                                          NO. 97-107

               IN TEE SUPREME COURT OF THE STATE OF MONTANA

                                              1997


JOE R. LEE,

                     Petitioner and Appellant,

         V.


STATE OF MONTANA. DEPARTMENT OF 1
RESOURCES AND CONSERVATION, MILLER
COLONY. WILLIAM LEYS, STOTT RANCH, INC..
FARMERS CO-OP CANAL CO., LEONARD BLIXRUD,
CLOYD STOTT and LLOYD STOTT,

                     Respondents and Respondents.


APPEAL FROM:         District Court of the Ninth Judicial District, In and for the County of Teton,
                     the Honorable Marc G. Buyskc, Judge Presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Joe Lee (pro se), Choteau, Montana

              For Respondent:

                     Donald D. Macintyre, Specmi Assistant Atorney General and Chief
                     Legal Counsel, Department of Natural Resources and Conservation,
                     Helena. Montana



                                                              Submitted on Briefs: July 3 1, 1997

                                                                          Decided: September 8 r      1937
Filed:
Chief Justice J. '4. Tumage delivered the Opinion of the Court.

       Pursuant to Section I, Paragraph 3(e), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by tts filing as a public document with the Clerk of the Supreme Court and by a report of its

result to State Reporter and West Publishing Companies.

       Joe Lee, pro se, appeals from the order of the Ninth Judicial District Court, Teton

County, dismissing his petition for judicial review. We affirm.

       Lee presents one issue on appeal:

       Did the District Court err when it dismissed Lee's petition for judicial review?

                                     BACKGROUND

       Lee applied for beneficial water use with the Montana Department of Natural

Resources and Conservation (DNRC). A hearing examiner issued a Proposal for Decision,

granting and conditioning the provisional permits on the installation of measuring devices.

Lee objected, and the examiner issued a final order. Lee petitioned for judicial review in the

District Court of Teton County, Cause No. 83-DV-036.

       In June 1986, the DNRC filed a motion to stay Cause No. 83-DV-036, seeking an

order to direct Lee only to develop and appropriate water under the terms and conditions of

the permits until the court entered its order on the merits of the case, or alternatively, to

restram Lee from exeretstng any water nghts under the permlts unttl ordered by the court.
On July 18, 1986, Lee entered a stipulation with the DNRC, agreeing to comply with the

conditions of the permits until such time as the court entered judgment on his petition.

       Ownership of the land subject to the provisional permits was the issue in Teton

County Cause Nos. 86-DP-020,86-DV-028, and 87-DV-010. On July 22, 1986, the District

Court granted leave for the Estate of Pelman, Teton County Cause No. 86-DP-020, to

intervene as a respondent in Lee's petition.

       On January 25, 1990, the court ordered Lee's petition would he dismissed for failure

to prosecute unless, within ten days, good cause was shown why it should continue. Lee

responded on January 3 1, 1990, with a document entitled "Reason for not withdrawing or

dismissing the above case." Hc explained his petition should not be dismissed because:

       1. Petitioner is in the middle of an estate settlement dispute over the land and
       water that is involved in this Cause. If it is shown that Petitioner does not own
       the land or has any claim to the land, then this cause shall be dismissed
       anyway since Petitioner has no claim to the land or water.

       This Court takes judicial notice that in Matter of the Estate of Petzman (1993), 261

Mont. 461, 863 P.2d 1019, we ruled that Lee, petitioner and appellant herein, did not have

any claim to purchase the property menticned in petitionerlappellant's response of January

3 1, 1990, set forth above.

       Lee and the personal representahve for the Pclzman Estate settled Cause Nos. 86-DP-

020, 86-DV-028, and 87-DV-010, on November 12, 1996. On November 19, 1996, the

District Court, finding that Lee's petition had been stayed pending the resolution of Cause
Nos. 86-DP-020, 86-DV-028, and 87-DV-010, and finding that those causes had been

resolved by stipulation, dismissed Lee's petition in the District Court of Teton County, Cause

No. 83-DV-036, with prejudice. Lee appeals.

