Guthrie v. Montana Department of Health & Environmental Sciences

No. 13600
IN THE SUPREME COURT OF THE STATE OF MONTANA

A. B. GUTHRIE, JR., ALICE GLEASON;
KENNETH GLEASON; and MONTANA WILDERNESS ASSOCIATION,
Plaintiffs and Respondents,
-vs-
MONTANA DEPARTMENT OF HEALTH AND
ENVIRONMENTAL SCIENCES,
Defendants and Appellants,
BOARD OF COUNTY COMMISSIONERS, TETON COUNTY;
J. R. CRABTREE; JAMES K. CRAWFORD; and ROBERT
W. JENSEN,
Defendants.

Appeal from: District Court of the First Judicial District,
Honorable E. Gardner Brownlee, Judge presiding.
Counsel of Record:
For Appellants:
Church, Karris, Johnson and Williams, Great Falls,
Montana
M. 0 Wordal argued, Great Falls, Montana
.
G. Steven Brown, Helena, Montana
Stan Bradshaw argued, Helena, Montana
Charles M. Joslyn, County Attorney, argued,
Choteau, Montana
For Respondents:
James H. Goetz argued, Bozeman, Montana
Peter M. Meloy, Helena, Montana
Gregory L. Curtis, Choteau, Montana

Submitted: January 13, 1977
Decided : MAR 15 19i7
Filed: MAR 13 1977
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.

This is an appeal from denial of a motion for change of

venue in an action for an injunction in the district court,Lewis

and Clark County.

Plaintiffs in the action are A.B. Guthrie, Jr.; Alice and
Kenneth Gleason; and the Montana Wilderness Association. Guthrie

alleges he owns land about two miles from the proposed Arrowleaf

West Subdivision, "takes general aesthetic appreciation of the

area" and "engages in horseback riding, hiking and fishing in

the general area".

Alice and Kenneth Gleason allege they own a dude ranch
about a mile from the proposed development and they earn their
livelihood from the dude ranch. They allege they engage in

"general recreational pursuits such as hiking, riding, fishing,
and hunting." Gleasons also allege their livelihood is "dependent
upon the said area remaining aesthetically pleasing, sparsely

populated, generally undeveloped, and well populated with fish
and wildlife ."
The Montana Wilderness Association alleges that about
eight of its members reside in Teton County and that numerous

members "make general recreational, aesthetic, and environmental

use of the public lands and certain of the private lands in
the general vicinity of the proposed Arrowleaf West Subdivision."
Defendants in the action for injunction are: J. R. Crabtree,
James M. Crawford, and Robert W. Jensen, owners and developers

of the proposed subdivision which is to consist of weekend re-
creatkonal second homes; the Teton County Commissioners; and the

Montana Department of Health and Environmental Sciences.
 The relief requested is an injunction. Plaintiffs set

out three basic reasons for this relief:

1 They allege the Montana Department of Health and
)
Environmental Sciences' act of lifting the sanitary restrictions

imposed by statute to force compliance .-:w%ths.
health and

sanitation laws constitutes a recommendation or report on

proposals for projects, programs for projects, programs, legis-
lation and other major actions of state government significantly

affecting the quality of the human environment, therefore

the Department must do an environmental impact statement. It

is alleged no environmental impact statement was prepared and
until one is prepared, the sanitary restrictions may not be
legally lifted.

2) Plaintiffs allege the Teton County Commissioners did

not comply with the Subdivision and Platting Act in that they
did not (a) give proper notice, (b) hold the required public

hearing, nor (c) make the findings required.

3) Plaintiffs allege the individuals _named as defendants

are proceeding to physically alter the land illegally because

they are acting pursuant to permission granted by the alleged

illegal acts of the Department and the Teton County Commissioners

and that such physical alteration is doing irreparable harm to

plaintiffb! interests.
Plaintiffs' complaint asks that defendants be prohibited
from proceeding with actions which would physically alter the
character of their land until the Department complies with its
statutory duties and the Teton County Commissioners comply with

their statutory duties. It also requests a mandatory injunction

ordering reinstatement of the sanftary restrictions and with-
drawal of the approval of the plat. A temporary injunction

was requested and granted.

