Richards v. Mont. Dep't of Nat. Res. & Conservation

JOHN RICHARDS, LINDA MILLER, and LARRY RICHARDS, Petitioners and Appellants, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Respondent and Appellee.

No. DA 21-0056

Supreme Court of Montana

August 17, 2021

ORDER

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 Mat. Ins. Co. v Bodel, 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. of Personnel 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 brief is 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. Sheriff's 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 of the final written decision of the agency or, if a rehearing is requested, within 30 days after the written decision is rendered." Richards...