No. 13600 IN THE SUPREME COURT OF THE STATE OF MONTANA

A. B. GUTHRIE, JR., ALICE GLEASON; KENNETH GLEASON; and MONTANA WILDERNESS ASSOCIATION, Plaintiffs and Respondents,-vsMONTANA DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES, Defendants and Appellants, BOARD OF COUNTY COMMISSIONERS, TETON COUNTY; J. R. CRABTREE; JAMES K. CRAWFORD; and ROBERT W. JENSEN, Defendants.

Appeal from: District Court of the First Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellants: Church, Karris, Johnson and Williams, Great Falls,

Montana M. 0. Wordal argued, Great Falls,Montana G. Steven Brown, Helena, Montana Stan Bradshaw argued, Helena, Montana Charles M. Joslyn, County Attorney, argued,

Choteau, Montana For Respondents: James H. Goetz argued, Bozeman, Montana Peter M. Meloy, Helena, Montana Gregory L. Curtis, Choteau, Montana

Filed:

# MAR131977 Submitted: January 13, 1977 Decided :

## MAR 1

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### 19i7Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from denial of a motion for change of

venue in an action for an injunction in the district court,Lewis and Clark County. Plaintiffs in the action areA.B. Guthrie,Jr.; Alice and Kenneth Gleason; and the Montana WildernessAssociation. Guthrie alleges he owns land about twomiles from the proposed Arrowleaf West Subdivision, "takes general aesthetic appreciation of the area" and "engages inhorseback riding,hiking and fishing in the general area". Alice and Kenneth Gleason allege they own a dude ranch about a mile from the proposed development and they earn their livelihood from the dude ranch. They allege they engage in "general recreationalpursuits such as hiking, riding, fishing, and hunting." Gleasons also allege their livelihood is "dependent upon the said area remaining aestheticallypleasing, sparsely populated, generally undeveloped, and well populated with fish and wildlife

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TheMontana Wilderness Association alleges that about eight of its members reside inTeton County and that numerous members "make general recreational,aesthetic,and environmental

use of the public lands and certain of the private lands in the generalvicinity of the proposed ArrowleafWest Subdivision." Defendants in the action for injunction are: J. R. Crabtree, James M. Crawford, and Robert

### W. Jensen, owners and developers of the proposed subdivision which is to consist ofweekend recreatkonal secondhomes; the Teton County Commissioners; and the Montana Department of Health and Environmental Sciences.The relief requested is an injunction. Plaintiffs set out three basic reasons for this relief: 

### 1) They allege the Montana Department ofHealth and Environmental Sciences' act of lifting the sanitary restrictions imposed by statute to force compliance .-:w%ths. health and sanitation laws constitutes a recommendation or report on proposals forprojects,programs for projects, programs, legislation and other major actions of state government significantly affecting the quality of the human environment, therefore the Departmentmust do an environmental impact statement. It is alleged no environmental impact statementwas prepared and until one is prepared, the sanitary restrictionsmay not be legally lifted. 2) Plaintiffs allege the Teton County Commissioners did not comply with the Subdivision and Platting Act in that they did not (a) give proper notice, 

### (b) hold the required public hearing,nor (c) make the findings required. 3) Plaintiffsallege the individuals_namedas defendants

are proceeding to physically alter the land illegallybecause they are acting pursuant to permission granted by the alleged illegal acts of the Department and the Teton County Commissioners and that suchphysical alteration is doing irreparableharm to plaintiffb! interests. Plaintiffs' complaint asks that defendants be prohibited fromproceedingwith actions which would physically alter the character of their land until the Department complieswith its statutory duties and the Teton County Commissioners complywith their statutory duties. It also requests a mandatory injunction ordering reinstatement of the sanftary restrictions and with-drawal of the approval of the plat. A temporary injunction

was requested and granted. At the time of this appeal, the statusdof the matterdss this: The complaintwas filed and amended. Judge Bennett was disqualified and Judge Brownlee assumed jurisdiction. Defendants filed their motion for change of venue which was briefed and submitted to the district court,which denied the motion in these words: "It appears to the Court that any trialupon the factual questions based upon the actual impact of the proposed subdivision inTeton County should properly be held in Teton County;however,it appears to this Court that the Complaint charges the Department of Health with not performing their statutory duties, and it further appears to the Court that venue for such a charge is properly in Lewis and Clark County. 

# * * *" Two statutory sections are involved. Section 93-2902(2), R.C.M. 1947,provides: "Actions for the following causesmust be tried in the county where the cause, or some part thereof, arose, subject to the like power of the court to change the place of trial:

"2. Against a public officer, or person specially appointed to execute his duties, for anact done 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." Section 93-2906(1), R.C.M. 1947,provides: "The court or judge must, onmotion, change the place of trial in the following cases: "1. When the county designated in the complaint is not the proper county."Plaintiffs argue refusal to grant a motion for change venue iswithin the sound discretion of the district court. This 

### is true of motions under subsections 2 and 3 of section 93-2906which are clearly discretionary in their terms: Subsection 

### 2provides: ' "When there is reason to believe that an impartial trial cannot be had therein

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Subsection 3 provides: "When the convenience ofwitnesses and the ends of justicewould be promoted by the change." It is clear the making of such findings is within the court's discretion. 'However,Montana cases considering change of venue under section 93-2906(1) are contrary. InMcKinney v. Mires, 95Mont. 191, 195, 26 P.2d 169, the Court stated: "On Wmpliance with the statute and on a proper showing that the actionwas commenced in the wrong county, a defendant is entitled, on this first ground, to a change to the proper county as a matter of right." In Johnsonv. Clark, 131Mont. 454,460, 311 P.2d 772, the Court said: "The above-quotedprovisions of section 93-2906 are mandatory and, on timely and proper application, require the district court to change the venue. [Citing cases].'I Johnson was reaffirmed in Lunt v. Division of Workmen's Compensation, 167Mont. 251, 537 P.2d 1080, 32 St.Rep. 662, 663, when the Court stated: "A district court is required to grant a motion for change of venue when the county designated in the complaint is not the proper county. Section 93-2906,R.C.M. 1947; Johnsonv. Clark, 131Mont. 454, 311 P.2d 772.

