No. 80-96 INTHE SUPREME COURT OF THE STATE OF MONTANA

CABINET RESOURCE GROUP, A Montana Non-profit Corporation, MONTANA WILDERNESS ASSOCIATION, 

### a Montana Non-profit Corporation,Plaintiffs and Respondents,

MONTANA DEPARTMENT OF STATE LANDS, MONTANA DEPARTMENT OF HEALTH, and ASARCO

## , INC

# ., Defendants and Appellants.

Appeal from: 

### ~istrict Court of the First Judicial District, In and For the County of Lewis and Clark. Honorable Gordon Bennett, Judge presiding. Counsel of Record: For Appellants: Murphy, Robinson, Heckathorn & Phillips, Kalispell,

Montana John L. Neff, Spokane, Washington Hughes, Bennett, Kellner & Sullivan, Helena, Montana John F. North, Dept. of State Lands, Helena, Montana Mona Jamison, Dept. of Health, Helena, Montana For Respondents : Morrison Law Offices, Missoula, Montana Goetz and Madden, Bozeman, Montana

Filed: Submitted on briefs: July 22, 1980 Decided :

## AU

# G2

## 5

# 19119Mr. 

### Justice Gene B. 

### Daly delivered the Opinion of the Court. Plaintiffsbrought this amended action inthe District 

### Court, Lewis and Clark County, seeking 

### a writof mandamus and declaratoryjudgments against the Montana Department of StateLands (DSL) and the Montana Department of Health and Environmental Sciences (DHES). Severalmotions were filed by defendants, including a motion filed by defendant ASARCO, Inc., to change venue from Lewis 

### and Clark County toLincoln County. On January 28, 

### 1980, the Honorable Gordon R. 

### Bennett issued an opinion and order denying defendant ASARCO's motion for change of venue. ASARCO, Inc., appeals. ASARCO, Inc., is

### developing a major copper-silver mine and oreprocessing complex adjacent toMount Vernon in the CabinetMountains, approximately seventeen miles south of Troy, Montana. DSL and the United StatesForest Service jointly prepared both draftand finalenvironmental impact statements on the proposed development, and on November 27, 1978, DSL issued an operatingpermit. The plaintiffs inthis action are two Montana nonprofit corporations, the Cabinet Resources Group and the Montana Wilderness Association; the former has 

### itsprincipal place of business inLibby, Lincoln County, Montana, and the latter inBozeman, Gallatin County Montana. Defendants DSL and DHES are 

### agencies of the State of Montana with their offices inHelena, Lewis 

### and Clark County, Montana. ASARCO, Inc., is a New 

### Jersey corporation registered and doing business inMontana with offices and an authorized agent for service of process inHelena, Lewis 

### and Clark County, Montana. DSLis 

### charged with the responsibility of administering the Hard Rock ~eclamation Act. Pursuant to that responsibility, DSL must review, and subsequently grant or deny, ahard rock mining permit based upon the applicant's mining plan and thatplan's conformance with water quality, 

### air quality, mine 

### wastedisposal, and reclamation standards. ~efendant DHES 

### is charged with the responsibility of administering Montana water quality laws. Pursuant to that responsibility, DHES must issue or deny permits for discharge of pollutants into statewaters. Plaintiffs charge thatwhen DSL approved the mining permit 

### it violated the Montana Environmental Policy Act, the 1972 Montana Constitution, and the Hard Rock Reclamation Act. The complaint also alleges that DHES violated state 

### water quality 

### lawswhen 

### it refused torequire thatASARCO obtain a pollution discharge permit. Claiming that 

### recreation and aestheticbenefits derived from the geographic region of the ASARCO mine 

### sitewillbe adversely affected, plaintiffs seek 

### a declaratory judgment of legal interpretation of statutory dutiesmade by DSL and DHES. They also seek 

### a 

### writof mandamus torequire the agencies' compliance with their duties. Neither the 

### meritsof the declaratory judgment nor the merits of the petition for

### writof mandamus arebefore this Court on appeal. The sole issue tobe decided 

### iswhether the trial court properly denied the motion of defendant ASARCO, Inc., for a change of venue from Lewis and Clark County to Lincoln County. On August 2, 1979, defendant ASARCO, Inc., filed a motion for a change of venue for the following reasons: (1) proper venue is inthe county inwhich the real property involved 

### is located, pursuant to section 25-2-103, MCA; (2) for the convenience of witnesses; and 

### (3) the ASARCO operations inissue areinLincoln County.Section 25-2-103, MCA, does not appear tobe intended for this type of action. Cases brought under that statute deal with determination and recovery of proprietary inter

### ests in

### real property, not the environmental interests claimed by plaintiffs. Fraser v. Clark (1954), 128Mont. 160, 273 P.2d 105; Beavers v. Rankin (1963), 142 Mont. 570,

In the present case plaintiffs arerequesting declaratory judgments and mandamus relief. The general venue statutes, therefore, apply. BillingsAssociated Plumbing v. Emerson (1977), 172Mont. 369, 563 P.2d 1123; Lunt 

### v. Division of Workmen's Comp., Dept. of Lab. & I. (1975), 167 Mont. 251, 537 P.2d 1080. Because this action 

### is against stateagencies and defendants arerequesting 

### a change of venue, sections 25-2-105 and 25-2-201, MCA, are specifically applicable. They state: "Actions against

### a public officer orperson specifically appointed to execute his duties for an actdone by him invirtue of his office or against 

