No. 85-624 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

MALTA IRRIGATIONDISTRICT,GLASGOW IRRIGATIONDISTRICT, DODSON IRRIGATION DISTRICT, ZURICH IRRIGATION DISTRICT, HARLEM IRRIGATIONDISTRICT,FORT BELKNAP IRRIGATIONDISTRICT,PARADISE VALLEY IRRICATIONDISTRICT,ALFALFAVALLEY IRRIGATIONDISTRICT, Petitionersand Appellants,

MONTANA BOARD OF HEALTH AND ENVIRONMENTAL SCIENCES,an agency of the STATEOF MONTANA, and its individual members, Respondent, and MONTANA RENEWABLE RESOURCES, INC., Real Party in Interest.

APPEAL FROM: District Court of the First JudicialDistrict, In and for the County of Lewis & Clark, The Honorable Gordon Bennett, Judgepresiding. COUNSEL OF RECORD: ForAppellant: F. WoodsideWright,Helena, Montana MatthewW. 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 ForAmicus Curiae: Roger Tippy,City of Gillette,WY, Helena,Montana

Filed: Submitted: October 21, 1986 Decided: December 18, 1986 

# DEC18

## 1986

ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal froma denial of an application for a writ of prohibition entered by the FirstJudicialDistrict 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 thewrit. We affirm. This dispute involves three entities competing for the mutually exclusive right to construct a hydroelectric generation fa.cilityat the federallyowned 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 ControlAct amendmentsof 1972, 33U.S.C. S 1341(a), requires thatbefore

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 projectwill complywith 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 thisprocess of state "401certification" that is at issue. While other aspects of regulation of such hydroelectric facilities have been preempted by Congress, certification of water quality compliance largely restswith 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 tobe 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 accordinglyeach applied to the Department for 401 certification, and on May 14, 1984, the Department issued certificationto all three. MRR, however, soon began to question whether its competitors

### ' projects actually complied with the statewater quality standards. MRR designed itsproject 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 dischargewaterwith significantly higher temperatures.

1 Ifno 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 fisherywhich requires relatively coolerwater. The state, in an effort to protect this fishery,enacted temperature restrictionson 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 improperlygranted. Consequently, on October 2, 1984, NRR requested that the Department reconsider its 401 certification of the projects submitted by the Districts and Gillette. The DepartmentreviewedMRR'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 DistrictCourt initially granted a temporary writ toboth 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 ofprohibitionwas 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 hasproceeded 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. Itmust act as a shield against degradation of water standards, 55 75-5-302, -303, MCA. It must set stamdards forwastewater treatment, for effluents and fornew 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 itmay, or perhapsmust,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 ofwater quality standards,themattermay be heard and determined by the Board, $j75-5-611 and S 75-5-621,MCA. Finally, it is the Board which is granted the generic authorization to hold hearings necessary for the proper administrationof this chapter,5 75-5-202,MCA. Additionally, 5 50-1-301(2)

## ,MCA, authorizes the Board to "hold hearings, administer oaths, subpoenawitnesses, 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 ownhearings 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 thispetition, for the Districtsenjoy an effective remedy at law. This Court has previously expressed its strong disinclinationto favor writs ofprohibition. Thewrit ofprohibition is not favoredby 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 rightof judicial appeal canbe a plain, speedy and adequate remedywhich precludes prohibition. Joslyn v. City Court (1982)

## , 198 Mont. 223, 645 P.2d 428. Notwithstanding the availability of this right, however, a writ of prohibitionmay nevertheless issuewhen the appeal is neither speedy nor adequate. Allen v. Madison County Commission

(Mont. 1984), 684 P.2d 1095, 41 St.Pep. 1226. We have longheld that a remedy is speedywhen,having inmind 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),174Mont. 27, 30, 568 P.2d 527, 529; State ex rel. Taylor v. District Court (1957),131Mont. 397, 402, 310P.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 thenbeen 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 challengingMRR'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 notpresented any reasons why judicial appeal would cause essential detriment. Forinstance, we find no evidence--and the Districts have presented none--which suggests that the Districts would suffer substantiveharm 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 caseproceeding 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. TheDistrictsaxe asking thisCourt 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 notprepared to decide this issueon such an abbreviated record; rather, we require that this questionbe filtered through the appellateprocess. 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 adversedecision 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 forwrit ofprohibition.