands on the source of supply
throughout the area of potential impact by the proposed use; and
(C) analysis of the evidence on physical water availability and the
existing legal demands, including but not limited to a comparison of the
physical water supply at the proposed point of diversion with the existing
legal demands on the supply of water.
(b) the water rights of a prior appropriator under an existing water
right, a certificate, a permit, or a state water reservation will not be
adversely affected. In this subsection (1)(b), adverse effect must be
determined based on a consideration of an applicant’s plan for the exercise
of the permit that demonstrates that the applicant’s use of the water will be
controlled so the water right of a prior appropriator will be satisfied;
(c) the proposed means of diversion, construction, and operation of
the appropriation works are adequate;
(d) the proposed use of water is a beneficial use;
(e) the applicant has a possessory interest or the written consent of
the person with the possessory interest in the property where the water is
to be put to beneficial use, or if the proposed use has a point of diversion,
conveyance, or place of use on national forest system lands, the applicant
has any written special use authorization required by federal law to
occupy, use, or traverse national forest system lands for the purpose of
diversion, impoundment, storage, transportation, withdrawal, use, or
distribution of water under the permit;
(f) the water quality of a prior appropriator will not be adversely
affected;
(g) the proposed use will be substantially in accordance with the
classification of water set for the source of supply pursuant to
75-5-301(1); and
(h) the ability of a discharge permitholder to satisfy effluent
limitations of a permit issued in accordance with Title 75, chapter 5, part
4, will not be adversely affected.
(2) The applicant is required to prove that the criteria in subsections
(1)(f) through (1)(h) have been met only if a valid objection is filed. A

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 valid objection must contain substantial credible information establishing
to the satisfaction of the department that the criteria in subsection (1)(f),
(1)(g), or (1)(h), as applicable, may not be met. For the criteria set forth in
subsection (1)(g), only the department of environmental quality or a local
water quality district established under Title 7, chapter 13, part 45, may
file a valid objection.

¶6 After filing the application, Bostwick’s hydrologists entered into communications

with DNRC concerning its application. In July 2006, DNRC terminated Bostwick’s

application for allegedly taking too long to submit certain information which DNRC

required. On November 30, 2006, Bostwick filed another application for a new water use

permit for the same aquifer. On January 29, 2007, DNRC sent Bostwick a letter

identifying technical deficiencies with its application. Bostwick subsequently submitted

additional information.

¶7 On February 13, 2007, DNRC issued a document directing that public notice be

given of Bostwick’s application. At this point in the application process Bostwick’s

application was considered “correct and complete,” see §§ 85-2-307 and -308, MCA,

meaning “that the information required to be submitted conforms to the standard of

substantial credible information and that all of the necessary parts of the form requiring

the information have been filled in with the required information.” Section 85-2-102(8),

MCA. Notice was published and the Department of Fish, Wildlife, and Parks (DFWP)

and Montana Trout Unlimited (Trout Unlimited) both filed timely objections based on

concerns of potential depletions or reductions to instream flow needs in the Gallatin

River which might arise from Bostwick’s proposed use of water. Bostwick later settled

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with DFWP and Trout Unlimited and both parties withdrew their objections. Bostwick

notified DNRC of this settlement.

¶8 On July 18, 2007, Bostwick received another application review form from

DNRC. Bostwick’s hydrologists reviewed the form and provided additional information

to the DNRC about its permit application and related groundwater system. By August

2007, more than 180 days had elapsed since the publication of Bostwick’s application for

a water use permit, yet DNRC had not taken action on it. Nor had the DNRC requested

an extension of time in order to process the application. This failure on behalf of DNRC

was clearly contrary to the timeframes for processing water use permit applications as set

forth in § 85-2-310(1), MCA. See Opinion, ¶ 4.

¶9 On December 10, 2007, Bostwick applied to the Eighteenth Judicial District Court

for a writ of mandate directing DNRC to comply with § 85-2-310, MCA, and issue a

decision granting its application for the water use permit. The writ of mandate is a

statutory remedy which permits a court “to compel the performance of an act that the law

specially enjoins as a duty resulting from an office, trust, or station or to compel the

admission of a party to the use and enjoyment of a right or office to which the party is

entitled and from which the party is unlawfully precluded by the lower tribunal,

corporation, board, or person.” Section 27-26-102(1), MCA. In arguing for the writ,

Bostwick asserted that DNRC’s failure to either deny the application or issue a statement

of opinion describing its reasons for the denial within the statutory timeframes, mandated

that DNRC take appropriate action and approve the water permit.

