DocketNumber: DA 17-0723
Citation Numbers: 421 P.3d 789, 2018 MT 165, 392 Mont. 72
Judges: Rice
Filed Date: 7/10/2018
Status: Precedential
Modified Date: 7/19/2022
***72¶1 Carter Boehm appeals from the denial of his petition for writ of mandate by the Sixth Judicial District Court, Park County. We affirm and address the following issue:
Did the District Court err by quashing Boehm's petition for writ of mandate?
***73FACTUAL AND PROCEDURAL BACKGROUND
¶2 Boehm owns property located in the 9th Street island floodplain on the Yellowstone River near Livingston. Boehm operated an unpermitted "cesspool" septic system on the property, and wanted to install a permitted septic system. On March 24, 2016, Boehm submitted a septic permit application to the Park County Environmental Health Department. On March 29, Park County Sanitarian and Floodplain Administrator, Barbara Woodbury, approved the application and issued a permit for Boehm to construct the system.
¶3 Soon thereafter, Woodbury retired and Park County appointed Craig Caes as the new Sanitarian. Caes reviewed Boehm's application and identified several deficiencies that would, in his determination, allow the proposed septic system to be operated in violation of the Park County Water Onsite Treatment Regulations (Regulations), and potentially create a threat to public health. Consequently, on May 27, Caes mailed Boehm a certified letter informing him the permit issued to him "has been voided" and instructing him to cease construction of the septic system, citing the following grounds, in summary:
(1) Boehm had failed to complete the required section on the permit application indicating that the property was in a floodplain, the omission of which constituted a material misrepresentation under Regulation 9.2, entitling Caes to void the permit;
(2) Because Boehm had failed to disclose that his property was in a floodplain, the required floodplain 100-foot setback boundary had not been addressed *791in the application, in violation of Admin. R. Mont. 17.36.918(1); and
(3) Boehm had incorrectly classified his proposed septic system as being a "replacement" system rather than a "new" system, as there had never been a permitted system in place on Boehm's property.1
In the letter, Caes addressed re-applying for a permit to construct a "new" septic system and complying with the floodplain requirements, including the need for a variance from the Park County Board of Health, but also advised that "variances are not guaranteed."
¶4 Boehm filed a Petition for Writ of Mandate and Complaint for ***74Libel in the District Court, seeking an order "directing that Park County rescind its cease and desist order of May 27, 2016." Park County moved for summary judgment, which the District Court granted, quashing Boehm's petition. The court reasoned that Boehm was not seeking to enforce a legal duty not yet performed, but rather "to undo the action already taken by Park County, that of voiding his Septic Permit," which was, "as a matter of law, not a simple, ministerial task," but instead a discretionary action. Thus, the court determined that a writ of mandate was inapplicable.
¶5 Boehm appeals the denial of his petition for writ of mandate.
STANDARD OF REVIEW
¶6 We review de novo a district court's grant or denial of summary judgment, applying the same criteria of M. R. Civ. P. 56 as a district court. Pilgeram v. GreenPoint Mortg. Funding, Inc. ,
¶7 A district court's decision to issue or deny a writ of mandate is a conclusion of law that we review for correctness. W. Mont. Water Users Ass'n v. Mission Irrigation Dist. ,
DISCUSSION
¶8 Did the District Court err by quashing Boehm's petition for a writ of mandate?
¶9 A writ of mandate is "an extraordinary remedy" available in only "rare" cases. State ex rel. Thomas v. District Court of Seventeenth Judicial Dist. In and For Valley County ,
***75¶10 A "clear legal duty" cannot "be a mere discretionary act." Belgrade Educ. Ass'n v. Belgrade Sch. Dist. No. 44 ,
[W]here the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial, but where the act to be done involves the exercise of discretion or judgment, *792it is not to be deemed merely ministerial.
State ex rel. Sch. Dist. No. 29 v. Cooney ,
¶11 Further, "[i]t is axiomatic that an action already done may not be undone by mandamus." State ex rel. Popham v. Hamilton City Council ,
¶12 Boehm challenges the District Court's determination that he is seeking to "undo" an act already done, arguing that he is requesting Park County to fulfill its duties under Montana law. He contends that Caes' action of voiding the permit was "an unsupported ministerial function" of revoking a valid permit, and that he was not acting with discretion because "the discretionary act of issuing the permit was done by his predecessor, Ms. Woodbury."
