                               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 ENVIRON-
MENTAL 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


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

Filed:    DEC 18 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,           $ 75-5-611
                                        j             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 Executive Reorganization Act, S 2-15-2104 (3), MCA.
         s
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 - - other
                                        is no
             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 a x e 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.
