                                 ORIGINAL                                                 07/14/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA                              Case Number: OP 20-0292



                                       OP 20-0292

                                                                         FILED
 MONTANA BOARD OF ENVIRONMENTAL
 REVIEW,                                                                 JUL 1 it 2020
                                                                      Bowen Greenwooci
                                                                    Clerk of Supreme Court
             Petitioner,                                               State of Montana


       v.
                                                                   ORDER
 MONTANA SIXTEENTH JUDICIAL DISTRICT
 COURT,ROSEBUD COUNTY,HON.
 KATHERINE M.BIDEGARAY,

              Respondent.


      Petitioner Montana Board of Environmental Review (BER) seeks a writ of
supervisory control directing the Sixteenth Judicial District Court, Rosebud County, to
reverse its March 12, 2020 Order Denying Respondent Montana Board of Environmental
Review's Motion to Dismiss its Cause No. DV 19-34. BER had sought dismissal from the
underlying proceeding because it contends it is not a necessary named party in that action.
      After receiving BER's petition for writ ofsupervisory control, we stayed the matter
in the District Court pending this Court's decision. We granted the District Court and
Montana Environmental Information Center(MEIC)and Sierra Club,the petitioners in the
underlying matter, the opportunity to respond in accordance with M. R. App. P. 14(7).
MEIC has responded.
      In December 2015, the Montana Department of Environmental Quality (DEQ)
issued a permit which MEIC and the Sierra Club then appealed to BER pursuant to the
Montana Stripe and Underground Mine Reclamation Act and the Montana Administrative
Procedure Act (MAPA). BER upheld the permit and MEIC and the Sierra Club then
petitioned for judicial review. In their Petition for Review of Final Agency Action, filed
in the Sixteenth Judicial District Court, they named DEQ,BER and Western Energy Co.
as defendants. Among the relief they sought was a declaration that, "DEQ and BER
violated MAPA,the Montana Strip-mining Law, and the Montana Constitution," and the
reversal ofBER's dismissal oftheir case.
      BER then moved for dismissal, arguing that the District Court should dismiss BER
from the case because it was not a necessary party under M. R. Civ. P. 19. The District
Court denied BER's motion, ruling that while BER was not a necessary party under
Rule 19, this Court has previously held that an agency that issues a final decision in a
contested case may be a party to a case seeking judicial review ofthat decision and as such,
dismissal ofBER was not required.
      BER then filed this petition for writ ofsupervisory control. It argues that the District
Court's denial of its motion to dismiss was a mistake oflaw and that failing to correct this
mistake of law would result in a significant injustice to BER for which appeal is an
inadequate remedy. MEIC has responded that the District Court correctly denied BER's
motion to dismiss and that even ifit erred, supervisory control is unnecessary as BER could
raise the issue on appeal.
       Supervisory control is an extraordinary remedy that may be invoked when the case
involves purely legal questions and urgent or emergency factors make the normal appeal
process inadequate. M. R. App. P: 14(3). The case must meet one of three additional
criteria: (a) the other court is proceeding under a mistake of law and is causing a gross
injustice;(b) constitutional issues of state-wide irnportance are involved; or (c)the other
court has granted or denied a motion for substitution of a judge in a criminal case.
M.R. App. P. 14(3)(a)-(c). Whether supervisory control is appropriate is a case-by-case
decision. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont.
279,259 P.3d 754(citations omitted). Consistent with Rule 14(3), it is the Court's practice
to refrain from exercising supervisory control when the petitioner has an adequate remedy
of appeal. E.g., Buckles v. Seventh Judicial Dist. Court, No. OP 16-0517, 386 Mont. 393,
386 P.3d 545 (table)(Oct. 18, 2016); Lichte v. Mont. Eighteenth Judicial Dist. Court, No.
OP 16-0482, 385 Mont. 540,382 P.3d 868 (table)(Aug. 24, 2016).


                                             2,
       Here, BER asserts that forcing it to remain a party forces it to bear the costs of
participating in the matter, and that appeal is an inadequate remedy because it will have
been forced to bear those costs even if it ultimately prevails on appeal. While BER
acknowledges that it could, as suggested by the District Court, file a notice of
nonparticipation, it claims that doing so would foreclose its right to appeal. BER alleges
that ifthis Court fails to grant the writ,judicial economy will suffer because BER will have
to file motions to dismiss in other cases whenever it is named as a party.
       MEIC responds that this matter is not appropriate for supervisory control because
there is no urgency or threat of gross injustice. MEIC explains:
       While [BER] may disagree with the District Court's interlocutory denial of
       its motion to dismiss, the normal appeal process affords an adequate remedy.
       In the underlying judicial review case, there are no procedural
       entanglements—no discovery, no witnesses, no trial—merely briefs filed on
       an existing administrative record. If the Board wishes not to file a merits
       brief, it may—as it has done in other recent cases—simply file a notice of
       non-participation, reserving the right to appeal the denial of its motion to
       dismiss.

       MEIC acknowledges that BER claims that filing a notice ofnon-participation would
foreclose its right of appeal but notes that BER has offered no legal authority to support
this claim. Thus, MEIC maintains that BER could expressly reserve its right to appeal, or
alternately file a brief that asserts no position on the merits and thereby preserves BER's
right to appeal the earlier adverse ruling. Under either scenario, MEIC maintains, BER
would not suffer any gross injustice. Rather, MEIC characterizes this matter as "an
academically interesting issue regarding permissible parties to judicial review under
[MAPA]" without the urgency necessitated for supervisory control.
       We agree that BER has not demonstrated that the normal appeal process is an
inadequate remedy in this matter. BER has not convinced us that appeal is unavailable to
it, nor that a gross injustice would occur ifBER remains a party until the matter is resolved
in the District Court. While the issue presented may be a question oflaw,BER has not set
forth any urgent or emergency factors that would make the normal appeal process
inadequate, as M.R. App.P. 14(3)requires.

                                             3
      IT IS THEREFORE ORDERED that BER's Petition for a Writ of Supervisory
Control is DENIED.
      The Clerk is directed to provide immediate notice of this Order to counsel for
Petitioner, all counsel of record in the Sixteenth Judicial District Court, Rosebud County,
Cause No. DV-19-34, and the Honorable Katherine M. Bidegaray, presiding Judge.
      DATED this /      'day of July, 2020.



                                                              Chief Justice

                                                    LA0.
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