# * **" Section 93-2902(2), R.C.M. 1947, the second venue statute involved requires each cause be examined before a determination of the proper venue may be made. The determination is into the nature of the cause of action involved and where it arose.Thebasic purpose of this venue provision is discussed in Regents of University of Cal. v. Superior Court, 91Cal.Rptr. 57,476 P.2d 457, 461. There the California Court discussing a similarprovision said: "The underlying purpose of statutory provisions as to venue for actions against state agencies is to afford to the citizen a forum that is not so distant and remote that access to it is impractical and expensive. To that end, such provisions should be liberally construed in favor of the private litigant. 

# * **" Here, the Department of Health and Environmental Sciences joined defendants in the motion for change ofvenue and it is the plaintiffs, residents of Teton County and an organizationwhich alleges that its members use the area inTeton County,who argue that venue is proper in Lewis and Clark County. They argue that because they alleged as a part of the basis for injunction that the Departmenthad a duty to do an environmental impact statement, which was not done, therefore the "cause, or some part thereof, arose" in Lewis and Clark County. 

## he phrase "cause, or some part thereof, arose" was discussed at lengthby this Court in Berginv. Temple, 111Mont. 539, 546, 111P.2d 286. There the Court said: 

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# ** a cause of action exists when the plaintiff has a right to institute a judicialproceeding and he has the right under the circumstances described here themoment he can show that the defendanthaswrongfully infringedhis liberty. ".'Arise,' the verb ofwhich 'arose' is the past tense, means,

## ** * 'to spring up, originate; to come into being or notice, to become operative, sensible, visible, or audible; to present itself'; etc. Thus a cause of action ariseswhen it springs up, originates, comes intobeing, becomes operative,presents itself.

# ** *" Thus, the answer to the question ofproper venue under section 93-2902(2), R.C.M. 1947, lies in the analysis of twodependent variables, the nature of the cause of action and the time and place where it springs into existence. Here, the action is for an injunction which in this case sprung into existence at the time and the place where the alleged irreparable harmwas threatened. That occurredwhen defendants began work physically altering the land. The alleged Illegal acts of the Department and the Teton County Commissioners could be enjoined, if at all, only where there was some threatened irrepar* 1; ..+ able harm to plaintiffs' interests. Plaintiffs assert that Lunt v. Workmen's Comp. Dept. of Labor & Ind., 167Mont. 251, 537 P.2d 1080, 1081, 32 St.Rep. 662, 664, is controlling here. There the actionwas for mandamus. It is difficult to imaginemandamus,based as it is onneglect

or refusalby a public official to perform a ministerial duty, which did not arise as the Court said in

# - Lunt

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# * * in the county where the public official officially resides. 

### It is at that place where he officially refuses to act or neglects to act. 111 Gildroyv. Anderson, 159Mont. 325, 328,329,497 P.2d 688, does not support plaintiffs' argument. There the Courtwas careful to point out: "Plaintiffs' complaint does not challenge the merits of the operation of the executive order in redistricting the affected counties as the cause of their injury. Rather, the claim is that an injury arises from an officialact of the Governorwhich exceeds his powers and authority by reason of its alleged unlawful contravention of express legislative action. The question is one of the respective powers and authority of two branches of government, not the merits of the operation of the executive order.

''Byreason of the novelty of the subject matter of this suit,being a test of the powers and authority of twobranches of government, it is clearly distinguishable from the facts found controlling in the Montana-Dakota Utilities Co. case heretofore cited. The circumstances of this case bring it within the rule that a cause of actionbased upon official conduct of a state officer performable at the seat of the state government arises in the county of his official residence." Montana-Dakota Utilities Co. v. Public Service Commission, 111Mont. 78, 80, 107 P.2d 533,would be controllinghere but for the language in

# - Lunt stating:

It* 

# * *Any portions ofMontana-Dakota Utilities Co. v, Public Service Commission, 111Mont. 78, 107 P.2d 533, inconsistent with this opinion are hereby expressly overruled.I1 Both cases were properly decided, the difference in result is based on the fundamentaldifference between the nature of the

causes of action involved. InMontana-Dakota Utilities Co. the Court said: 

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# * The cause of the action is the threatened enforcement or operation of the order inValley and Phillips counties. 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. Operation of the order is what is allegedwill injure plaintiff. Section 3906, as amended by Chapter 56,Laws of 1937,provides that the orders'shall become operative' within twenty days after their filing. It is the operation of the order that the action seeks to enjoin. True, the complaint also seeks to set aside the order,but only because its operation allegedlywould injure plaintiff byconfiscating its property. The operation of the order will be accomplished, if at all, inValley and Phillips counties where the order is made applicable. It is our view that the cause of action arose inValley and Phillips counties and not in Lewis and Clark county." Montana-Dakota Utilities Co. was discussed with approval in Cecilv, Superior Court Inand For Los Angeles County, 59 C.A.2d 793, 

### 140 P.2d 125, 129,where the California Court responding to an argument like that made by plaintiffs here, said:"It is where the shaft strikes him,not where it is drawn, that counts." Here, the injunction is aimed at stopping irreparableharm inTeton County, that is where the arrow strikes and where venue is proper. The district court's denial of the motion for a change of

venue is reversed.

We Concur: ---- "---"----- 

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