Richards v. DNRC ( 2021 )

08/17/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0056
DA 21-0056
JOHN RICHARDS,LINDA MILLER, and FILED
LARRY RICHARDS,
AUG 1 7 2021
Bowen Greenwood
Petitioners and Appellants, Clerk of Supreme Court
State of Montana
v. ORDER
MONTANA DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION,
Respondent and Appellee.
Through counsel, the Montana Department of Natural Resources and Conservation
(DNRC)moves to dismiss this appeal because it is not from a final judgment. Representing
himself, John Richards responds in opposition.
The DNRC asserts that this Court lacks jurisdiction to consider this appeal of the
underlying decision on the Appellants' petition for judicial review concerning a cancelled
lease. The DNRC points out that the Missoula County District Court's Order of Dismissal
was without prejudice and argues that it therefore is not a final, appealable order.
M. R. App. P. 4(1)(a); Farmers Union Mut. Ins. Co. v. Bodell, 2008 MT 363, ¶ 18,
346 Mont. 414, 197 P.3d 913. The DNRC explains that the District Court dismissed the
petition without prejudice because it did not meet the requirements of
§ 2-4-702(2)(b), MCA, which gave Richards another opportunity to satisfy the statutory
requirements necessary for judicial review. The DNRC maintains that Richards has not
exhausted his administrative remedies under § 2-4-702, MCA, and his appeal thus is not
properly before this Court. See Flowers v. Bd. ofPersonnel Appeals, 2020 MT 150, ¶ 16,
400 Mont. 238,465 P.3d 210.
Richards responds that the DNRC's motion reflects its continued showing of bad
faith. He notes that his opening briefis due on August 29,2021, as directed in this Court's
recent Order. He also alleges that "[t]he District Court erred by not recognizing the proper
parties and unilaterally changing petitioners " Richards provides no argument on the
law.
We conclude that the DNRC's argument does not counsel dismissal in this case.
Though dismissal without prejudice generally is not appealable as a final order,
Farmers Union Mut. Ins. Co., ¶ 18, "an order dismissing a complaint without prejudice
may be appealable under special circumstances." Seamster v. Musselshell Cty. Sheriffs
Office, 2014 MT 84, ¶ 9, 374 Mont. 358, 321 P.3d 829. "Special circumstances include
both the 'running of a statute of limitations' and when 'the practical effect of the order of
dismissal terminates the litigation.'" Seamster, ¶ 9 (citing Farmers Union, ¶ 18.) Under
§ 2-4-702(2)(a), MCA,"proceedings for review must be instituted by filing a petition in
district court within 30 days after service ofthe final written decision ofthe agency or, if a
rehearing is requested, within 30 days after the written decision is rendered." Richards
timely sought judicial review in the District Court. We have recognized that "a court's
authority to review administrative rulings is constrained by statute . . .[, including] the
applicable statutes of limitation governing the time for review." Molnar v. Mont. PSC,
2008 MT 49, II 7, 341 Mont. 420, 177 P.3d 1048 (citing In re McGurran, 1999 MT 192,
12, 295 Mont. 357, 983 P.2d 968). To dismiss the appeal at this point would limit any
further remedy for Richards because more than thirty days have elapsed since the
October 14, 2020 final agency order. Section 2-4-702(2)(a), MCA. Richards may file his
opening brief.
We caution Richards, however,that as a self-represented litigant who is not licensed
to practice law, he may appear in this appeal on his own behalf only and not on behalf of
any other Appellant.
IT IS THEREFORE ORDERED that the DNRC's Opposed Motion to Dismiss is
DENIED
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The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to counsel
of record and to John Richards, Larry Richards, and Linda Miller personally.
DATED this day of August, 2021.
Chief Justice
Justices
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