### 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: DistrictCourt 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

# 1982Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Relator IntakeWater 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 defendantUtah International, Inc. The District Court dismissed Intake's petition. We affirm. On November 20, 1973, Utah filed its application in Wyoming, onWyoming 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 inWyoming for ultimate uses inMontana which include industrial, irrigation, municipal and recreation. Pursuant 

### to Art. VII B of the Compact, theWyoming state engineer sentduplicates of Utah's application to Montana which



### were received by the Department on December 4, 1973. ArticleVII B & C provide as follows: "B. Each 

### claim hereafter initiated for an appropriation of 

### water inone signatory statefor use in another signatory 

### state shall be filed in the officeof the state engineer of the signatory state inwhich 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 inwhich the 

### water is 

### to be used. "C. Appropriations may hereafterbe adjudicated inthe 

### state inwhich the 

### water is diverted, and where a portion 

### or allof the lands irrigated are in another signatory state, such adjudications shall be confirmed in that state by the proper authority. Each adjudication 

### is to conformwith the laws of the statewhere the 

### water is diverted and shall be recorded in the county and statewhere 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 filingwould be pursuant 

### to sections85-2-301 and 85-2-302, MCA, the latter of which provides inpertinentpart: "The department shall

### return a defective application for correction 

### or completion together with the reasons for returning it. An application does not lose priority of filingbecause of defects, if the application is corrected, completed, and refiled with the department within 30 days after its return 

### to the applicant orwithin 

### a further 

### timeas the department may allow. If an application isnot corrected and 

### -- 

### -- completed within 30 daysorwithin 

### a further 

### time

### as thedepar~eali?iws,up

# to 18months, 

### -- theprioritydatehmication 

### --- shallbe thedateof refiling the

### applicationwiththe correctionswith the department. An application not corrected within 18months 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 willextend 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 theWyoming priority date of November 20, 1973. Intake made repeated demands upon the Department to change the priority date thathad 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 DistrictCourt of ~ewis and Clark County seeking a writof 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

### writof 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

### writof mandate and defendants filed a motion to quash and dismiss the action. About October 14, 1975 (and still within the timeallowed by the StateDistrict Court for the parties to filebriefs in response to the above motions and to answer interrogatories), Utah filed a declaratoryjudgment action against Intake in Federal District Court inBillings and asked that court to adjudicate the rightsof 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 StateDistrict Court stayed allproceedings in that courtpending a ruling of the Federal District Court. The Federal District Court declined jurisdiction but

cons trued the Yellowstone River Compact to require the applicationof Wyoming 

### lawand stated thatWyoming courts did not have 

### sole jurisdiction, 484 F.Supp. 

### at45. On January 8, 1980, the StateDistrict Court dissolved its stay and allowed furtherbriefs and prehearing conferences. On February 25, 1981, afterhearing, the District Court granted defendants' motions to quash and dismiss the amended application in a 20-page order inwhich the District Court found no clear legal duty under the Yellowstone River Compact 

### or Montana water lawsrequiring 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 Intakemight have. Intake appeals.The issue on appeal can be stated as follows: Should a 

### writof mandamus issue to require the Department to assign a priority date of January 14, 1975, to Utah's 

### water rights application? Allparties agree that a writof mandate can be used to compel the performance of an act which the lawrequires as a duty resulting from an office. Section 27-26-102, MCA, provides in pertinentpart: "When and by whom issued. (1)It may be issued



### ---- by the supreme court 

### or the district court or 

### anyjudgemofthe districtcourt to any inferior tribunal, corporation, board, orperson to 

### compel the performance of an act which the law speciallyenjoins as a duty resulting from an office

# .

# .."

It is equally

### clear that the 

### writwillonly issue where therehasbeen

a showing that a 

### clear legal duty existsand there is no speedy

oradequate remedy in the ordinary course of law. Cain v. Department of Health (1978), 177Mont. 448, 582 P.2d 332. The basic thrust of Intake's argument is thatMontana'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 writof mandate lies in the instant suit. First, Intake contends that a writof mandate lies 

### to compel the performance of a nondiscretionary act, McCarten v. Sanderson (1941), 111Mont. 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 dateUtah's applications

### were received on the Montana forms. These sectionsprovide in pertinentpart: "85-2-401. Priority

# ... "(2)Priority of appropriationmade under this chapter dates from the filingof an application for a permit with the department

# ... "85-2-302. Application forpermit. 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 distributionworks theref

### or except by applying for and receiving a permit from the dewartment. The awlicationshallbe - made on a fbrmprescribed b;* the department." -- -- (~mphasis added.) Second, Intake argues that a writof 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 Stateex 

### rel. Mallott v. Cascade Co. (1933), 94 Mont. 394, 22 P.2d 811. Other reasons given by Intake for the issuance of a writof mandate include: if an agency follows a fundamentally wrong rule, the agency can be compelled to follow the lawby mandamus, citing Stateex rel. Bourquin v. StateBoard of Equalization (1923), 67 Mont. 340, 215 P. 667; and an agency has

an implied legal duty 

### to undo any action taken inviolation of a statute, citingParks 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 toArticle VII (setout above) results in the conclusion that nothing in the Compact is intended to divestMontana 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, orclause in thiscompact 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 

### writof mandate should not issue for several reasons. First, the Department did not violate any clear legal duty but followed the controlling lawsof 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 ArticleVII, paragraph B, of the Compact 

### states that the adjudication 

### is to conformwith the 

### laws of the state of diversion, the Departmentcorrectlygave Utah the Wyoming priority date. These parties point out that in the Wyoming adjudicationprocess, the priority dates 

### relate back to the date of the application, i.e. November 20, 1973. Also, these parties argue that a 

### writof mandate cannot issue because Intake has plain, speedy and adequate administrativeremedies; that the Department did not follow a fundamentally wrong rule; and that a 

### writof mandate 

### is not a proper remedy to undo an act alreadydone. Finally, respondents contend that the Department did not divest itself of 

### itsjurisdiction of the water allocated to Montana under the Compact, i.e. the Department required Utah 

### to correct its filingson the Montana forms insuring thatwater charged against 

### its Compact allocation is beneficiallyused. We note that this Court has recently addressed our scope of review on application for a writof mandate: "This Court is 

### aware that a DistrictCourt's decision to grant 

### or deny a 

### writof mandate is a 

### matter of discretion and willbe sustained on appeal in the absence of a showing of abuse of discretion

# ." Ingram-Clevenger, Inc. 

### v. Lewis and ClarkCounty (1981), Mon

### t

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

### 1699. The District Court in this case did not abuse 

### itsdiscretion in denying the writ. Here a writof 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 (onOctober 20, 1951)has the statusof 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 tobe controlling over a Colorado Statewater decree)

# . Thus, Montana's 

### water statutes

### are subordinate to the Compact provisions.ArticleVII, Section C, of the Compact provides that each adjudicationmust conform with the 

### laws of the state where the 

### water is diverted. Wyoming 

### is the 

### state of diversion in this

case. Intake does not attackUtah's original filings inWyoming

onNovember 20, 1973. Thus, the Department correctly assigned theNovember 20, 1973, priority date 

### to Utah inconformity with Wyoming 

### lawas 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 thatperiod. The Department correctly assigned Utah the priority date of its first filing. It had no clear legal duty to do otherwise. Affirmed

# .

Chief Justice