At the time of this appeal, the statusd of the matter dss

this :

The complaint was filed and amended. Judge Bennett was
disqualified and Judge Brownlee assumed jurisdiction. Defendants

filed their motion for change of venue which was briefed and
submitted to the district court, which denied the motion in these

words :

"It appears to the Court that any trial upon the
factual questions based upon the actual impact of the
proposed subdivision in Teton County should properly
be held in Teton County; however,it appears to this
Court that the Complaint charges the Department of Health
with not performing their statutory duties, and it
further appears to the Court that venue for such a charge
is properly in Lewis and Clark County. * * *"

Two statutory sections are involved. Section 93-2902(2),

R.C.M. 1947, provides:

"Actions for the following causes must be tried
in the county where the cause, or some part thereof,
arose, subject to the like power of the court to
change the place of trial:

"2. Against a public officer, or person specially
appointed to execute his duties, for an act done by
him in virtue of his office; or against a person who,
by his command or in his aid, does anything touching
the duties of such officer."
Section 93-2906(1), R.C.M. 1947, provides:
"The court or judge must, on motion, change the place
of trial in the following cases:
"1. When the county designated in the complaint
is not the proper county."
 Plaintiffs argue refusal to grant a motion for change
venue is within the sound discretion of the district court.

This is true of motions under subsections 2 and 3 of section

93-2906 which are clearly discretionary in their terms:

Subsection 2 provides: '

"When there is reason to believe that an impartial
trial cannot be had therein * * *I
.'

Subsection 3 provides:

"When the convenience of witnesses and the ends of
justice would be promoted by the change."

It is clear the making of such findings is within the court's

discretion. 'However,Montana cases considering change of venue

under section 93-2906(1) are contrary. In McKinney v. Mires,
95 Mont. 191, 195, 26 P.2d 169, the Court stated:

"On Wmpliance with the statute and on a proper
showing that the action was commenced in the wrong
county, a defendant is entitled, on this first ground,
to a change to the proper county as a matter of right."

In Johnson v. Clark, 131 Mont. 454, 460, 311 P.2d 772, the
Court said:

"The above-quoted provisions of section 93-2906
are mandatory and, on timely and proper applica-
tion, require the district court to change the venue.
[Citing cases] .'I

Johnson was reaffirmed in Lunt v. Division of Workmen's
Compensation, 167 Mont. 251, 537 P.2d 1080, 32 St.Rep. 662, 663,

when the Court stated:
"A district court is required to grant a motion
for change of venue when the county designated in
the complaint is not the proper county. Section
93-2906, R.C.M. 1947; Johnson v. Clark, 131 Mont.
454, 311 P.2d 772. * * *"
Section 93-2902(2), R.C.M. 1947, the second venue statute
involved requires each cause be examined before a determination

of the proper venue may be made. The determination is into the

nature of the cause of action involved and where it arose.
 The basic purpose of this venue provision is discussed in

Regents of University of Cal. v. Superior Court, 91 Cal.Rptr.

57, 476 P.2d 457, 461. There the California Court discussing a

similar provision said:

"The underlying purpose of statutory provisions
as to venue for actions against state agencies
is to afford to the citizen a forum that is not so
distant and remote that access to it is impractical
and expensive. To that end, such provisions should
be liberally construed in favor of the private litigant.
* * *"
Here, the Department of Health and Environmental Sciences
joined defendants in the motion for change of venue and it is the

plaintiffs, residents of Teton County and an organization which

alleges that its members use the area in Teton County, who argue

that venue is proper in Lewis and Clark County. They argue that
because they alleged as a part of the basis for injunction that

the Department had a duty to do an environmental impact statement,

which was not done, therefore the "cause, or some part thereof,
arose" in Lewis and Clark County.

he phrase "cause, or some part thereof, arose" was dis-

cussed at length by this Court in Bergin v. Temple, 111 Mont.