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¶10 On December 11, 2007, the District Court ordered DNRC’s presence at a show

cause hearing concerning the issuance of the writ. On December 17, 2007, DNRC issued

a statement of opinion on Bostwick’s water use permit pursuant to § 85-2-310(3), MCA,

stating that Bostwick failed to satisfy the required criteria in § 85-2-311, MCA.

Specifically, DNRC concluded that Bostwick met its burden of proof with respect to

§ 85-2-311(1)(c) through (e), MCA, but failed to do so with respect to § 85-2-311(1)(a)

and (b), MCA.1 On December 24, 2007, DNRC then moved to quash Bostwick’s motion

for a writ of mandate.

¶11 DNRC, Bostwick, and other interested parties attended the scheduled show cause

hearing and presented arguments. After the hearing, but before the District Court issued

a final ruling, Bostwick filed a motion seeking a writ of supervisory control and

temporary and injunctive relief, as well as a writ of prohibition and writ of mandate, in an

effort to prevent DNRC from taking any further action on its water use permit. Bostwick

also asked the District Court to order DNRC to show cause as to why it was not entitled

to a contested case hearing on its application. On February 11, 2008, the District Court

concluded that Bostwick’s requests for supervisory control and temporary and

preliminary injunctive relief were moot, but ordered DNRC to file an answer to

Bostwick’s motion and to address whether or not Bostwick was entitled to a contested

case hearing.

1
Because we are not reaching the merits of Bostwick’s application at this point, we decline to
delve into the precise hydrological and scientific reasons why DNRC concluded that Bostwick
failed to meet the required criteria, but simply note DNRC concluded that Bostwick had in fact
failed to do so.

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¶12 On May 12, 2008, after the pending motions were fully briefed, the District Court

issued a written order denying DNRC’s motion to quash, granting Bostwick’s motion for

a writ of mandate, and further ordering that Bostwick be awarded reasonable attorney

fees and costs incurred in bringing its action. The reasoning for the District Court’s

decision to grant the writ can be briefly described as follows. First, the District Court

observed that DNRC had failed to take proper action on Bostwick’s permit application

within the timeframes established under Title 85, chapter 2, part 3, MCA, in spite of the

fact that it had all the information required to do so. Second, the District Court

determined that in November 2007, DNRC had approved a water use permit submitted by

the Yellowstone Mountain Club for an underground well in the same water basin as

Bostwick’s proposed use, and that, as a hydrological matter, there was no basis for

distinguishing between Bostwick’s proposed use and that already granted to the

Yellowstone Club. Third, the District Court concluded that the applicable statutes

imposed a deadline on DNRC to act on an application, and that if it fails to notify an

applicant who has submitted a “correct and complete” application of defects in the

application, or otherwise seeks an extension of time, it is mandated to approve the permit.

Further, the District Court concluded that DNRC may issue a statement of opinion only if

there no objections to the application for a water use permit; otherwise, DNRC can only

hold a contested case hearing on the application. Here, because Trout Unlimited and

DFWP had submitted previous objections, DNRC was legally prohibited from issuing a

statement of opinion, in spite of the fact that those objections were later withdrawn.

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¶13 Given the circumstances before it, including the fact that DNRC had failed to act

in strict accordance with the statutes in Title 85, chapter 2, part 3, MCA, and had already

approved the water use permit for the Yellowstone Club, the District Court concluded

that DNRC’s actions were arbitrary and that a writ of mandate was an appropriate

remedy. Importantly, the District Court concluded that under the applicable statutes,

once an application is considered “correct and complete,” DNRC must act to grant, deny,

or modify the proposed water use permit, and that if it fails to take such action within the

required timeframe, the criteria under § 85-2-311, MCA, are presumed satisfied and “[b]y

clear statutory mandate, the only remaining option is the ministerial option of granting

the permit.” Accordingly, the District Court issued the writ of mandate directing DNRC

to immediately issue Bostwick the water use permit based on the correct and complete

application it had submitted. The District Court also awarded Bostwick reasonable

attorney fees and costs incurred in bringing the action against DNRC.

¶14 The DNRC, along with amicus curiae Trout Unlimited, the Association of Gallatin

Agricultural Irrigators, PPL Montana, LLC, and DFWP, now appeal this order. In its

briefing before this Court, DNRC states that the parties have reached an agreement

concerning the attorney fees and costs issues related to the litigation in District Court.

