No. 85-624 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

MALTA IRRIGATION DISTRICT, GLASGOW 

IRRIGATION DISTRICT, DODSON IRRIGATION 

DISTRICT, ZURICH IRRIGATION DISTRICT, 

HARLEM IRRIGATION DISTRICT, FORT BELKNAP 

IRRIGATION DISTRICT, PARADISE VALLEY 

IRRICATION DISTRICT, ALFALFA VALLEY 

IRRIGATION DISTRICT, 

Petitioners and Appellants, 

MONTANA BOARD OF HEALTH AND ENVIRONMENTAL SCIENCES, an agency of the 

STATE OF MONTANA, and its individual 

members, 

Respondent, 

and 

MONTANA RENEWABLE RESOURCES, INC., 

Real Party in Interest. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

F. Woodside Wright, Helena, Montana 

Matthew W. Knierim, Glasgow,Montana 

Douglas E. Davidson arqued; Bishop, Liberman & Cook, 

New York, New York 

For Respondent : 

Allen P. Chronister argued, Agency Legal Services, 

Helena, Montana 

G. Steven Brown a.rgued, Helena, Montana 

For Amicus Curiae: 

Roger Tippy, City of Gillette, WY, Helena, Montana 

Filed: 

Submitted: October 21, 1986 

Decided: December 18, 1986 

DEC 1 8 1986 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a denial of an application for a 

writ of prohibition entered by the First Judicial District in 

and for Lewis and Clark County. Petitioners sought to 

restrain the Board of Health and Environmental Sciences from 

reviewing an action talcen by the Department of Health and 

Environmental Sciences. The District Court found that the 

Board was acting within its jurisdiction and so refused to 

issue the writ. We affirm. 

This dispute involves three entities competing for the 

mutually exclusive right to construct a hydroelectric 

generation fa.cility at the federally owned and operated Tiber 

Dam in Liberty County, Montana. The three competitors are 

the Milk River Irrigation Districts (Districts), a consortium 

of eight irrigation districts; Montana Renewable Resources 

(MRR), a Montana limited partnership; and the City of 

Gillette, Wyoming (Gillette) . The Districts, MRR and 

Gillette have all applied and are in competition for a 

license from the Federal Energy Regulatory Commission (FERC) 

to construct and operate the proposed facility. A FERC 

license will be issued to only one of the three applicants. 

Section 401 of the Federal Water Pollution Control Act 

amendments of 1972, 33 U.S.C. S 1341(a), requires that before 

a federal agency may grant a permit or license authorizing 

development of a facility, an applicant must provide 

certification from the appropriate state agency that 

discharges from the applicant's proposed project will comply 
with the state's applicable water quality standards. The 

federal licensing or permitting agency may not consider an 

application unless a 401 certification has been obtain.ed. 

It is this process of state "401 certification" that is 

at issue. While other aspects of regulation of such 

hydroelectric facilities have been preempted by Congress, 

certification of water quality compliance largely rests with 

the states. Montana, however, has failed to adopt any formal 

rules to cover this certification process. 401 

certifications are not mentioned anywhere in our statutes or 

regulations and considerable disagreement exists over the 

appropriate procedures to be used. 

In the past, the state agency which has handled these 

certification applications has been the Department of Health 

and Environmental Sciences (Department) . The three 

applicants accordingly each applied to the Department for 401 

certification, and on May 14, 1984, the Department issued 

certification to all three. 

MRR, however, soon began to question whether its 

competitors ' projects actually complied with the state water 

quality standards. MRR designed its project to utilize Tiber 

Dam's existing low level or river outlet, through which is 

released downstream the deeper, cooler water of the 

reservoir. The Districts and Gillette, on the other hand, 

proposed to use the dam's auxiliary or upper outlet. MRR 

contended that its rivals, by using this auxiliary outlet, 

would discharge water with significantly higher temperatures. 

1 If no state agency issues such certifications, then the 

Administrator of the Environmental Protection Agency 

may issue it. 
Water temperature is significant because of the existence, 

immediately below the dam, of a thriving trout fishery which 

requires relatively cooler water. The state, in an effort to 

protect this fishery, enacted temperature restrictions on any 

water to be released into the fishery. MRR argued that the 

projects of its competitors would violate applicable state 

water quality standards by releasing downstream water in 

excess of these temperature limits and that their 401 

certifications were therefore improperly granted. 

