Gruba v. Public Service Commi , 2016 MT 131N ( 2016 )


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  •                                                                                          May 31 2016
    DA 15-0736
    Case Number: DA 15-0736
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    
    2016 MT 131N
    JAMES T. & ELIZABETH GRUBA and
    LEO G. & JEANNE R. BARSANTI,
    Petitioners and Appellants,
    v.
    MONTANA PUBLIC SERVICE COMMISSION,
    Respondent and Appellee,
    and
    NORTHWESTERN ENERGY,
    Intervenor.
    APPEAL FROM:       District Court of the First Judicial District,
    In and For the County of Lewis and Clark, Cause No. BDV 2015-648
    Honorable Jeffrey M. Sherlock, Presiding Judge
    COUNSEL OF RECORD:
    For Appellants:
    Russell L. Doty, Attorney at Law; Greeley, Colorado
    For Appellees:
    Laura J. Farkas, Montana Public Service Commission; Helena, Montana
    For Intervenor:
    Sarah Norcott, Northwestern Energy; Helena, Montana
    Submitted on Briefs: April 27, 2016
    Decided: May 31, 2016
    Filed:
    __________________________________________
    Clerk
    2
    Justice Jim Rice delivered the Opinion of the Court.
    ¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
    Rules, this case is decided by memorandum opinion and shall not be cited and does not
    serve as precedent. Its case title, 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     James and Elizabeth Gruba and Leo and Jeanne Barsanti (Appellants) are the
    currently-named plaintiffs in this case.    The original complaint, including additional
    plaintiffs, was filed in 2010 before the Montana Public Service Commission (PSC),
    alleging that Northwestern Energy is overcharging Billings and Montana consumers of
    street lighting services by charging unreasonable and unjustly discriminatory tariff rates.
    See Williamson v. Mont. PSC, 
    2012 MT 32
    , 
    364 Mont. 128
    , 
    272 P.3d 71
    . After the PSC
    denied several of Appellants’ motions, Appellants filed a Petition for Review of
    Administrative Agency Decisions, Complaint in Request for Declaratory Judgment,
    Action to Compel Performance, and Request for a Temporary Rate Reduction (the
    Petition) in the First Judicial District Court, Lewis and Clark County. The PSC moved to
    dismiss the Petition pursuant to M. R. Civ. P. 12(b)(1) and (6), and on November 2, 2015,
    the District Court granted the motion. Appellants appeal, raising and primarily arguing
    the same issues they sought to raise in the District Court, essentially asking this Court to
    consider the merits of those issues. We address the single issue of whether the District
    3
    Court erred when it dismissed the Petition, and denied interlocutory review of the
    agency’s actions under § 2-4-701, MCA.
    ¶3     As a rule, “judicial review will generally only be available to a person aggrieved
    by a final agency decision.” Wilson v. Dep’t of Pub. Serv. Regulation, 
    260 Mont. 167
    ,
    172, 
    858 P.2d 368
    , 371 (1993) (emphasis in original).            However, “[a] preliminary,
    procedural, or intermediate agency action or ruling is immediately reviewable if review
    of the final agency decision would not provide an adequate remedy.” Section 2-4-701,
    MCA.      We have previously stated that “[p]ersons seeking immediate review of
    interlocutory administrative agency action or rulings under § 2-4-701, MCA, continue to
    bear a heavy burden to demonstrate that judicial review of the final agency decision
    would not provide an adequate remedy.” 
    Wilson, 260 Mont. at 172
    , 858 P.2d at 371
    (emphasis added). In dismissing the Petition, the District Court noted that “Petitioners
    are actively involved in extensive proceedings in front of the PSC on various procedural
    issues[,]” and “it is clear that the PSC has not issued a final ruling.”
    ¶4     Appellants argue “that the District Court is required by law” to grant judicial
    review of the PSC’s denial of class certification, citing M. R. Civ. P. 23(f), and of the
    PSC’s denial of the motion to amend testimony. They assert that “[a]ny PSC final
    agency decision, which is devoid of consideration of [Appellants’] complete testimony,
    cannot and will not provide an adequate remedy because there will be no record of
    massive statewide overcharges, only of small overcharges in three or four street
    improvement and lighting districts . . . .”
    4
    ¶5      However, while a preliminary, procedural, or intermediate agency ruling may be
    reviewed if review of a final agency decision would not provide an adequate remedy,
    there has been no such showing in this case, other than Appellants’ strongly-worded
    assertion. See Kingsbury Ditch Co. v. Dep’t of Natural Res. & Conservation, 
    223 Mont. 379
    , 382, 
    725 P.2d 1209
    , 1210 (1986) (“There has been no showing in this case that a
    review of the final agency action would provide an inadequate remedy.”). The District
    Court aptly stated, “This Court finds no reason to inject itself into an on-going
    administrative proceeding.” Upon our de novo review, we find that the Appellants did
    not meet their burden to establish that such an interlocutory appeal is appropriate. See
    Doty v. Mont. Comm’r of Political Practices, 
    2007 MT 341
    , ¶ 9, 
    340 Mont. 276
    , 
    173 P.3d 700
    (“We review a district court’s ruling on a M. R. Civ. P. 12(b)(6) motion to
    dismiss de novo.”) (citing State v. Hall, 
    2006 MT 37
    , ¶ 10, 
    331 Mont. 171
    , 
    130 P.3d 601
    ).
    ¶6      We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
    our Internal Operating Rules, which provides for memorandum opinions. In the opinion
    of the Court, the case presents a question controlled by settled law, which the District
    Court correctly applied.
    ¶7      Affirmed.
    /S/ JIM RICE
    5
    We concur:
    /S/ MIKE McGRATH
    /S/ LAURIE McKINNON
    /S/ BETH BAKER
    /S/ PATRICIA COTTER
    6
    

Document Info

Docket Number: 15-0736

Citation Numbers: 2016 MT 131N

Filed Date: 5/31/2016

Precedential Status: Precedential

Modified Date: 6/1/2016