DNRC asserts that the only pending issue regarding attorney fees concerns whether

Bostwick is entitled to attorney fees and costs for defending the District Court’s order on

appeal. Because we are reversing the District Court’s decision, we do not reach the issue

of attorney fees and costs incurred by Bostwick on appeal. Thus we state the sole issue

on appeal as follows:

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 Did the District Court err in granting Bostwick’s motion for a writ of mandamus?

STANDARD OF REVIEW

¶15 A district court’s decision to issue or deny a writ of mandamus is a conclusion of

law which we review for correctness. Belgrade Educ. Assn. v. Belgrade Sch. Dist. No.

44, 2004 MT 318, ¶ 6, 324 Mont. 50, 102 P.3d 517.

DISCUSSION

¶16 In Belgrade Educ. Assn., we described the writ of mandate as follows:

Section 27-26-102, MCA, which authorizes the issuance or denial of
writs of mandate, provides the following:

(1) A writ of mandamus may be issued by the supreme court or the
district court or any judge of the district court to any lower tribunal,
corporation, board, or person to compel the performance of an act
that the law specially enjoins as a duty resulting from an office, trust,
or station or to compel the admission of a party to the use and
enjoyment of a right or office to which the party is entitled and from
which the party is unlawfully precluded by the lower tribunal,
corporation, board, or person.
(2) The writ must be issued in all cases in which there is not a plain,
speedy, and adequate remedy in the ordinary course of law.

The clear legal duty referenced in subsection (1) cannot be a mere
discretionary act. Once a clear legal duty is established, the trial court must
issue a writ of mandate if no speedy and adequate remedy exists. See Smith
v. County of Missoula, 1999 MT 330, ¶ 28, 297 Mont. 368, ¶ 28, 992 P.2d
834, ¶ 28 (citations omitted).

Belgrade Educ. Assn., ¶ 7.

¶17 An act is considered “ministerial where the law prescribes and defines the duty to

be performed with such precision and certainty as to leave nothing to the exercise of

discretion or judgment. Where the act to be done involves the exercise of discretion or

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judgment, however, it is not deemed merely ministerial.” Beasley v. Flathead Co. Bd. of

Adjustments, 2009 MT 120, ¶ 17, 350 Mont. 171, 205 P.3d 812 (citing Smith, ¶ 28).

¶18 Additionally, we recently stated in Beasley that “a writ of mandate will not lie to

correct or undo an action already taken. An action already done cannot be undone by

mandamus, however erroneous it may have been.” Beasley, ¶ 15 (citing State ex. rel.

Popham v. Hamilton City Council, 185 Mont. 26, 29, 604 P.2d 312, 314 (1979)).

¶19 As a threshold matter, we conclude that the District Court erred in granting the

writ of mandate here because the writ was granted after DNRC had already issued a

statement of opinion to the effect that Bostwick had failed to satisfy the required criteria

under § 85-2-311, MCA, by a preponderance of the evidence. Since the statement of

opinion has been issued, regardless of its propriety or whether DNRC had the statutory or

jurisdictional authority to issue it, such action “cannot be undone by mandamus, however

erroneous it may have been.” Beasley, ¶ 15. Thus, as a matter of law, a writ of mandate

was not an appropriate remedy in this case, and the District Court erred in granting

Bostwick’s motion.

¶20 Furthermore, the District Court erred in concluding that DNRC had a “clear legal

duty” to approve the water use permit in this case, and that the approval was simply a

ministerial act, defined “with such precision and certainty as to leave nothing to the

exercise of [the] discretion or judgment” of the DNRC. See Beasely, ¶ 17. In granting

the writ, the District Court reasoned that DNRC had a clear legal duty to approve the

water use permit because: (1) DNRC had determined Bostwick’s application was

“correct and complete” under § 85-2-311, MCA; (2) legal notice was published with

12
respect to Bostwick’s application; (3) objections were timely filed; and (4) those

objections were timely resolved. Essentially, the District Court concluded that once

DNRC made a decision that Bostwick’s application was “correct and complete,” it had

180 days to conduct a hearing on any objections, and if the objections were resolved it

was required, as a matter of law, to issue the permit.

¶21 This analysis is incorrect. DNRC is required grant a permit only if any objections

are resolved and if the § 85-2-311, MCA, criteria are proven by a “preponderance of the

evidence.” The determination of whether an application has satisfied these criteria is

clearly a discretionary act on the part of DNRC. Bostwick has the burden of proving that

it has met these criteria, but has not yet done so. While DNRC did conclude in its

statement of opinion that Bostwick met its burden of proof with respect to

§ 85-2-311(1)(c) through (e), MCA, it also found that Bostwick did not prove by a

preponderance that it satisfied § 85-2-311(1)(a) and (b), MCA. Because Bostwick has

not satisfied these criteria, as a matter of law DNRC is simply not under a mandatory

legal duty to issue the water permit at this time.

