1 No. 01-118
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 66

___________________________________ BITTERROOT RIVER PROTECTION ASSOCIATION, INC., ) ) Petitioner, ) O R D E R ) v. ) A N D ) BITTERROOT CONSERVATION DI STRICT, ) O P I N I O N ) Respondent. )

___________________________________ 1 ¶ The Bitterroot River Protection Associatio n, Inc. (the “BRPA”) seeks a writ of prohibition to stop the Bitterroot Conservati on 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 defi ned 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 dete rmination 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. Overthe years, the BCD2 has issued a number of perm its for a body of water calle d the Mitchell Slough. The Mitchell Slough lies roughly to the east of Victor, Montana. 5¶ In July 1995, Brian Monta requeste d a portage permit fro m the BCD for the Mitchell Slough. Because of this portage request, a question ar ose concerning the designation of the Mitchell Slough as a pere nnial-flowing stream. If the Mitchell Slough was not a perennial-flowing stream, then it woul d not be subject to the provisions of the Natural Streambed and Land Preservation Ac t of (1975) (the “Streambed Preservation Act”) and would thus be outside the juri sdiction of the BCD. After unsuccessfully attempting to have the State Department of Natural Resources a nd Conservation, the State Fish Wildlife and Park s and the State Department of Environmental Quality determine whether the Mitchell Slough was a “natural pere nnial-flowing stream,” the BCD decided to use a public hearing pr ocess 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 wo uld hold a hearing on whether the Mitchell Slough was a perennial-flowing stream on Januar y 16, 2001. Accordin g to the notice, the BCD would begin its deliberations on the stat us of the Mitchell Slough at its regularly scheduled meeting on January 30, 2001, a nd, 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, 2001.3 7¶ On January 24, 2001, the BRPA sought an alternate writ of proh ibition to stop the BCD from determining the status of the Mitc hell Slough from the Tw enty First Judicial District Court, Ravalli County . The BCD began deliberating the status of the Mitchell Slough at its January 30, 2001, meeting. The ne xt 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 dete rmination of whether the Mitchell Slough is a “natural perennial-flowing stream?” 9¶ A writ of prohibition serves to stop an entity exercisi ng judicial functions from acting when the proceedings ar e beyond its jurisdiction. See § 27-27-101, MCA. We will not grant a writ of prohibition, ho wever, unless the party seeking the writ demonstrates that the proceed ings 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 prohi bition 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 appe al 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 pr ohibition, we must conclude that the BCD’s decision to4 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 “t o 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 Pres ervation Act is also commonly referred to as the “310 law.” Enfor cement of the Streambed Pres ervation 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), -1 12, 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 appoin ted by the mayor of Hamilton, Montana. Each supervisor is responsible for a different region with in 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 a quatic and riparian attr ibutes in need of protection or preservation.” Section 75-7-103(6), MCA. Th e BRPA correctly notes that the Streambed Preservation Act does not specif ically authorize conservation districts with the power to classify bodies of water as str eams. In fact, the Act does not authorize any5 specific entity with this powe r. The BRPA argues that , because the BCD lacks the specific authority to hold a hearing to cl assify 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 college s. While Montana law enumerated certain personal requirements for the operators of barb er 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 la w 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 th at “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 agen cy, 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 its6 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 pr ovisions. Instead, the BCD is simply attempting to apply the legislature’s articulated requirement of “natural perennialflowing stream.” This is a necessary task th at 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. Departme nt of Pub. Serv. Regulation (1993), 260 Mont. 167, 171, 858 P.2d 368, 370; General Atomics v. United States Nuclear Regulatory Comm’n (9 th Cir. 1996), 75 F.3d 536, 541 (holding that a court could not review an agency’s order asserti ng 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 (9 th Cir. 1964), 339 F.2d 505, 509-10 (concluding that a court may not review an agency’s jurisd iction until the party exhausts his or her administrative remedies); Marshall v. Burlington Northern, Inc. (9 th Cir. 1979), 595 F.2d 511, 513; Marshall v. Able Contractors, Inc. (9 th Cir. 1978), 573 F.2d 1055, 1057; California ex rel. Christensen v. FTC (9 th 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, 37 L.Ed.2d 210 (holding that the National Labor Relations Board acte d 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 se rvice before deciding that his failure to appeal sh ould 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 explained this latter line of cases as ones wh ere the courts decide to rule on relatively easy issues on the merits, while avoiding more complex