No. 81-209 

IN THE SUPREMF: COURT OF THE STATE OF MONTANA 

1982 

STATE ex rel., INTAKE WATER CO., 

a Delaware Corporation, 

Plaintiff and Relator and Appellant, 

vs. 

BOARD OF NATURAL RESOURCES & CONSERVATION 

OF THE STATE OF MONTANA et al., 

Defendants Respondents and 

Respondents, 

and 

UTAH INTERNATIONAL, INCORPORATED, a 

Delaware corporation, 

Defendant, Respondent and Respondent. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Honorable Jack Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

Henry Loble argued and Peter Pauly, argued, Helena, 

Montana 

Loble and Pauly,Helena, Montana 

For Respondents: 

Donald MacIntyre, Dept. of Natural Resources, argued, 

Helena, Montana 

For Respondent: 

Poore, Roth, Robinson, Butte, Montana 

Urban L. Roth argued, Butte, Montana 

Submitted: February 26, 1982 

~ecided: ~pp 15 

~iled: APR 1 5 1982 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Relator Intake Water Company filed a petition for a writ 

of mandate to compel the Board of Natural Resources and 

Conservation and the Department of Natural Resources and 

Conservation to assign a priority date of January 14, 1975, to 

the water rights application of defendant Utah International, 

Inc. The District Court dismissed Intake's petition. We affirm. 

On November 20, 1973, Utah filed its application in 

Wyoming, on Wyoming forms, to appropriate 106,730 acre feet from 

the Powder River, one of the rivers subject to the Yellowstone 

River Compact, section 85-20-101 et seq., MCA. The water was to 

be diverted in Wyoming for ultimate uses in Montana which include 

industrial, irrigation, municipal and recreation. 

Pursuant to Art. VII B of the Compact, the Wyoming state 

engineer sent duplicates of Utah's application to Montana which 

were received by the Department on December 4, 1973. 

Article VII B & C provide as follows: 

"B. Each claim hereafter initiated for an 

appropriation of water in one signatory state for 

use in another signatory state shall be filed in 

the office of the state engineer of the signatory state in which the water is to be diverted, 

and a duplicate copy of the application or 

notice shall be filed in the office of the state 

engineer of the signatory state in which the 

water is to be used. 

"C. Appropriations may hereafter be ad j udicated 

in the state in which the water is diverted, and 

where a portion or all of the lands irrigated 

are in another signatory state, such adjudications shall be confirmed in that state by the 

proper authority. Each adjudication is to conform with the laws of the state where the water 

is diverted and shall be recorded in the county 

and state where the water is used." 

These duplicates contained much of the same information that is 

required on the Montana forms. 

On March 15, 1974, the Department notified Utah that if 

it filed the information for the same project on Montana's forms, 

the priority date of November 20, 1973, would be retained. The 

Department noted that the filing would be pursuant to sections 
85-2-301 and 85-2-302, MCA, the latter of which provides in pertinent part: 

"The department shall re turn a defective application for correction or completion together 

with the reasons for returning it. An application does not lose priority of filing because of 

defects, if the application is corrected, 

completed, and ref iled with the department 

within 30 days after its return to the applicant 

or within a further time as the department may 

allow. -- If an application -- is not corrected and 

completed within 30 days or within a further 

-- time as the depar~eali?iws, up to 18 months, 

the prioritydatehmication --- shall be 

the date of ref iling the application withthe 

corrections with the department. An application 

not corrected within 18 months shall be 

terminated." (Emphasis added.) 

On April 4, 1974, Utah replied that they intended to file applications for beneficial water use permits on the forms prescribed 

by Montana. 

On September 27, 1974, Intake filed a Montana application 

with the Department and simultaneously filed a Wyoming application with the Wyoming state engineer. Duplicates of each application were filed in the other state at the same time. Intake 

plans to divert ( for industrial, municipal, irrigation and other 

uses) 564,400 acre feet from the Powder River in Montana by a dam 

and resulting reservoir which will extend from Montana into 

Wyoming. 