Consequently, on October 2, 1984, NRR requested that 

the Department reconsider its 401 certification of the 

projects submitted by the Districts and Gillette. The 

Department reviewed MRR's request for reconsideration, but on 

November 27 refused to modify its decision. So in early 

1985, MRR turned to the Board of Health and Environmental 

Sciences (Board). On February 6, 1985, MRR formally 

petitioned the Board for an appeal of the Department's 

certification of the Districts and Gillette, or 

alternatively, a declaratory ruling. In July, 1985, the 

Board voted to schedule the matter for an evidentiary 

hearing. 

The Districts and Gillette responded on August 15, 

1985, by filing applications in District Court for writs of 

prohibition directing the Board to refrain from any further 

proceedings with respect to their 401 certifications. The 

District Court initially granted a temporary writ to both the 

Districts and Gillette, but on September 19, 1985, quashed 

the writs and dismissed the applications. It found that the 

Board was acting within its jurisdiction and therefore 

concluded that a writ of prohibition was unavailable. 
The Districts now appeal, seeking review of the 

District Court's denial of its petition for writ of 

3 prohibition. " Meanwhile, the Board's consideration on the 

merits has proceeded concurrently. 

A writ of prohibition shall be granted only to halt 

proceedings undertaken in the absence of jurisdiction, 

§ 27-27-101, MCA, where there is no "plain, speedy, and 

adequate remedy in the ordinary course of law. " Section 

27-27-102, MCA. These principles frame the issues involved 

herein. 

As to water quality matters, the duties and 

responsibilities of these two administrative entities a.re 

recited under the Montana Water Quality chapter, S 75-5-101 

et seq., MCA. A complete reading of this statutory chapter 

illustrates that the legislature intended the Board to have 

ultimate jurisdiction over general water quality compliance. 

It is the Board which is charged with adopting rules for the 

administration of the water quality statutes, S 75-5-201, 

MCA. It is further charged with classifying all the waters 

for the state and formulating water purity standards, 

5 75-5-301, MCA, and is required to hold hearings therewith, 

5 75-5-307, BICA. It must act as a shield against degradation 

of water standards, 55 75-5-302, -303, MCA. It must set 

stamdards for wastewater treatment, for effluents and for new 

point discharges, S 75-5-304, MCA. It is required to set 

rules governing the a.pplication for, and issuance, 

continuance, modification, denial or revocation of permits, 

S 75-5-401, MCA, though it may, or perhaps must, delegate the 

2 The City of Gillette does not appeal, but joins this 

appeal as an amicus. 
hearing function on permits to the Department, 5 75-5-202, 

MCA . If, acting under the Board's rules, the Department 

denies, modifies, suspends or revokes a permit, there is an 

appeal to the Board, upon which a hearing may be held, 

5s 75-4-403, -404, MCA. When the Department charges 

violation of water quality standards, the matter may be heard 

and determined by the Board, $j 75-5-611 and S 75-5-621, MCA. 

Finally, it is the Board which is granted the generic 

authorization to hold hearings necessary for the proper 

administration of this chapter, 5 75-5-202, MCA. 

Additionally, 5 50-1-301 (2) , MCA, authorizes the Board 

to "hold hearings, administer oaths, subpoena witnesses, and 

take testimony in matters relating to the duties of the 

board. " 

Finally, it is the Board and not the Department which 

the legislature designated as "quasi-judicial" under 

140ntana1 s Executive Reorganization Act, S 2-15-2104 (3) , MCA. 

As such it is empowered to undertake any "quasi.-judicial 

function," defined in 5 2-15-102(9), MCA, as: 

[Aln adjudicatory function exercised by 

an agency, involving the exercise of 

judgment and discretion in making 

determinations in controversies. The 

term includes but is not limited to the 

functions of interpreting, applying, and 

enforcing existing rules and laws; 

granting or denying privileges, rights, 

or benefits; issuing, suspending, or 

revoking licenses, permits, and 

certificates; determining rights and 

interests of adverse parties; evaluating 

and passing on facts; awarding 

compensa.tion; fixing prices; ordering 

action or abatement of action; adopting 

procedural rules; holding hearings; and 

any other act necessary to the 

performance of a quasi-judicial function. 

In short, we find that the Board is authorized by law 

to exercise jurisdiction in this matter by holding its own 
hearings on 401 certifications. This holding is entirely 

consistent with the legislature's stated public policy of 

advancing effective and responsive agency action. Section 

2-15-101, MCA. 