issues of exhaustion. See 2
K ENNETH C ULP D AVIS & R ICHARD J. P IERCE , J R ., A DMINISTRATIVE L AW T REATISE § 15.4 (3rd ed. 1994). Some courts have estab lished the more formal analysis that a court may interfere with an agency’s initial determination of its jurisdiction only where (1) the agency’s jurisdiction is plainly lacking; (2) cl ear evidence exists that requiring a party to exhaust its remedies will result in irrepara ble injury; and (3) th e agency’s special expertise will be of no help on th e question of its jurisdiction. See Burlington Northern , 595 F.2d at 513. In practice, however, courts have rarely found instances where a party overcomes these three hurdles. Furthermore, examining the facts of this case, we cannot conclude that we should interfere with th e BCD’s ability initially to determine the scope of its jurisdiction. 1

1 Although most of our analysis con cerning the BCD’s ability to determine its own jurisdiction is predicated on comparisons to governmental agencies, we note that the8 16¶ First, the BCD’s jurisdiction is not pl ainly lacking. Where the merits of a jurisdictional question are a close one, an agen cy should make the initial determination. See Christensen, 549 F.2d at 1324. As we noted, th e Streambed Preservation Act offers no clear guidance about who may answer the jurisdictional question of which streams are “natural perennial-flowing.” The most logica l interpretation, however, is to allow the BCD to make the initial determination of a st ream’s status. Otherw ise, until some entity classifies the Mitchell Slough as a stre am, the BCD presumably could not regulate projects or grant permits as the Streambed Pres ervation Act authorizes it to do. After all, the Act only authorizes conservation district s to regulate projects on streams that are “natural perennial-flowing.” See § 75-7-103(6), MCA. Without the authority to classify bodies of water in Ravalli C ounty, the BCD would have to wait to gr ant permits until another entity decides what bodies of water are streams. BCD is actually a governmental subdivisi on. Specifically, the code defines a conservation district as a “ governmental subdivision of this state and a public body corporate and politic.” Section 76-15-103(3 ), MCA. Comparing other portions of the Montana Code, the legislature clearly inte nded for governmental subdivisions and agencies to be two distinct t ypes of governmental entities. See, e.g., § 17-5-202(2), MCA (defining a public body as an “agency of a political or govern mental subdivision” (emphasis added)); § 25-9-702(9), MCA (d efining “person” as a “governmental subdivision or agency” (emphasis added)); Rule 62(e ), M.R.Civ.P. (stating that when an appeal is taken by an “agency or governmental subdivision” of the State of Montana, the appellant is not required to provide secur ity (emphasis added)); § 30-1-201(28), MCA (stating that an “organization” in cludes a “governmental subdivision or agency” (emphasis added)). An agency’s authority is more limited th an that of an entity that consists of elected officials because an agency is not directly accountable to the public. See State ex rel. Dreher v. Fuller (1993), 257 Mont. 445, 45 1, 849 P.2d 1045, 1048. Here, the voters of Ravalli Co unty elect four of the five supervisors of the BCD. Therefore, if agencies may normally make the initial determination concerning their own jurisdiction, we see no reason to be more re strictive when dealing with the BCD and we proceed with our an alysis accordingly.9 17¶ An even more problema tic consequence of conclu ding that the BCD may not determine its own jurisdiction is that district rules may de list streams that do not have “significant aquatic and riparian attributes in need of prot ection or preservation” under the Act. Section 75-7-103(6), MCA. Therefore, if a district court or other entity were to decide that the Mitchell Slo ugh is a stream, the BCD co uld essentially veto this determination by designating the Mitchell Slough as not having “significant aquatic or riparian attributes.” Having the same entity decide what is a stream and conversely decide what is not a stream is more logical than having a district court or other entity decide the former and the BCD decide the latter. 18¶ Second, we cannot conclude that allo wing the BCD to dete rmine whether they have jurisdiction to classify the Mitchell Sl ough as a “natural perennial-flowing stream” will cause irreparable injury. If the BRPA disagrees with the BCD’s actions, it has several remedies. For instance, the BRPA may always seek judicial review of the BCD’s rulings. See § 2-3-113, MCA. Furthermore, it may be conceivable that future actions of the BCD may be properly scrutinized via a writ of review. See § 27-25-102(2), MCA. 19¶ Finally, the BCD’s expertise is not clear ly without value here . The BRPA notes that the BCD has the authority to make the potentially subtle de termination of what bodies of water lie outside its jurisdiction, mainly whether a natural perennial-flowing stream has “no significant aquatic and ripari an attributes in n eed of protection or preservation.” It is difficult to understand, therefore, how the BCD does not have the10 expertise to make the opposite determination of when a body of wa ter does lie within its jurisdiction. 20¶ The BRPA also argues that the BCD’s decision to classify the Mitchell Slough jeopardizes a citizen’s constitutional right to access Montana’s surface waters. Under the Montana Constitution, the State owns the waters for the benefit of its people, and the public has the right to use these waters. See Montana Coalition for Stream Access, Inc. v.