### a person who, by his command or inhis aid, does anything touching the duties of such officer must be tried inthe county where the cause or some part thereof arose, subject to the power of the court to change the place of trial." Section 25-2-105, MCA. "The Court or judge must, on motion, change the place of trial inthe following cases: 

## "(1)when the county designated in the complaint 

### is not the proper county; 

### "(2) when there 

### isreason tobelieve that an impartial trialcannot be had therein; "(3)when the convenience of witnesses and the ends of justice would be promoted by the change." Section 25-2-201, MCA. There 

### isno dispute that a change of venue pursuant to section 25-2-201(1), MCA, isnot a matter of discretionwith the DistrictCourt, but ismandatory if the county inwhichthe actionwas filed "isnot the proper county." Guthrie v. Mont. Dept. of H. and E. Sciences (1977), 172Mont. 142, 561 P.2d 913; Lunt v. Division of Workmen's Comp., Dept. of Lab. & I., supra. In Guthrie 

### we established the general 

### test relating to proper venue: "Thus the answer to the question of proper venue under section 93-2902 (2), R.C.M. 1947 [now section 25-2-105, MCA], 

### lies inthe analysisof two dependent variables, the nature of the cause of action and the time and place where 

### it springs into existence." 561 P.2d at916. ASARCO argues that the proper county 

### is the county in which the alleged harm 

### is threatened, the harm being caused by the physical alterationof the land, and not by actions

or inactions of public agencies wherever they may be situate. Plaintiffs contend thatwhen the action 

### is one for mandamus relief, proper venue 

### lies inthe county where the public official or agency resides. 

### In an attempt tounravel the inextricably intertwined standards of nature, 

### time and place of the cause of action to determine proper venue, 

### it isnecessary to look 

### atcase law as

### it applies to the relevant statutes. An action to enjoin enforcement of an order of the Public Service Commission reducing utilityrates from natural gas service in two counties was brought inMontana Dakota UtilitiesCo. v. Public Service Com'n (1940), 111 Mont. 78, 107 P.2d 533. In that case we held thatwhere a cause of action 

### is the threatened enforcement or operation of an order, "itisnot the mere making of the order but the place where it isput inoperation thatdetermines where the cause of action arose.

### "Sixmonths later, however, inBergin v. Temple (1941), 111 Mont. 539, 111 P.2d 286, we analyzed the clause "where the cause or some part therof arose" and arrived ata more refined rule. Defining "cause of action" as the right which



### a party has to institute a judicial proceeding, and citing Anglo American L.M.&A. Co. v. Lombard (8thCir. 1904), 132 F. 721, 

### we saw "arose" as the key word and stated: "The place where a cause of action arises 

### is tobe determined by inquiring where the actor breach occurs which gives the

cause of complaint and creates the necessity for bringing an action." Bergin, 111 P.2d at289. Inmaking such an inquiry 

### it is essential to determine the objective of the complaint. The objectiveof the present complaint 

### ismandamus. In Gildroy v. Anderson (1972), 159 Mont. 325, 497 P.2d 688, an action to enjoin the governor from implementing an executive order, thisCourt discussed Montana Dakota Utilities and held thatbecause the plaintiff was attacking the official acts of the governor exceeding his legislative authority, venue was proper inLewis and Clark County. Furthermore, when the nature of the action 

### ismandamus, 

### we established inLunt, supra, venue 

### isproper inthe county where the public official, whose act the petitioner seeks to compel, resides. The plaintiff inGuthrie sought topermanently enjoin the defendants from physically altering land in 

### a subdivision until sanitary restrictions were properly lifted and the plat approval properly secured. Inholding that the nature of the cause of actionwas toprevent irreparable harm inTeton County, and therefore that 

### iswhere proper

venue should be, 

### we attempted to alleviate the apparent conflictbetween Montana Dakota Utilities and Lunt by stating:

# ".

. . [InLunt] the action was for mandamus. It 

### is difficult to imagine mandamus, based 

### as it 

### is on neglect or refusal by a public official toperform a ministerial duty, which did not arise 

### as the Court said inLunt 

## '.

# . . in the county where the public official officially refuses to actor neglects to act.'" 561 P.2d at916. Recently 

### we decided 

### a case inwhich the nature of the

cause of action was identical to that inthe case atbar. InMcGrath v. Dore (1978), 177 Mont. 179, 580 P.2d 1385, 35 St-Rep. 957, the Silver Bow County Assessor brought 

### a claim for relief in the form of declaratory judgment and a mandamus action against the Department of Revenue. We ruled that the alleged wrongful 

### acts of the Department of Revenue, 

### i.e., the neglectful or intentional failure topay full amount of wages allegedly due petitioner, occurred inLewis and Clark County, hence giving 

### rise topetitioner's cause of action 

### in mandamus in that county. Herewe conclude the alleged wrongful acts, 

### i.e., DSL's issuance of an operating permit and DHES's refusal to

### requirepollution discharge permits, occurred 

### inLewis and Clark County, thus allowing plaintiffs' cause of action for declaratory judgment and mandamus. The issue of inconvenience of witnesses 

### was not raised on appeal and, therefore, 

### it need not be dealtwith atthis time. The DistrictCourt's order denying defendant ASARCO's motion for a change of venue 

### is affirmed.

r Justice 1 We concur: 

# 3&4d

# %4 Chief Justice

participate.