Bostwick Properties, Inc. v. Montana Department of Natural Resources & Conservation, 2009 MT 181, 351 Mont. 26

Summary

The Supreme Court of Montana reversed a district court's writ of mandamus directing the Montana Department of Natural Resources and Conservation to issue Bostwick Properties a water-use permit. The Court held that mandamus could compel the agency to act on the application but could not compel issuance of the permit because determining whether the statutory permit criteria were satisfied involved agency discretion. The matter was remanded, with Bostwick given an opportunity to request a hearing on the agency's statement of opinion denying the application.

Holdings

1. A writ of mandate cannot be used to correct or undo an action that has already been taken; therefore, once DNRC issued its statement of opinion, mandamus was not an appropriate remedy to compel issuance of the permit.
2. DNRC did not have a clear legal or ministerial duty to issue the permit merely because the application was deemed correct and complete, objections were resolved, and the statutory deadline had expired.
3. DNRC had a clear legal duty to process the application under the statutory procedures and, after issuing its statement of opinion, to provide Bostwick an opportunity to be heard and timely process the application; mandamus could compel agency action but not dictate issuance of the permit.

Questions Presented

1. Whether the District Court erred by granting a writ of mandate directing DNRC to issue Bostwick's water-use permit.
2. Whether DNRC had a clear, ministerial legal duty to issue the permit after the statutory processing deadline elapsed and the application had been deemed correct and complete.
3. Whether mandamus could be used to compel issuance of the permit after DNRC had issued a statement of opinion concluding that Bostwick failed to satisfy required statutory criteria.

Disposition

reversed_and_remanded