BITTERROOT RIVER PROTECTION ASS'N, INC. v. Bitterroot Conservation District

• Decision Date: 04 April 2002
• Docket Number: No. 01-118.,01-118.
• Citation: 309 Mont. 207,2002 MT 66,45 P.3d 24
• Parties: BITTERROOT RIVER PROTECTION ASSOCIATION, INC., Petitioner, v. BITTERROOT CONSERVATION DISTRICT, Respondent.
• Court: Montana Supreme Court

45 P.3d 24

2002 MT 66

309 Mont. 207

BITTERROOT RIVER PROTECTION ASSOCIATION, INC., Petitioner, v. BITTERROOT CONSERVATION DISTRICT, Respondent.

No. 01-118.

Supreme Court of Montana.

April 4, 2002.

ORDER AND OPINION

¶ 1 The Bitterroot River Protection Association, Inc. (the "BRPA") seeks a writ of prohibition to stop the Bitterroot Conservation District (the "BCD") from proceeding with a determination of whether the Mitchell Slough, a body of water in the Bitterroot Valley, is a "stream," as defined in the Natural Streambed and Land Preservation Act of 1975.

¶ 2 The following issue is dispositive of this petition:

¶ 3 May the Bitterroot Conservation District make the initial determination of whether the Mitchell Slough is a "natural perennial-flowing stream?"

BACKGROUND

¶ 4 The BCD is the authorized conservation district for Ravalli County, Montana. In its role as a conservation district, the BCD is responsible for issuing permits to any person who plans to alter or modify a stream in Ravalli County. Over the years, the BCD has issued a number of permits for a body of water called the Mitchell Slough. The Mitchell Slough lies roughly to the east of Victor, Montana.

¶ 5 In July 1995, Brian Monta requested a portage permit from the BCD for the Mitchell Slough. Because of this portage request, a question arose concerning the designation of the Mitchell Slough as a perennial-flowing stream. If the Mitchell Slough was not a perennial-flowing stream, then it would not be subject to the provisions of the Natural Streambed and Land Preservation Act of (1975) (the "Streambed Preservation Act") and would thus be outside the jurisdiction of the BCD. After unsuccessfully attempting to have the State Department of Natural Resources and Conservation, the State Fish Wildlife and Parks and the State Department of Environmental Quality determine whether the Mitchell Slough was a "natural perennial-flowing stream," the BCD decided to use a public hearing process to make this determination.

¶ 6 The BCD published legal notices in the Ravalli Republic on December 19, 2000, and January 8, 2001, stating that they would hold a hearing on whether the Mitchell Slough was a perennial-flowing stream on January 16, 2001. According to the notice, the BCD would begin its deliberations on the status of the Mitchell Slough at its regularly scheduled meeting on January 30, 2001, and, if necessary, would continue its deliberations until it made a determination. After the January 16 hearing, the BCD requested that the public file comments and additional written information through January 23, 2001.

¶ 7 On January 24, 2001, the BRPA sought an alternate writ of prohibition to stop the BCD from determining the status of the Mitchell Slough from the Twenty First Judicial District Court, Ravalli County. The BCD began deliberating the status of the Mitchell Slough at its January 30, 2001, meeting. The next day, the District Court held a hearing. Following the hearing, Judge Jeffrey Langton denied the BRPA's writ of prohibition. The BRPA then filed for a writ of prohibition with this Court.

DISCUSSION

¶ 8 May the Bitterroot Conservation District make the initial determination of whether the Mitchell Slough is a "natural perennial-flowing stream?"

¶ 9 A writ of prohibition serves to stop an entity exercising judicial functions from acting when the proceedings are beyond its jurisdiction. See § 27-27-101, MCA. We will not grant a writ of prohibition, however, unless the party seeking the writ demonstrates that the proceedings are clearly unlawful. See Kimble Properties, Inc. v. Dept. of State Lands (1988), 231 Mont. 54, 56, 750 P.2d 1095, 1096

; see also State ex rel. Lee v. Montana Livestock Sanitary Bd. (1959), 135 Mont. 202, 209, 339 P.2d 487, 491 (stating that a writ of prohibition will not restrain an entity exercising a judicial function, so long as the entity has jurisdiction of the subject matter in controversy). A writ of prohibition should not replace an appeal or perform the function of a writ of review. See Lee,

135 Mont. at 209,

339 P.2d at 491. Therefore, in order to grant the BRPA's request for a writ of prohibition, we must conclude that the BCD's decision to determine whether the Mitchell Slough is a stream was clearly outside its authority. We cannot reach such a conclusion.