¶22 Once Bostwick submitted an application which was “correct and complete,” and

thus eligible to go forward in the permit consideration process, DNRC had a clear, legal

duty to process that application in accordance with the applicable timeframes and

procedures in Title 85, chapter 2, part 3, MCA. DNRC clearly failed to uphold this duty,

and could have been commanded to make a decision one way or another as soon as those

timeframes had lapsed. But the issuance of the water permit itself does not become a

clear, legal duty until Bostwick proves, by a preponderance of the evidence, that the

13
required criteria have been satisfied. This has not yet happened as is clear from DNRC’s

statement of opinion. Now that the statement of opinion has been issued, DNRC has

signaled its intention to deny the application, and there are no pending objections, DNRC

is under a clear, legal duty to provide Bostwick an opportunity to be heard on its

application under § 85-2-310(3), MCA, and process Bostwick’s application in a timely

manner, consistent with the procedures set forth in the applicable statutes.

CONCLUSION

¶23 We conclude the District Court erred in granting the writ of mandate. We reverse

the writ of mandate and remand this matter to the District Court. Upon receipt of this

Court’s decision, Bostwick will have 30 days to request a hearing with the DNRC on its

application consistent with the timeframes set forth in § 85-2-310(3), MCA.

/S/ PATRICIA COTTER

We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS

Justice James C. Nelson, concurring.

¶24 I join the Court’s Opinion for two reasons. First, I agree that, here, the District

Court went one step too far. Instead of simply directing DNRC to get its act together and

make a decision—which would have been completely appropriate in this case—the court

14
directed DNRC how to rule. Second, while mandamus is an equitable remedy, and while

the naked equities in this case clearly favor Bostwick, we would be setting an intolerable

precedent if we permitted the district courts to direct what is, at bottom, a discretionary

agency decision. Though DNRC more than deserves the decision it got from the District

Court in this case, hopelessly muddling our mandamus caselaw is too high a price to pay

for affirming the court’s decision.

¶25 That said, however, I would be remiss in failing to compliment the District Court

Judge for his thorough, well-researched, and well-written decision. Had I been in his

shoes, I would likely have entered substantially the same findings of fact and conclusions

of law, given the strict requirements of the statutory scheme and the record of DNRC’s

general mishandling of Bostwick’s application. I sympathize, also, with Bostwick in its

obvious and understandable frustration. Justice Rice’s comments hit the nail on the head.

See Concurrence, ¶¶ 28-30, infra.

¶26 Finally, DNRC began its oral argument on appeal by repining that its permitting

program was “in shambles” because of the District Court’s decision in this case. To the

extent that is true, the District Court is not to blame. I do not doubt that DNRC is

overworked, understaffed, and underfunded. The agency can thank the executive and

legislative branches of government for that. The courts do not levy taxes or appropriate

money. I also agree with DNRC’s explicit and implicit observations that the statutory

scheme for permitting is, in many instances, unrealistic, confusing, and contradictory.

Again, DNRC can, for the most part, thank the Legislature. The courts do not write

statutes. However, at least some of this confusion and contradiction in the law has been

15
caused by DNRC itself in its zeal to have the Legislature statutorily overturn this Court’s

decisions. See Confederated Salish and Kootenai Tribes v. Clinch, 2007 MT 63, ¶¶ 66,

126, 336 Mont. 302, 158 P.3d 377 (Nelson, J., dissenting).

¶27 I understand and appreciate the District Court’s decision, but I concur in ours.

/S/ JAMES C. NELSON

Justice Jim Rice, concurring.

¶28 I concur in the decision of the Court because I agree that the governing statutes do

not clearly provide that DNRC must “grant” a permit if it has missed the statutory

deadlines, particularly where a general purpose of the statutory scheme is to protect

senior appropriators. Thus, mandamus can issue only to compel DNRC to act, not to

grant.

¶29 I agree with many of Justice Nelson’s thoughts as well, and further believe that

DNRC’s actions are nothing less than arbitrary, if not outrageous. The DNRC has had

the essence of this application before it since December of 2005. Following the filing of

Bostwick’s second application, and the additional work completed by Bostwick at

DNRC’s request, DNRC violated the 180 day processing deadline, failed to request an

additional 60 days as provided by statute, and all the while did not indicate to Bostwick

that the Department held any reservations about the application. When Bostwick’s

further inquiries about the permit were ignored by DNRC, Bostwick was forced, in

December of 2007, to seek the District Court’s issuance of an order to show cause.