Curran (1984), 210 Mont. 38, 53, 682 P.2d 163, 171; Montana Coalition for Stream Access, Inc. v. Hildreth (1984), 211 Mont. 29, 35-36, 684 P.2d 1088, 1091. Following our decisions in Curran and Hildreth, the 1985 Montana Legislature enacted Title 23, chapter 2, part 3 of the Montana Code Annotated to protect the recreational use of surface waters (the “Stream Access Act”). Under th e definition of surface waters, the Stream Access Act specifically excludes ditches from its protection. See § 23-2-301(6), MCA. According to the BRPA, if the BCD determines that the Mitchell Slough is not a stream, the only logical conclusion would be that the Mitchell Slough must therefore be a ditch. If classified as a ditch, the Mitchell Slough would then lose its constitutional protection. The BRPA argues that a question with constituti onal implications such as this is better left in the hands of an entity othe r than a local conservation district. 21¶ Examining the Montana Co de, however, we cannot conclude that the statute establishes the binary scheme the BRPA envi sages where a body of water can be either only a stream or a ditch. When construing a statute, we must do so according to the plain meaning of its language. See Norfolk Holdings, Inc. v. Department of Revenue (1991),11 249 Mont. 40, 43, 813 P.2d 460, 461. He re, the Streambed Preservation Act and the Steam Access Act each use two entirely different definitions for designating what bodies of water are covered under their respective provisions. The Stre ambed Preservation Act never refers to a ditch, and, conversely, th e Stream Access Act never refers to a natural perennial-flowing stream. Compare § 75-7-103, MCA (defining terms under the Streambed Preservation Act) with § 23-2-301, MCA (defining terms under the Stream Access Act). Neither the Streambed Preserva tion Act nor the Stream Access Act states that if a body of water is not a streamunder the Streambed Preservation Act, it is necessarily a ditch under the Stream Access Act. Therefor e, while the BCD’s decision on the Mitchell Slough’s status as a stream is pot entially significant, the decision, regardless of its outcome, does not necessarily determ ine whether the Mitchell Slough is a ditch under the Stream Access Act. These are instead two separate factual inquiries. 22¶ A writ of prohibition “is ju stified only by extreme ne cessity, when the grievance cannot be redressed by ordinary proceedings at law, or in equity, or by appeal.” State ex rel. Morse v. Justice Court (1981), 192 Mont. 95, 97, 626 P.2d 836, 837 (quoting State ex rel. Browne v. Booher (1911), 43 Mont. 569, 571, 118 P. 271, 272). The existence of another remedy, even if inconv enient and indirect, prevents a party from seeking a writ of prohibition. See Morse , 192 Mont. at 97-98, 626 P.2d at 837. In the interest of both judicial economy and agency efficiency, an e xhaustion of administrative remedies allows a governmental entity to make a factual record and to correct its own errors within its specific expertise before a court interferes. See Burlington Northern , 595 F.2d at 513.12 Once the BCD has determined the status of th e Mitchell Slough, nothing in this opinion prevents the BRPA from seeking judicial re view of the BCD’s declaratory rulings. See § 2-3-113, MCA. For these reasons, we will not grant a writ of prohibition to stop the BCD from making the initial determination of whether it may decide if the Mitchell Slough is a “natural perennial-flowing stream.” Therefore, 23¶ IT IS HEREBY ORDERED that the BRP A’s petition for a writ of prohibition is
DENIED. 24¶ The Clerk of Court is directed to notify the parties of this Or der by mailing a copy to the counsels of record.13 DATED this 4 th day of April, 2002.
/S/ KARLA M. GRAY /S/ JIM REGNIER /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ TERRY N. TRIEWEILER /S/ JIM RICE /S/ WM. NELS SWANDAL Wm. Nels Swandal, District Judge siting for Justice W. William Leaphart