¶ 10 The Streambed Preservation Act serves "to protect the use of water for any useful or beneficial purpose as guaranteed by The Constitution of the State of Montana." Section 75-7-102, MCA. The Streambed Preservation Act is also commonly referred to as the "310 law." Enforcement of the Streambed Preservation Act is largely the responsibility of conservation districts. In their enforcement capacity, the districts' duties include overseeing proposed alterations or modifications of streams in Montana. See generally §§ 75-7-103(5), -112, 76-15-103(3), MCA. In Ravalli County, where the Mitchell Slough is located, the BCD is the responsible conservation district. The BCD has five elected supervisors and one appointed by the mayor of Hamilton, Montana. Each supervisor is responsible for a different region within Ravalli County. See generally § 76-15-301, MCA.

¶ 11 When a person seeks to alter or modify a body of water in Ravalli County, the BCD must approve the project if the body of water in question is a "stream." The Streambed Preservation Act defines a stream as "any natural perennial-flowing stream or river, its bed, and its immediate banks except a stream or river that has been designated by district rule as not having significant aquatic and riparian attributes in need of protection or preservation." Section 75-7-103(6), MCA. The BRPA correctly notes that the Streambed Preservation Act does not specifically authorize conservation districts with the power to classify bodies of water as streams. In fact, the Act does not authorize any specific entity with this power. The BRPA argues that, because the BCD lacks the specific authority to hold a hearing to classify the Mitchell Slough, the BCD is improperly acting outside the scope of its power. While the BRPA cites two Montana cases in support of this proposition, neither of these cases has precedential value to the matter now before us.

¶ 12 In the first case, Bell v. Department of Licensing (1979), 182 Mont. 21, 594 P.2d 331, this Court ruled on the scope of the Department of Professional and Occupational Licensing's power to regulate barber colleges. While Montana law enumerated certain personal requirements for the operators of barber colleges, the Department of Licensing added additional requirements to those already codified by the legislature. We held that, by adding additional requirements to those already codified in the statute, the Department went beyond the scope of its power. See Bell, 182 Mont. at 23,

594 P.2d at 333.

¶ 13 In the second case, Taylor v. Taylor (1995), 272 Mont. 30, 36, 899 P.2d 523, 526-27, we concluded that an administrative law judge had violated the model rules of evidence by not holding an in-person hearing in a child support case. Specifically, the judge violated the statutory requirement that "agencies shall be bound by common law and statutory rules of evidence." See Taylor, 272 Mont. at 34,

899 P.2d at 525 (citing § 2-4-612(2), MCA). An administrative agency, we held, could not adopt rules that conflicted with statutory requirements or exceeded the agency's powers. See Taylor, 272 Mont. at 36,

899 P.2d at 526. Nevertheless, we allowed the agency to continue with its hearing by ultimately remanding the case back to it. See Taylor, 272 Mont. at 36,

899 P.2d at 527.

¶ 14 Unlike the agencies in either Bell or Taylor, the BCD is not seeking to add requirements to those already in the code or contradict its provisions. Instead, the BCD is simply attempting to apply the legislature's articulated requirement of "natural perennial-flowing stream." This is a necessary task that the code fails to assign to any specific entity. Neither Bell nor Taylor addresses this jurisdictional question.

¶ 15 Numerous other cases support the rule that a court should allow an agency to determine initially whether it has jurisdiction. See Wilson v. Department of Pub. Serv. Regulation (1993), 260 Mont. 167, 171, 858 P.2d 368, 370

; General Atomics v. United States Nuclear Regulatory Comm'n (9th Cir.1996), 75 F.3d 536, 541 (holding that a court could not review an agency's order asserting jurisdiction because the agency had initiated a hearing to obtain the facts necessary to make the final jurisdictional determination); Lone Star Cement Corp. v. FTC (9th Cir.1964), 339 F.2d 505, 509-10 (concluding that a court may not review an agency's jurisdiction until the party exhausts his or her administrative remedies); Marshall v. Burlington Northern, Inc. (9th Cir.1979), 595 F.2d 511, 513; Marshall v. Able Contractors, Inc. (9th Cir.1978), 573 F.2d 1055, 1057; California ex rel. Christensen v. FTC (9th Cir.1977), 549 F.2d 1321, 1323 cert. denied, (1977) 434 U.S. 876, 98 S.Ct. 227, 54 L.Ed.2d 156. When an agency blatantly acts outside the scope of its authority, however, courts have allowed exceptions to this rule of exhaustion. See, e.g., Leedom v. Kyne (1958), 358 U.S. 184, 189, 79 S.Ct. 180, 184, 3 L.Ed.2d 210 (holding that the National Labor Relations Board acted beyond its delegated powers when it acted in direct contradiction to a specific statutory prohibition). Courts also have excused the exhaustion requirement when they resolve the merits before addressing exhaustion. See, e.g., McKart v. United States (1969), 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (holding that a petitioner was exempt from military service before deciding that his failure to appeal should foreclose all judicial review); Greene v. United States (1964), 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (holding that an agency must pay a claim before concluding exhaustion of remedies is unnecessary). One commentator has...