On November 13, 1974, the Department informed Utah that 

the Department had not yet received the applications for permits 

to appropriate the water on the Montana forms. On January 14, 

1975, Utah filed the appropriate forms and paid the filing 

fee. The Department assigned Utah the Wyoming priority date 

of November 20, 1973. Intake made repeated demands upon the 

Department to change the priority date that had been assigned to 

the applications filed by Utah, contending that the priority date 

should have been the date that the corrected documents were filed 

with the Department, January 14, 1975. The Department refused to 

do so. 

On March 6, 1975, Intake filed an action with the District 
Court of ~ewis and Clark County seeking a writ of mandate to compel the Board and the Department to assign a priority date of 

January 14, 1975, to Utah's application. On the same day the 

District Court issued an alternative writ of mandate requiring 

the Board and the Department to show cause why they had not 

assigned the requested priority date . On August 21, 1975, plaintiff filed an amended application 

for writ of mandate and defendants filed a motion to quash and 

dismiss the action. About October 14, 1975 (and still within 

the time allowed by the State District Court for the parties to 

file briefs in response to the above motions and to answer 

interrogatories), Utah filed a declaratory judgment action 

against Intake in Federal District Court in Billings and asked 

that court to adjudicate the rights of both parties in their 

attempts to appropriate the Powder River waters, Utah Internat' 1 

Inc. v. Intake Water Co. (1976), 484 F.Supp. 36. 

On December 15, 1975, the State District Court stayed all proceedings in that court pending a ruling of the Federal District 

Court. The Federal District Court declined jurisdiction but 

cons trued the Yellows tone River Compact to require the application of Wyoming law and stated that Wyoming courts did not have 

sole jurisdiction, 484 F.Supp. at 45. 

On January 8, 1980, the State District Court dissolved its 

stay and allowed further briefs and prehearing conferences. On 

February 25, 1981, after hearing, the District Court granted 

defendants' motions to quash and dismiss the amended application 

in a 20-page order in which the District Court found no clear 

legal duty under the Yellowstone River Compact or Montana water 

laws requiring the Department to assign the later priority date 

requested by Intake. On March 16, 1981, the ~istrict Court 

entered judgment dismissing with prejudice any further mandamus 

proceedings by Intake but without prejudice to any other remedy 

Intake might have. Intake appeals. 
The issue on appeal can be stated as follows: Should a 

writ of mandamus issue to require the Department to assign a 

priority date of January 14, 1975, to Utah's water rights application? 

All parties agree that a writ of mandate can be used to 

compel the performance of an act which the law requires as a duty 

resulting from an office. Section 27-26-102, MCA, provides in 

pertinent part: 

"When ---- and by whom issued. (1) It may be issued 

by the supreme court or the district court or 

any judgemof the district court to any inferior 

tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an 

office . . ." 

It is equally clear that the writ will only issue where there has been 

a showing that a clear legal duty exists and there is no speedy 

or adequate remedy in the ordinary course of law. Cain v. 

Department of Health (1978), 177 Mont. 448, 582 P.2d 332. 

The basic thrust of Intake's argument is that Montana's 

Water Use Act controls over the Compact, mandating the assignment of the January 14, 1975, priority date. Intake argues 

that there are various reasons why a writ of mandate lies in the 

instant suit. 

First, Intake contends that a writ of mandate lies to compel the performance of a nondiscretionary act, McCarten v. 

Sanderson (1941), 111 Mont. 407, 109 P.2d 1108, and the assignment of Utah's priority date is such an act. Intake further 

cites sections of Montana's Water Use Act and reasons that the 

Department has no discretion to assign an earlier date than the 

date Utah's applications were received on the Montana forms. 

These sections provide in pertinent part : 

"85-2-401. Priority . . . " (2) Priority of appropriation made under this 

chapter dates from the filing of an application 

for a permit with the department . . . "85-2-302. Application for permit. Except as 

otherwise provided in (1) and (2) of 85-2-306, a 

person may not appropriate water or commence 

construction of diversion, impoundment, 
withdrawal, or distribution works theref or 

except by applying for and receiving a permit 

from the dewartment. The awlication shall - 

be 

-- made on a fbrm prescribed -- b;* the department." 

(~mphasis added.) 

