Opinion
DA 21-0056
08-17-2021
JOHN RICHARDS, LINDA MILLER, and LARRY RICHARDS, Petitioners and Appellants, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Respondent and Appellee.
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 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, ¶ 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.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to John Richards. Larry Richards, and Linda Miller personally.