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Allied Waste Services of North America, LLC v. Montana Department of Public Service Regulation

Supreme Court of Montana

August 20, 2019


          Submitted on Briefs: June 26, 2019

          Appeal From: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDV-2018-318 Honorable James P. Reynolds, Presiding Judge.

          For Appellants: Justin Kraske, Zachary Rogala, Jeremiah Langston, Montana Public Service Commission, Helena, Montana Francesca diStefano, Bryan, diStefano & Mattingley, PLLP, Kalispell, Montana (for Big Foot Dumpsters & Containers, LLC)

          For Appellees: Gary M. Zadick, James Robert Zadick, Ugrin Alexander Zadick, P.C., Great Falls, Montana (for Montana Waste Systems, Inc., d/b/a North Valley Refuse and Evergreen Disposal, Inc.) Jacqueline Papez, Doney Crowley P.C., Helena, Montana (for Allied Waste Services of North America LLC)

          For Amici NorthWestern Energy: Ann B. Hill, Attorney at Law, Helena, Montana


          JIM RICE JUDGE.

         ¶1 The Montana Department of Public Service Regulation ("PSC" or "Commission") and Bigfoot Dumpsters & Containers, LLC ("Big Foot"; collectively, "Appellants") appeal a writ of prohibition and a writ of mandate issued by the First Judicial District Court, Lewis and Clark County. The District Court's order enjoined PSC from propounding discovery in the dispute between Big Foot and Petitioners Allied Waste Services of North America, LLC, d/b/a Republic Services of Montana, and Montana Waste Systems, Inc., d/b/a North Valley Refuse (collectively, "Petitioners"). The District Court's writ of mandate removed the PSC from the matter and ordered appointment of an independent hearing examiner to preside over the case. We affirm in part and reverse in part, restating the issues as follows:

         1. Did the District Court err by issuing a writ of prohibition barring the PSC from propounding discovery?

         2. Did the District Court err by issuing a writ of mandate requiring the PSC to appoint an independent hearing examiner?


         ¶2 The PSC regulates garbage haulers in Montana by requiring haulers to obtain a Class D motor carrier certificate of public convenience or necessity before engaging in the hauling business. Section 69-12-314, MCA. The process of obtaining a Class D carrier certificate begins by filing an application with the PSC and, subject to certain requirements, any authorized Class D carrier may protest the application of a garbage hauler seeking license to operate. Section 69-12-321, MCA; Admin. R. M. 38.3.405.

         ¶3 On January 8, 2018, Big Foot applied for a Class D certificate of public convenience and necessity, seeking to operate a garbage hauling business in Flathead County, Montana. On February 12, 2018, Petitioners, who are Class D carriers authorized to provide garbage hauling services within Flathead County, filed protests to Big Foot's application. The PSC issued a Procedural Order on March 6, 2018, providing a schedule for the proceeding, including dates and procedures for discovery requests, which the PSC refers to as "data requests."[1] The PSC's order also appointed staff attorneys Jennifer Hill-Hart and Jeremiah Langston to "act as examiners for the limited purpose of disposing of discovery disputes (including objections to data requests and motions to compel) and motions for protective order in this proceeding." The order provided instructions for how the parties should serve and respond to discovery requests, but did not describe the PSC as one of the parties or indicate the PSC would submit discovery requests.

         ¶4 On March 19, 2018, Hill-Hart served discovery requests upon Petitioners on behalf of the PSC, with instructions to "provide responses on or before April 9, 2018."[2] Later that day, Big Foot served discovery requests upon Petitioners, who allege that the requests, "in part, mirrored" those served by the PSC. Concerned by an appearance of improper coordination or ex parte contact between Big Foot and the PSC, Petitioners filed a petition with the District Court seeking, among other things, immediate review of PSC's conduct, a temporary restraining order (TRO) and preliminary injunction, a writ of prohibition, and a writ of mandate. Petitioners argued that by "propounding discovery, and inserting itself in an advocacy role," the PSC has improperly undertaken "a dual advocate-judge role," and was thus violating Petitioners' due process rights. Petitioners asked for prompt relief from the District Court, on the ground that answering the PSC's discovery requests would irreparably harm Petitioners and unfairly strengthen Big Foot's case, and requested "relief barring the PSC from imposing deadlines or procedures" pursuant to the Procedural Order.

         ¶5 PSC and Big Foot opposed the petition, arguing a TRO and preliminary injunction were unwarranted because "adequate relief would be provided by judicial review of final agency action," and that the PSC is not "bound to a purely adjudicative role" and was simply carrying out its investigative duties by issuing discovery. The PSC "reject[ed] the false dichotomy presented by Petitioners that the Commission must occupy either a purely adjudicatory or advocacy role," arguing instead that "the Commission occupies a role in between in which it regulates in the public interest." After responding to the request for a TRO, the PSC "reserve[d] the opportunity to respond more fully to any other claims in this Petition at the appropriate time and as set by this Court." On May 4, 2018, the District Court granted a TRO staying all proceedings before the PSC and, having found that Petitioners established ...

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