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: MAR 13 1977 

Submitted: January 13, 1977 

Decided : MAR 1 5 19i7 
Mr. 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 are A.B. Guthrie, Jr.; Alice and 

Kenneth Gleason; and the Montana Wilderness Association. Guthrie 

alleges he owns land about two miles from the proposed Arrowleaf 

West Subdivision, "takes general aesthetic appreciation of the 

area" and "engages in horseback 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 recreational pursuits such as hiking, riding, fishing, 

and hunting." Gleasons also allege their livelihood is "dependent 

upon the said area remaining aesthetically pleasing, sparsely 

populated, generally undeveloped, and well populated with fish 

and wildlife ." 

The Montana Wilderness Association alleges that about 

eight of its members reside in Teton County and that numerous 

members "make general recreational, aesthetic, and environmental 

use of the public lands and certain of the private lands in 

the general vicinity of the proposed Arrowleaf West 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 of weekend recreatkonal second homes; 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 of Health 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 for projects, programs for projects, programs, legislation and other major actions of state government significantly 

affecting the quality of the human environment, therefore 

the Department must do an environmental impact statement. It 

is alleged no environmental impact statement was prepared and 

until one is prepared, the sanitary restrictions may 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) Plaintiffs allege the individuals _named as defendants 

are proceeding to physically alter the land illegally because 

they are acting pursuant to permission granted by the alleged 

illegal acts of the Department and the Teton County Commissioners 

and that such physical alteration is doing irreparable harm to 

plaintiffb! interests. 

Plaintiffs' complaint asks that defendants be prohibited 

from proceeding with actions which would physically alter the 

character of their land until the Department complies with its 

statutory duties and the Teton County Commissioners comply with 

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 statusd of the matter dss 

this : 

The complaint was 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 trial upon the 

factual questions based upon the actual impact of the 

proposed subdivision in Teton 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 causes must 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 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." 

Section 93-2906(1), R.C.M. 1947, provides: 

"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." 
Plaintiffs argue refusal to grant a motion for change 

venue is within the sound discretion of the district court. 

This is true of motions under subsections 2 and 3 of section 

93-2906 which are clearly discretionary in their terms: 

Subsection 2 provides: ' 

"When there is reason to believe that an impartial 

trial cannot be had therein * * *.I' 

Subsection 3 provides: 

"When the convenience of witnesses and the ends of 

justice would 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. In McKinney v. Mires, 

95 Mont. 191, 195, 26 P.2d 169, the Court stated: 

"On Wmpliance with the statute and on a proper 

showing that the action was 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 Johnson v. Clark, 131 Mont. 454, 460, 311 P.2d 772, the 

Court said: 

"The above-quoted provisions 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, 167 Mont. 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; Johnson v. Clark, 131 Mont. 

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. 
The basic purpose of this venue provision is discussed in 

Regents of University of Cal. v. Superior Court, 91 Cal.Rptr. 

57, 476 P.2d 457, 461. There the California Court discussing a 

similar provision 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 of venue and it is the 

plaintiffs, residents of Teton County and an organization which 

alleges that its members use the area in Teton 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 Department had 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 length by this Court in Bergin v. Temple, 111 Mont. 

539, 546, 111 P.2d 286. There the Court said: 

"* * * a cause of action exists when the plaintiff 

has a right to institute a judicial proceeding and 

he has the right under the circumstances described here 

the moment he can show that the defendant has wrongfully 

infringed his liberty. 

".'Arise,' the verb of which '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 

arises when it springs up, originates, comes into being, 

becomes operative, presents itself. * * *" 

Thus, the answer to the question of proper venue under 

section 93-2902(2), R.C.M. 1947, 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. 

Here, the action is for an injunction which in this case 

sprung into existence at the time and the place where the alleged 

irreparable harm was threatened. That occurred when 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., 167 Mont. 251, 537 P.2d 1080, 1081, 32 St.Rep. 

662, 664, is controlling here. There 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 resides. It is at 

that place where he officially refuses to act or neglects to 

act. 111 

Gildroy v. Anderson, 159 Mont. 325, 328,329, 497 P.2d 688, 

does not support plaintiffs' argument. There the Court was 

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 

official act of the Governor which 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. 

''By reason of the novelty of the subject matter of this 

suit, being a test of the powers and authority of two 
branches 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 

action based 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, 

111 Mont. 78, 80, 107 P.2d 533, would be controlling here but 

for the language in - Lunt stating: 

It* * * Any portions of Montana-Dakota Utilities Co. v, 

Public Service Commission, 111 Mont. 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 fundamental difference between the nature of the 

causes of action involved. In Montana-Dakota Utilities Co. 

the Court said: 

"* * * The cause of the action is the threatened 

enforcement or operation of the order in Valley 

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 alleged will 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 allegedly would injure plaintiff 

byconfiscating its property. The operation of the order 

will be accomplished, if at all, in Valley and Phillips 

counties where the order is made applicable. It is our 

view that the cause of action arose in Valley and Phillips 

counties and not in Lewis and Clark county." 

Montana-Dakota Utilities Co. was discussed with approval 

in Cecil v, Superior Court In and 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 irreparable harm 

in Teton 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: ---- "---" - ---- w 

' . a/ 

Chief stice