No. 80-96 

IN THE 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 G 2 5 19119 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiffs brought this amended action in the District 

Court, Lewis and Clark County, seeking a writ of mandamus 

and declaratory judgments against the Montana Department of 

State Lands (DSL) and the Montana Department of Health and 

Environmental Sciences (DHES). Several motions were filed 

by defendants, including a motion filed by defendant ASARCO, 

Inc., to change venue from Lewis and Clark County to Lincoln 

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 ore processing complex adjacent to Mount Vernon in the 

Cabinet Mountains, approximately seventeen miles south of 

Troy, Montana. DSL and the United States Forest Service 

jointly prepared both draft and final environmental impact 

statements on the proposed development, and on November 27, 

1978, DSL issued an operating permit. 

The plaintiffs in this action are two Montana nonprofit 

corporations, the Cabinet Resources Group and the Montana 

Wilderness Association; the former has its principal place 

of business in Libby, Lincoln County, Montana, and the 

latter in Bozeman, Gallatin County Montana. Defendants DSL 

and DHES are agencies of the State of Montana with their 

offices in Helena, Lewis and Clark County, Montana. ASARCO, 

Inc., is a New Jersey corporation registered and doing 

business in Montana with offices and an authorized agent for 

service of process in Helena, Lewis and Clark County, Montana. 

DSL is charged with the responsibility of administering 

the Hard Rock ~eclamation Act. Pursuant to that responsibility, DSL must review, and subsequently grant or deny, a 
hard rock mining permit based upon the applicant's mining 

plan and that plan's conformance with water quality, air 

quality, mine waste disposal, 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 state waters. 

Plaintiffs charge that when 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 laws when it refused to require that ASARCO 

obtain a pollution discharge permit. Claiming that recreation and aesthetic benefits derived from the geographic 

region of the ASARCO mine site will be adversely affected, 

plaintiffs seek a declaratory judgment of legal interpretation of statutory duties made by DSL and DHES. They also 

seek a writ of mandamus to require the agencies' compliance 

with their duties. 

Neither the merits of the declaratory judgment nor the 

merits of the petition for writ of mandamus are before this 

Court on appeal. The sole issue to be decided is whether 

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 in the county in which the real property 

involved is located, pursuant to section 25-2-103, MCA; (2) 

for the convenience of witnesses; and (3) the ASARCO operations in issue are in Lincoln County. 
Section 25-2-103, MCA, does not appear to be intended 

for this type of action. Cases brought under that statute 

deal with determination and recovery of proprietary interests in real property, not the environmental interests 

claimed by plaintiffs. Fraser v. Clark (1954), 128 Mont. 

160, 273 P.2d 105; Beavers v. Rankin (1963), 142 Mont. 570, 

In the present case plaintiffs are requesting declaratory judgments and mandamus relief. The general venue 

statutes, therefore, apply. Billings Associated Plumbing v. 

Emerson (1977), 172 Mont. 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 

state agencies and defendants are requesting a change of 

venue, sections 25-2-105 and 25-2-201, MCA, are specifically 

applicable. They state: 

"Actions against a public officer or person specifically 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 must be tried in the 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 in the following cases: 

" (1) when the county designated in the complaint is not the proper county; 

" (2) when there is reason to believe that an 

impartial trial cannot 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 is no dispute that a change of venue pursuant to 

section 25-2-201(1), MCA, is not a matter of discretion with 

the District Court, but is mandatory if the county in which 
the action was filed "is not the proper county." Guthrie v. 

Mont. Dept. of H. and E. Sciences (1977), 172 Mont. 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 in the 

analysis of two dependent variables, the nature of the cause of action and the time and 

place where it springs into existence." 561 

P.2d at 916. 

ASARCO argues that the proper county is the county in 

which the alleged harm is threatened, the harm being caused 

by the physical alteration of the land, and not by actions 

or inactions of public agencies wherever they may be situate. Plaintiffs contend that when the action is one for 

mandamus relief, proper venue lies in the county where the 

public official or agency resides. 

In an attempt to unravel the inextricably intertwined 

standards of nature, time and place of the cause of action 

to determine proper venue, it is necessary to look at case 

law as it applies to the relevant statutes. 

An action to enjoin enforcement of an order of the 

Public Service Commission reducing utility rates from natural 

gas service in two counties was brought in Montana Dakota 

Utilities Co. v. Public Service Com'n (1940), 111 Mont. 78, 

107 P. 2d 533. In that case we held that where a cause of 

action is the threatened enforcement or operation of an 

order, "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. " 
Six months later, however, in Bergin v. Temple (1941), 

111 Mont. 539, 111 P.2d 286, we analyzed the clause "where 

the cause or some part therof arose" and arrived at a 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 (8th Cir. 1904), 132 

F. 721, we saw "arose" as the key word and stated: "The 

place where a cause of action arises is to be determined by 

inquiring where the act or breach occurs which gives the 

cause of complaint and creates the necessity for bringing an 

action." Bergin, 111 P.2d at 289. In making such an inquiry 

it is essential to determine the objective of the complaint. 

The objective of the present complaint is mandamus. 

In Gildroy v. Anderson (1972), 159 Mont. 325, 497 P.2d 

688, an action to enjoin the governor from implementing an 

executive order, this Court discussed Montana Dakota Utilities 

and held that because the plaintiff was attacking the official acts of the governor exceeding his legislative authority, venue was proper in Lewis and Clark County. Furthermore, when the nature of the action is mandamus, we established in Lunt, supra, venue is proper in the county where 

the public official, whose act the petitioner seeks to 

compel, resides. 

The plaintiff in Guthrie sought to permanently enjoin 

the defendants from physically altering land in a subdivision until sanitary restrictions were properly lifted and 

the plat approval properly secured. In holding that the 

nature of the cause of action was to prevent irreparable 

harm in Teton County, and therefore that is where proper 

venue should be, we attempted to alleviate the apparent 

conflict between Montana Dakota Utilities and Lunt by 

stating: 
". . . [In Lunt] 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 refuses to act or neglects to act.'" 561 

P.2d at 916. 

Recently we decided a case in which the nature of the 

cause of action was identical to that in the case at bar. 

In McGrath 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 to pay full amount of 

wages allegedly due petitioner, occurred in Lewis and Clark 

County, hence giving rise to petitioner's cause of action in 

mandamus in that county. 

Here we conclude the alleged wrongful acts, i.e., DSL's 

issuance of an operating permit and DHES's refusal to require pollution discharge permits, occurred in Lewis 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 dealt with at this time. 

The District Court's order denying defendant ASARCO's 

motion for a change of venue is affirmed. 

r 

Justice 1 

We concur: 

3&4d 

Chief Justice 

%4 

participate.