16
Apparently realizing that it was required to follow the law, and that a court would hold it

accountable, DNRC magically kicked out a decision on Bostwick’s application in just six

days—denying it, of course, and advising Bostwick for the first time of DNRC’s

concerns about the application. DNRC’s quick action would be commendable if it hadn’t

been taken to rectify DNRC’s earlier malfeasance and to short-circuit a court’s review of

that malfeasance. Then, when Bostwick asked to be heard about the denial, DNRC

obliged Bostwick by setting a hearing in front of the same official who had written the

DNRC’s opinion denying the permit. Whether the DNRC was attempting to be

humorous or capricious, I do not know, but on its face this raises potential due process

concerns.

¶30 Only because I cannot conclude that the remedy requested by Bostwick is

available under the statutes as written or under our decision in Paradise Rainbows v. Fish

and Game Comm’n, 148 Mont. 412, 421 P.2d 717 (1966) allowing mandamus for failing

to exercise discretion, I concur.

/S/ JIM RICE

Justice John Warner dissents.

¶31 I dissent. The result of the Court’s decision is that the time limitations in § 85-2-

310, MCA, are ignored and Bostwick is left with no remedy. The concurrences of

Justices Rice and Nelson recognize this result, but agree there is no remedy.

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¶32 In my view, mandamus may lie in situations where the duty involved is

discretionary, but the discretion has been abused to such an extent that it amounts to no

exercise of discretion at all. Paradise Rainbows v. Fish and Game Commission, 140 Mont.

412, 417, 421 P.2d 717, 720 (1966). In this instance, DNRC so abused its discretion in

completely ignoring the mandatory time provisions in § 85-2-310, MCA, it lost its

discretion. Thus, I agree with the District Court that mandamus is an appropriate remedy

and lies to require DNRC to issue the permit.

¶33 When DNRC makes the initial designation that an application for a water use permit

is correct and complete, it has reached a substantive decision that the application is

supported by probable and credible evidence. See § 85-2-102(8), MCA (defining “correct

and complete” as “substantial credible information”); § 85-2-102(22), MCA (defining

“substantial credible information” as “probable, believable facts sufficient to support a

reasonable legal theory upon which [DNRC] should proceed with the action requested by

the person providing the information”). Section 85-2-311, MCA, provides that the criteria

for granting a permit must be proven by a preponderance of the evidence. A

preponderance of the evidence is evidence showing the elements at issue are more probably

true than not. State v. Scarborough, 2000 MT 301, ¶ 52, 302 Mont. 350, 14 P.3d 1202,

(citing 2 McCormick on Evidence § 339 (4th ed. 1992)). I see no difference between

“probable believable facts” and a “preponderance of the evidence.”

¶34 This parity of terms forces the conclusion that DNRC’s initial designation of an

application as correct and complete is substantive and indicates that the applicant has

established a prima facie case for granting a permit. When, as in this case, DNRC fails to

2
rebut the applicant’s prima facie showing within 180 days from the date of publication,1 its

initial designation of correct and complete must stand, and a district court may require by

writ of mandate that DNRC issue the permit.

¶35 Rule 36.12.1601, ARM, states that “providing correct and complete information is

not necessarily the same as proving the statutory criteria.” I interpret this to mean that

DNRC has an additional 180 days after its initial correct and complete designation to

continue its examination of the application. But within this time it must then grant, deny or

condition the applied for permit. However, if the 180 days expires with no action by

DNRC, its initial determination that an application is correct and complete serves as a

substantive determination that the permit should issue.

¶36 As noted by the District Court, the time periods in § 85-2-310, MCA, are established

to provide for the orderly review and processing of applications, protect an applicant’s due

process rights, and serve as a mandatory deadline by which DNRC must act after it

determines that an application is correct and complete. I agree with the District Court that

the language of § 85-2-310, MCA, plainly and unambiguously mandates DNRC to take

some action within the designated time period. Applicants must have an enforceable

method of redress to ensure DNRC does not string them along endlessly, either in a sea of

litigation or in limbo waiting for DNRC to take action.

¶37 I dissent from this Court’s decision to deny Bostwick any real remedy.

/S/ JOHN WARNER

1
Section 85-2-310, MCA, provides different time periods within which DNRC must take action,
depending on whether an objection is filed. For simplicity sake, I will use 180 days as the time
period in this discussion.

3