¶13 However, the uncontested facts are that the County had already ***76acted by revoking or voiding Boehm's permit. Boehm's petition clearly sought an order countering that action, to direct Park County to "rescind its cease and desist order"-not to compel the county to perform an act it had not done. As noted above, mandamus is not available "to cause the respondent to undo action already taken, or to correct or revise such action, however erroneous it may have been." Popham ,
¶14 Even if Boehm's petition could be read as seeking the affirmative action of issuance or re-issuance of a septic permit by the County, he would not be entitled to mandamus relief because such action is discretionary here. Caes' authority as Sanitarian for the Park County Board of Health originates with § 50-2-116, MCA, which allows the Board to "identify, assess, prevent and ameliorate conditions of public health" and "bring and pursue actions and issue orders necessary to abate, restrain, or prosecute the violation of public health laws, rules, and local regulations." Pursuant thereto, the Park County Regulations were adopted to ensure the "[s]afe disposal of all human and domestic wastes ... to protect the health of the individual family and community and to prevent the occurrence of nuisances." Regulations, Purpose. Generally, the Regulations explain that when the regulatory "criteria are met, and where soil and site conditions are favorable," individual sewage disposal *793systems can provide "safe and satisfactory service." Regulations, Purpose. Septic permits may be issued only "upon compliance by the Applicant with provisions of these regulations." Regulations, 4.5. The Sanitarian may deny a permit if the proposed treatment system will not comply with the regulations, or the applicant has failed to supply all necessary data for the Sanitarian to decide whether the system is or is not compliant. Regulations, 6.1. A person violates the regulations by constructing a sewage system that may ***77contaminate drinking water supply or cause a public health hazard. Regulations, 4.2.
¶15 Caes attested that he voided the permit because Boehm's application failed to disclose material information that would aid in the County's review and decision on the permit, and because Caes wished "to protect public health and a Montana waterway that could be negatively affected by [Boehm's] non-complaint Septic System and Drainfield." Therefore, Caes's voiding of the permit was a discretionary action in response to a public health concern, not a matter of him failing to act in violation of a duty to act. See State ex rel. Diehl Co. v. City of Helena ,
¶16 Boehm next argues that he was faced with "no avenue to pursue short of the writ of mandate," and thus he had no adequate remedy at law. Boehm contends that the voidance of his permit was an unconstitutional deprivation of due process, which he argues is governed by § 75-5-611, MCA, and § 75-5-404, MCA. While the lack of a clear legal duty itself bars issuance of a writ of mandate, Best , ¶ 14, we consider Boehm's argument that he was deprived of due process.
¶17 The fundamental requirements of procedural due process are ***78notice and an opportunity for a hearing appropriate to the nature of the case. Montanans v. State ex rel. McGrath ,
¶18 Caes' letter to Boehm gave notice of his decision and referenced potential remedies for him to pursue, including re-applying and seeking a variance, in accordance with Park County Regulations. Boehm could have corrected his application, addressed the floodplain issues, and/or applied for a variance. If denied a permit, Boehm could have appealed to the Department and, if necessary, to the district court. See Admin. R. Mont. 17.36.924; § 75-5-305, MCA. We have previously noted that the failure to exhaust administrative remedies precludes the issuance of a writ of mandate because there is otherwise a plain, speedy, and adequate remedy of law. See , e.g. , ***79Christopherson v. State ,
¶19 Affirmed.
We concur:
DIRK M. SANDEFUR, J.
JAMES JEREMIAH SHEA, J.
LAURIE McKINNON, J.
INGRID GUSTAFSON, J.
Under the Park County Regulations, a "new" septic system required a non-degradation analysis, including testing of the soils, ground water levels, and completion of other requirements by a professional qualified to conduct such testing.
Boehm does not challenge the dismissal of his libel claim on appeal.
Boehm argues Kadillak v. Anaconda Co. ,
In his reply brief, Boehm makes the alternative argument that Caes exercised discretion in revoking the permit, but that doing so "was an abuse of Caes' discretion" because Caes "attempted to override the prior issuance by Woodbury." Boehm cites State ex rel. Barnes v. Town of Belgrade ,