No. 14877 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

MONTANA HEALTH SYSTEMS,AGENCY, INC., Petitioner, and MONTANA NURSING HOME ASSOC., Petitioner, VS

# . MONTANA BOARD OF HEALTH AND ENVIRONMENTAL SCIENCES, Respondent, and MISSOULA GENERAL HOSPITAL, a non-profit corporation, Intervenor.

Appeal from: District Court of the First Judicial District, In and For the County of Lewis and Clark, Honorable Gordon R. Bennett, Judgepresiding. Counsel of Record: For Appellant: Garlington, Lohn and Robinson, Missoula, Montana For Respondent: Datsopoulos and MacDonald, Missoula, Montana Peter M. Meloy, Helena, Montana Eleanor Parker,Dept. of Health,Helena, Montana

Submitted on briefs: October 25, 1980 

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# - 19l Decided:Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Missoula General Hospital (herein referred to as Hospital) appeals from an order of the Lewis and Clark County District Court denying itsmotion for change of

venue. The sole issuepresented is whether the trial court properly denied the motion for change of venue from Lewis and Clark County to Missoula County. On December 18, 1978, the Montana Board of Health and Environmental Sciences (hereinreferred to as the Board) issued findingsof fact,conclusions and an order granting the Hospital a certificate of need, allowing the Hospital to initiate construction of a 80 bed intermediate care nursing home facility adjacent to the present hospital site in Missoula, Montana. Montana Health SystemsAgency, Inc.

(herein referred to as Montana Health) and the Montana Nursing Home Association (herein referred to asAssociation) appeared and opposed the issuance of the certificate of need at the administrative hearing level. Montana Health and the Association appealed to the Lewis and Clark County District Court seeking judicial review of the Board's order. On February 5, 1979, the trial court allowed the Hospital to intervene. On March 5, 1979, the Hospital filed a motion seeking a change of venue to Missoula County. On April 2, 1979, the trial court entered an order denying the motion for change of venue, determining that section 2-4- 702(2)(a), MCA, was controlling. On April 20, 1979, the Hospital filed a motion to reconsider. On June 6, 1979, the trial court entered a memorandum and order denying the motion to reconsider, affirming the prior ruling that venue should remain in Lewis and Clark County. This appeal followed. -2-The Hospital does not contest the procedural course taken by Montana Health and the Association in appealing the Board's administrativedecision to grant the certificate of need. However, the Hospital contends that as a private litigantdoing business in Missoula County, it is entitled to a change of venue to Missoula County under section 25-2- 201, MCA, and section 25-2-105,MCA; general statutory provisions relating to venue. The Hospital further contends that Missoula County is the proper county for judicial review because the certificateof need is operative only in Missoula County, where the nursing home is to be constructed. Montana Health and theAssociation contend that Lewis and Clark County is the proper county for judicial review under section 2-4-702, MCA, the venue provision of the Montana Administrative Procedure Act (hereinreferred to as MAPA). Section 2-4-702,MCA, is a statuteproviding for judicial review of the actions of any administrativeagency of the state. Clearly, the Board is an administrativeagency of the state, and judicial review of the Board's order granting the certificateof need is sought in the instant case. Section 2-4-702(2)(a) provides that 

### "[p]roceedings for review shall be institutedby filing a petition in district court within thirty days after service of the final decision of the agency

# . . . Except - as otherwise provided by -statute, the petition shall be filed in the district court for the countywhere the petitioner resides or has his principal place of business or where the agency maintains itsprincipal office." (Emphasisadded.) The language of section 2-4-702

(2)(a), 

### " [elxceptas otherwiseprovided by statute",would indicate that in specific instances, other statutesbe looked to in order to determinevenue. State, Consumer v. Mont. Dept. of Pub. Serv. Reg. (1979), Mont

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## , 593 -3-P.2d 34, 36, 36 St-Rep.646, 649. To the extent of any inconsistency a more specific statutewill control

over a more general statutepertaining to the same subject matter. State,Consumer v. Mont. Dept. of Pub. Serv. Reg., supra, 593 P.2d at 36, 36 St.Rep. at 649;Statev. Holt (1948),121Mont 459, 194 P.2d 651. This case involves the Board's granting of a certificate of need, and section35-301, et seq., MCA, provides the statutory framework relating to the issuance of certificates of need. Section 50-5-306, MCA, specifically provides a right to a hearing and appeal of a decision on an application for a certificate of need,:and contains a specific provision relating to venue. .Section50-5-306(4) provides that 

### " [t] he final decision of the Board shall be considered the decision of the department for purposes of an appeal to district court. Any affected person may appeal this decision to the district court as provided in Title 2, chapter 

### 4,part 7." Title 2, chapter 4;part 7, is that portion of the MAPA relating to judicial review of contested cases. It contains section 2-4-702(2)(a), theMAPA provision relating to venue. Section50-5-306(4) specifically provides that the MAPA provision relating to venue applies. Accordingly, section 2-4-702(2)(a) is the controlling statutoryprovision. The trial courtproperly determined thatvenue should remain in Lewis and Clark County. Affirmed.

We Concur: 

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# v---------------------------- Justices Mr. Justice John C. Sheehy,deeming himself disqualified, did not participate.