                                         No. 05-194

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2005 MT 321N


JOSEPH W. THOMPSON and DELIA K. KELLY,

              Petitioners,

         v.

MACK LONG, REGIONAL DIRECTOR, DEPARTMENT OF
FISH, WILDLIFE AND PARKS OF MISSOULA, MONTANA

              Respondent.




APPEAL FROM:         The District Court of the Twenty-First Judicial District,
                     In and For the County of Ravalli, Cause No. DV 05-162,
                     Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Joseph W. Thompson, pro se, Stevensville, Montana

              For Respondent:

                     John F. Lynch and Robert N. Lane, Department of Fish,
                     Wildlife and Parks, Helena, Montana



                                                         Submitted on Briefs: October 5, 2005

                                                                  Decided: December 19, 2005


Filed:

                     __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and

its case title, Supreme Court cause number and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Joseph Thompson and Delia Kelly, appearing pro se, appeal the Order of the Montana

Twenty-First Judicial District Court, Ravalli County, denying their Application for Writ of

Mandate. We affirm.

¶3     The dispositive issue on appeal is whether the District Court erred in denying

Plaintiffs’ Application for Writ of Mandate.

¶4     In late January 2005, Thompson and Kelly asked a Montana Fish, Wildlife and Parks’

(FWP) biologist to determine whether property adjacent to their property was critical elk

winter range. Thompson and Kelly sought this determination because they were concerned

about a subdivision that was proposed for the adjacent property, claiming they had observed

approximately seventy head of elk winter on the adjacent property and their property for the

previous three winters. After a site visit, FWP sent a letter to the Ravalli County Planning

Department with reference to the proposed housing development, indicating that the

proposed site was “away from important elk winter range.” Thompson and Kelly strongly

disagreed and filed an Application for Writ of Mandate in the District Court, demanding that

FWP retract its letter to the Planning Department and declare the proposed building site to be

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critical winter range for elk. The District Court denied the application, relying on § 27-26-

102, MCA.

¶5     As noted above, we have determined to decide this case pursuant to Section I,

Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides

for memorandum opinions. It is clear from the Application, the briefs and the record that this

issue is clearly controlled by settled Montana law which the District Court correctly

interpreted. Section 27-26-102, MCA, in relevant part, provides:

       (1) A writ of mandamus may be issued . . . to compel the performance of an
       act that the law specially enjoins as a duty resulting from an office, trust, or
       station . . . .

¶6     The FWP’s determination that the property in question was not critical elk winter

range was a discretionary determination and not the breach of an obligation “specially

enjoined” under the law. As correctly noted by the District Court, Thompson and Kelly

presented no statutory or other clear legal duty imposed on, or violated by, FWP. The court

observed that “[a]t most, a factual dispute exists over whether this small area of Ravalli

County is critical winter elk habitat. It is improper to issue a writ of mandate to resolve a

factual dispute . . . .” See Jeppeson v. State, Dept. of State Lands (1983), 205 Mont. 282,

288, 667 P.2d 428, 431, citing State ex. rel. Butte Youth Serv. Center v. Murray (1976), 170

Mont. 171, 551 P.2d 1017 (“Mandamus will not lie to compel performance of a discretionary

function.”).

¶7     We agree. Mandamus was not available to Thompson and Kelly as a remedy.

Therefore, we affirm the District Court.

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                        /S/ PATRICIA O. COTTER


We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS




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