Even were we to decide this jurisdictional question 

otherwise, we would nevertheless affirm the District Court's 

denial of this petition, for the Districts enjoy an effective 

remedy at law. This Court has previously expressed its 

strong disinclination to favor writs of prohibition. 

The writ of prohibition is not favored by 

the courts. Necessity alone justifies 

it. Although authorized by statute, it 

is not issued as a matter of right, but 

only in the exercise of sound judicial 

discretion when there is - - no other 

remedy . . . 

It is justified only by extreme 

necessity, when the grievance cannot be 

redressed by ordinary proceedings at law 

or by appeal . . . (Emphasis in 

original. ) 

Morse v. Justice Court (Mont. 1981), 626 P.2d 836, 837, 38 

The Districts argue that despite this disinclination, a. 

writ of prohibition is proper under these circumstances 

because they lack a speedy and adequate remedy at law. MRR 

argues that the Districts will have the remedy of judicial 

appeal from any adverse decision rendered by the Board. 

The right of judicial appeal can be a plain, speedy and 

adequate remedy which precludes prohibition. Joslyn v. City 

Court (1982) , 198 Mont. 223, 645 P. 2d 428. Notwithstanding 

the availability of this right, however, a writ of 

prohibition may nevertheless issue when the appeal is neither 

speedy nor adequate. Allen v. Madison County Commission 

(Mont. 1984), 684 P.2d 1095, 41 St.Pep. 1226. We have long 
held that a remedy is speedy when, having in mind the subject 

matter involved, it can be pursued with expedition and 

without essential detriment to the party aggrieved. A remedy 

is neither speedy nor adequate if its slowness is likely to 

produce immediate injury or mischief. Allen, 684 P.2d at 

1100; Bradbrook v. City of Billings (1977), 174 Mont. 27, 30, 

568 P.2d 527, 529; State ex rel. Taylor v. District Court 

(1957), 131 Mont. 397, 402, 310 P.2d 779, 781. 

For instance, in Allen, supra, we upheld the issuance 

of a writ of prohibition which barred a county commission 

from placing an unauthorized issue on an election ballot. 

Petitioners in that case enjoyed a right of appeal, but were 

required to await the outcome of the election and would have 

then been required to challenge the election in the face of a 

presumption of procedural validity. We found this remedy 

inadequate because it could not have been pursued without 

essential detriment to the petitioners. Allen, 684 P.2d at 

1100. 

Analogous situations are lacking in the instant case. 

The Districts, following denial of their application for the 

writ by the District Court, filed a cross-appeal with the 

Board challenging MRR's 401 certification. The Board held a 

contested case hearing in which the Districts, Gillette, and 

MRR all participated. The Board reached a decision largely 

adverse to the Districts and Gillette on June 4, 1986 and 

scheduled the issuance of a final order for July 11, 1986. 

Upon issuance of the final order, the judicial review 

provisions of S 2-4-701 et seq., MCA, become applicable. 

Moreover, we do not find that this right of appeal is 

inadequate. The Districts have not presented any reasons why 

judicial appeal would cause essential detriment. For 
instance, we find no evidence--and the Districts have 

presented none--which suggests that the Districts would 

suffer substantive harm in the underlying federal proceeding 

to determine who is awarded the FERC license. Inconvenience 

alone does not suffice to invoke the extraordinary remedy of 

prohibition. 

The writ of prohibition will not be 

issued as of course, nor because it may 

he the most convenient remedy. Nor will 

it be allowed to take the place of an 

appeal . . . 

Lee v. Montana Livestock Sanitary Board (1959), 135 Mont. 

The Districts have suggested, however, that the Board 

erred in conducting a contested case hearing in this matter. 

They find no statutory authorization necessarily entitling 

MRR or any other party to a contested case proceeding before 

the Board. 

Whether the Board has authority to conduct a contested 

case hearing must, of course, in the first instance be 

decided by the Board. If, in this controversy, the Districts 

disagree with the Board's determination, they should dispute 

this issue through the standard judicial appellate process. 

The Districts axe asking this Court to address an issue about 

which precious little has been spoken. We see little in the 

record indicating that this question has been discussed and 

addressed below. We are not prepared to decide this issue on 

such an abbreviated record; rather, we require that this 

question be filtered through the appellate process. 

In short, the Districts are unpersuasive in their 

contention that they lack an adequate and speedy remedy at 

law. They enjoy the right of appeal from any adverse 
decision reached subsequent to the contested case hearing and 

have not shown that this right is not adequate or speedy. 

We affirm the District Court's denial of this 

application for writ of prohibition.