# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 23-0311 

# FILED
STATE OF MONTANA, et al., 

### JUN 0 6 2023

Petitioner,

v. MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY, HON. KATHY SEELEY, Presiding,

Respondent. BONNEM Greenwood r::lerk of Supreme Court `qtratr. IlAoritanA

ORDER

Petitioner State ofMontana, et al., seeks a writ ofsupervisory control over the First Judicial District Court, Lewis and Clark County, to reverse its denial ofthe State's motion to dismiss for mootness and for summary judgment in that court's Cause No. CDV-25-2020-0307. The State further asks this Court to stay the proceedings below, currently set for trial to begin June 12, 2023, while this Petition is pending decision. On March 13, 2020, Rikki Held, et al., filed a Complaint for Declaratory and Injunctive Relief, naming the State, the Governor, and various State agencies as the defendants, and alleging various constitutional harms arising from the statutory State Energy Policy (SEP) and what the Plaintiffs refer to asthe "Climate Change Exception"to the Montana Environmental Policy Act (MEPA). The State moved to dismiss the Complaint and on August 4, 2021, the District Court dismissed some claims but allowed others to continue, determining that the Plaintiffs had sufficiently raised a factual dispute
as to whether the SEP and the MEPA contributed to their injuries and that they had adequately established that these injurieswereredressable. The court dismissed the claims for injunctive reliefbut allowed the claims for declaratory reliefto proceed, and it further declined to dismiss the MEPA-related claims for want ofadministrative exhaustion. 06/06/2023

Case Number: OP 23-0311On February 1, 2023, the Statemoved for summaryjudgment in its favor. On April

3, 2023, it further moved for partial dismissal on the basis ofmootness. OnMay 23, 2023, the District Court issued its Order on Defendants' Motions to Dismiss for Mootness and for Summary Judgment, which is the basis ofthe present petition for writ ofsupervisory control. In that Order, theDistrict Court agreed with the StatethatthePlaintiffs' challenge to the SEP should be dismissed without prejudice because the recent repeal ofthat statute raised redressability and prudential standing issues. However, the court denied the State's motion for summary judgment on the remaining MEPA issues because it determined that material factsremainedin disputethatwouldprecludesummaryjudgment inthis case. The court was further unpersuaded by the State's legal arguments, including that it should declineto entertain thePlaintiffs' claims on thebasis ofprudential standing, stating, "There
are no prudential concerns that prevent this Court from adjudging whether the MEPA limitation is constitutional." Supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors make the normal appeal process inadequate, the case involvespurely legal questions,and one ormoreofthethree followingcircumstances exist; the other court is proceeding under a mistake of law and is causing a gross injustice, constitutional issues ofstate-wide importance are involved, or the other court has granted
or denied a motion for substitution of ajudge in a criminal case. M. R. App. P. 14(3).' Consistent with Rule 14(3), it is the Court's practice to refrain from exercising supervisory control when the petitioner has an adequate remedy of appeal. E.g., Buckles v. Seventh JudicialDist. Court,No. OP 16-0517, 386 Mont.393, 386 P.3d 545 (table)(Oct. 18,2016); Lichte v. Mont. Eighteenth JudicialDist. Court,No. OP 16-0482, 385 Mont. 540, 382 P.3d 868 (table) (Aug. 24, 2016). The State assertsthat this matter is set for atwo-week trialbeginningJune 12, 2023. It argues that this Court should stay the proceedings below to entertain this petition. The

Inits petition, the State does not accurately address the criteria ofRule 14(3). Instead, it quotes Plumbv. FourthJudicialDist. Court,279Mont.363,369,927P.2d 1011, 1015 (1996),theholding ofwhich was superseded by Rule 14 over a decade ago. 2State maintains that the District Court should have granted summary judgment in the

State's favor. First, it allegesthat there areno material factsto be found at trial thatwould change the legal outcome ofthe case. Next, it reiterates the arguments it made below. In part, the State argues that the amendments made to MEPA during the 2023 legislative session removed the language that the Plaintiffs challenged in this litigation, and thus supervisory control would prevent a trial the State unsuccessfully tried to convince the District Court is unnecessary. "[A]writ ofsupervisory control isnottobeused as ameansto circumventtheappeal process. Only in the most extenuating circumstances will such a writ be granted." State
exrel. Wardv. Schmall, 190 Mont. 1, 617P.2d 140 (1980). M.R.App. P. 6(5)(b) specifies that orders denying motions for summary judgment, denying motions to dismiss, or granting motions for partial summaryjudgment are not immediately appealable, but those rulings may ultimately be reviewed on an appeal from a final judgment under M. R. App. P. 6(1). Although the State asserts that this Court should take supervisory control to avoid a trial, we have repeatedly held that conserving resources, without more, is insufficient grounds tojustify supervisory control where a party can seek review ofthe lower court's ruling on appeal and there is no evidence that relief on appeal would be inadequate. Yellowstone Elec. Co. v. Mont. Seventh JudicialDist. Court,No. OP 19-0348, 397 Mont. 552, 449 P.3d 787 (table) (Aug. 6, 2019); Holloron v. Mineral Cty. Justice Court, No. OP 21-0245, 404 Mont. 555, 489 P.3d 884 (table) (June 1, 2021); Simpkins-Hallin, Inc. v. Mont. Eighteenth Judicial Dist. Court, OP 21-0399, 405 Mont. 538, 495 P.3d 422 (table) (Aug. 17, 2021). Moreover, though the State argues that the MEPA amendments effected by HB 971
mean the case now will be going to trial on a non-existent statute, it has not demonstrated that HB 971's amendments alter the allegations the Plaintiffs make in the Complaint. The Complaint alleges that since legislative amendments in 2011, the "Climate Change Exception" prohibits climate change from being considered in MEPA review. Since the Complaint was filed,the theory ofthis claim has been that prohibiting consideration ofthe

3impactsofclimatechange in environmental reviewviolatestheMontana Constitution. The

State does not explain how HB 971 changes that issue for trial. In this case, the State has provided no reason why the District Court's ruling cannot be reviewed on appeal, if necessary, pursuant to Rule 6(1). Moreover, trial, with preparation literally years in the making, is set to commence less than a week from now;
we are not inclined to disturb the District Court's schedule at thisjuncture. IT IS THEREFORE ORDERED that the Petition for a Writ ofSupervisory Control is DENIED and DISMISSED. The Clerk is directed to provide immediate notice of this Order to counsel for Petitioner, all counsel ofrecord in the Fist Judicial District Court, Lewis and Clark County, Cause No. CDV-25-2020-0307, and the Honorable Kathy Seeley, presiding. '• DATED this l

c .` day ofJune, 2023.

Justices ChiefJustice

fi r

Justice Jim Rice would order a response and postpone the trial.

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