539, 546, 111 P.2d 286. There the Court said:

"* * * a cause of action exists when the plaintiff
has a right to institute a judicial proceeding and
he has the right under the circumstances described here
the moment he can show that the defendant has wrongfully
infringed his liberty.
".'Arise,' the verb of which 'arose' is the past tense,
means, * * * 'to spring up, originate; to come into being
or notice, to become operative, sensible, visible, or
audible; to present itself'; etc. Thus a cause of action
arises when it springs up, originates, comes into being,
becomes operative, presents itself. * * *"

Thus, the answer to the question of proper venue under
section 93-2902(2), R.C.M. 1947, lies in the analysis of two
dependent variables, the nature of the cause of action and the

time and place where it springs into existence.

Here, the action is for an injunction which in this case

sprung into existence at the time and the place where the alleged

irreparable harm was threatened. That occurred when defendants
began work physically altering the land. The alleged Illegal acts

of the Department and the Teton County Commissioners could be

enjoined, if at all, only where there was some threatened irrepar* 1; + . .

able harm to plaintiffs' interests.

Plaintiffs assert that Lunt v. Workmen's Comp. Dept. of
Labor & Ind., 167 Mont. 251, 537 P.2d 1080, 1081, 32 St.Rep.

662, 664, is controlling here. There the action was for mandamus.

It is difficult to imagine mandamus,based as it is on neglect

or refusal by a public official to perform a ministerial duty,

-"'* * *
which did not arise as the Court said in Lunt in the

county where the public official officially resides. It is at
that place where he officially refuses to act or neglects to

act. 1 1 1

Gildroy v. Anderson, 159 Mont. 325, 328,329, 497 P.2d 688,
does not support plaintiffs' argument. There the Court was
careful to point out:
"Plaintiffs' complaint does not challenge the merits
of the operation of the executive order in redistricting
the affected counties as the cause of their injury.
Rather, the claim is that an injury arises from an
official act of the Governor which exceeds his powers
and authority by reason of its alleged unlawful contra-
vention of express legislative action. The question
is one of the respective powers and authority of two
branches of government, not the merits of the operation
of the executive order.

''By reason of the novelty of the subject matter of this
suit, being a test of the powers and authority of two
 branches of government, it is clearly distinguishable
from the facts found controlling in the Montana-Dakota
Utilities Co. case heretofore cited. The circumstances
of this case bring it within the rule that a cause of
action based upon official conduct of a state officer
performable at the seat of the state government arises
in the county of his official residence."

Montana-Dakota Utilities Co. v. Public Service Commission,

111 Mont. 78, 80, 107 P.2d 533, would be controlling here but

-
for the language in Lunt stating:

It* * * Any portions of Montana-Dakota Utilities Co. v,
Public Service Commission, 111 Mont. 78, 107 P.2d 533,
inconsistent with this opinion are hereby expressly
overruled .I1

Both cases were properly decided, the difference in result is

based on the fundamental difference between the nature of the

causes of action involved. In Montana-Dakota Utilities Co.

the Court said:

"* * * The cause of the action is the threatened
enforcement or operation of the order in Valley
and Phillips counties. It is not the mere making of
the order, but the place where it is put in operation,
that determines where the cause of action arose.
Operation of the order is what is alleged will injure
plaintiff. Section 3906, as amended by Chapter 56,Laws
of 1937, provides that the orders'shall become operative'
within twenty days after their filing. It is the operation
of the order that the action seeks to enjoin. True, the
complaint also seeks to set aside the order, but only
because its operation allegedly would injure plaintiff
byconfiscating its property. The operation of the order
will be accomplished, if at all, in Valley and Phillips
counties where the order is made applicable. It is our
view that the cause of action arose in Valley and Phillips
counties and not in Lewis and Clark county."

Montana-Dakota Utilities Co. was discussed with approval
in Cecil v, Superior Court In and For Los Angeles County, 59
C.A.2d 793, 140 P.2d 125, 129, where the California Court
responding to an argument like that made by plaintiffs here,

said:
 "It is where the shaft strikes him, not where it is
drawn, that counts."

Here, the injunction is aimed at stopping irreparable harm

in Teton County, that is where the arrow strikes and where venue

is proper.

The district court's denial of the motion for a change of

venue is reversed.

We Concur:
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Chief stice