                                        DISCUSSION

       Did the District Court err when it dismissed Lee's petition for judicial review?

       The District Court dismissed Lee's petition, although not specifically referring to Rule

41(b), M.R.Civ.P. The dismissal was correct under this rule. A district court has broad

discretion in ruling on a Rule 41(b) motion, and its ruling will be overturned only if it has

abused that discretion. Pool v. Butte Pre-Release Center, inc. (Mont. 1997), 939 P.2d 1011,

1012,54 St.Rep. 603. This Court considers four factors to determine whether a court abused

its discretion in dismissing an action under Rule 41(b), M.R.Civ.P.: (1) the plaintiffs

diligence in prosecuting the claim; (2) prejudice to the defense caused by the plaintiffs

delay; (3) availability of alternate sanctions; and (4) existence of a warning that the case is

in danger of dismissal.   m,939 P.2d at 1012-13.
       Lee argues the District Court erred in dismissing his petition because the Estate of

Pelzman was not a party to the case at bar. Kespondents argue that the District Court was

aware of Lee's January 31, 1990, stipulation which referred to Cause No. 86-DP-020 and

relied on that stipulation to dismiss Lee's petition.

       011   January 25, 1990, the District Court ordered Lee's petition would be dismissed if

good cause was not shown why it should continue. Lee responded, "If it is shown that

                                               4
Petitioner does not own the land or has any claim to the land, then this cause shall be

dismissed anyway since Petitioner has no claim to the land or water." The dispute to which

Lee referred was the subject of Cause No. 86-DP-020. The District Court knew about the

Pelzman Estate's interest in Lee's petition from the 1986 motion to intervene and Lee's

January 31, 1990, document. Lee's document tied the settlement of Cause No. 86-DP-020

to the resolution of his petition.

       When Lee settled Cause Nos. 86-DP-020, 86-DV-028, and 87-DV-010 in the

November 12, 1996, stipulation, the District Court, being aware of the relationship between

Cause Nos. 86-DP-020, 86-DV-028, and 87-DV-010, and the case at bar, dismissed Lee's

petition. The court accepted Lee's January 3 1, 1990, document and properly dismissed a

case that had not been diligently prosecuted since 1983.

        Lee was provided a forum to resolve his disputes. He received adequate warning that

his petition could be dismissed because his document stipulated that his petition should be

dismissed if it was shown that he did not have any claim to the land. The District Court was

not required to consider alternate sanctions to dismissal because Lee informed the court the

remedy resulting &om Cause Nos. 86-DP-020, 86-DV-028, and 87-DV-010 would be

adequate relief for his petition. Lee is bound by his pleadings.

       After considering the four factors to be examined in an appeal of a Rule 41fb)

dismissal, we conclude the District Court did not abuse its discretion when it dismissed Lee's

petition for judicial review.
     We affirm the District Court's order of dismissal




We concur:




             Justices
                                        September 8, 1997


                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

JOE LEE
BOX 154
CHOTEAU MT 59422-0154


MILLER COLONY
BOX 210 RR2
CHOTEAU MT 59422

WILLIAM LEYS
RR2
CHOTEAU MT 59422

KENNETH OLSON
ATTORNEY AT LAW
600 CENTRAL PLAZA SUITE 316
GREAT FALLS M'I

DONALD MacINTYRE
DEPARMENT OF NATURAL RESOURCES
BOX 201601
HELENA MT 59620-1601

SCOTT RANCH, INC.
GENERAL DELIVERY
CHOTEAU MT 59422

FARMERS CO-OP CANAL COMPANY
ALVIN GUSE
CHOTEAU MT 59422

LEONARD BLIXRUD
BOX 44
CHOTEAU MT 59422-0044
CLOYD STOTT
STAR ROUTE
CHOTEAU MT 59422

LLOYD STOTT
STAR ROUTE
CHOTEAU MT 53422



                   ED SMITH
                   CLERK OF THE SUPREME COURT
                   STATE OF MONTANA