Second, Intake argues that a writ of mandate is a proper 

remedy to compel the undoing of a thing wrongfully or improperly 

done that denies a person the rights to which he is entitled, 

citing State ex rel. Mallott v. Cascade Co. (1933), 94 Mont. 394, 

22 P.2d 811. Other reasons given by Intake for the issuance of a 

writ of mandate include: if an agency follows a fundamentally 

wrong rule, the agency can be compelled to follow the law by 

mandamus, citing State ex rel. Bourquin v. State Board of 

Equalization (1923), 67 Mont. 340, 215 P. 667; and an agency has 

an implied legal duty to undo any action taken in violation of a 

statute, citing Parks v. Board of Co. Commissioners of Tillamook Co. (1972), 11 0r.App. 177, 501 P.2d 85. 

Intake also argues that the application of Compact Article 

XVIII to Article VII (set out above) results in the conclusion 

that nothing in the Compact is intended to divest Montana of 

jurisdiction over its allocated waters and thus the provisions of 

Montana's Water Use Act should apply. Article XVIII provides as 

follows: 

"Article XVIII 

"No sentence, phrase, or clause in this compact 

or in any provision thereof shall be construed 

or interpreted to divest any signatory state or 

any of the agencies or officers of such states 

of the jurisdiction of the water of each state 

as apportioned in this compact ." 

The Board, the Department and Utah contend that a writ of 

mandate should not issue for several reasons. First, the 

Department did not violate any clear legal duty but followed the 

controlling laws of the Compact and Act. These parties reason 

that the Compact is similar to a treaty, since it was approved by 

Congress, and state law is subordinate to it. Since Article VII, 

paragraph B, of the Compact states that the adjudication is to 

conform with the laws of the state of diversion, the Department 
correctly gave Utah the Wyoming priority date. These parties 

point out that in the Wyoming adjudication process, the priority 

dates relate back to the date of the application, i.e. November 

20, 1973. 

Also, these parties argue that a writ of mandate cannot 

issue because Intake has plain, speedy and adequate administrative remedies; that the Department did not follow a fundamentally 

wrong rule; and that a writ of mandate is not a proper remedy to 

undo an act already done. Finally, respondents contend that the 

Department did not divest itself of its jurisdiction of the water 

allocated to Montana under the Compact, i.e. the Department 

required Utah to correct its filings on the Montana forms 

insuring that water charged against its Compact allocation is 

beneficially used. 

We note that this Court has recently addressed our scope 

of review on application for a writ of mandate: 

"This Court is aware that a District Court's 

decision to grant or deny a writ of mandate is a 

matter of discretion and will be sustained on 

appeal in the absence of a showing of abuse of 

discretion ." Ingram-Clevenger, Inc. v. Lewis 

and Clark County (1981), Mon t . 636 

P.2d 1372, 1374, 38 ~t.~ep.96, 1699. 

The District Court in this case did not abuse its discretion in 

denying the writ. 

Here a writ of mandate cannot issue because there is no 

clear legal duty requiring the Department to assign Utah the 

January 14, 1975, priority date. Cain, supra. The Compact, 

signed by Wyoming, Montana and North Dakota and ratified by 

Congress (on October 20, 1951) has the status of a treaty and 

state law is subordinate to it. See Hinderlider v. LaPlata River 

& Cherry Creek Ditch Company (1938), 304 U.S. 92, 58 S.Ct. 803, 

82 L.Ed 1202 (an interstate compact between Colorado and New 

Mexico was found to be controlling over a Colorado State water 

decree) . Thus, Montana's water statutes are subordinate to the 

Compact provisions. 
Article VII, Section C, of the Compact provides that 

each adjudication must conform with the laws of the state where 

the water is diverted. Wyoming is the state of diversion in this 

case. Intake does not attack Utah's original filings in Wyoming 

on November 20, 1973. Thus, the Department correctly assigned 

the November 20, 1973, priority date to Utah in conformity with 

Wyoming law as required by the Compact. 

Intake could not prevail even under Montana law. The 

Department is given the discretion under Montana's Water Use Act 

of allowing up to 18 months for a correction of defective filing. 

Utah filed the appropriate Montana forms with the Department 

within that period. The Department correctly assigned Utah the 

priority date of its first filing. It had no clear legal duty to 

do otherwise. 

Af f irmed . 

Chief Justice