Montana Code 82-4-252. Mandamus
82-4-252. Mandamus. (1) A resident of this state or any person having an interest that is or may be adversely affected, with knowledge that a requirement of this part or a rule adopted under this part is not being enforced or implemented by a public officer or employee whose duty it is to enforce or implement the requirement or rule, may bring the failure to enforce to the attention of the public officer or employee by a written statement under oath that must state the specific facts of the failure to enforce the requirement or rule. Knowingly making false statements or charges in the affidavit subjects the affiant to penalties prescribed in 45-7-202.
Terms Used In Montana Code 82-4-252
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- Knowingly: means only a knowledge that the facts exist which bring the act or omission within the provisions of this code. See Montana Code 1-1-204
- Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Plaintiff: The person who files the complaint in a civil lawsuit.
- Property: means real and personal property. See Montana Code 1-1-205
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- Statute: A law passed by a legislature.
- Temporary restraining order: Prohibits a person from an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held.
- Writing: includes printing. See Montana Code 1-1-203
(2)If the public officer or employee neglects or refuses for an unreasonable time after receipt of the statement to enforce or implement the requirement or rule, the resident or person having an interest that is or may be adversely affected may bring an action of mandamus in the district court of the county in which the land is located. The court, if it finds that a requirement of this part or a rule adopted under this part is not being enforced, shall order the public officer or employee whose duty it is to enforce the requirement or rule to perform the officer’s or employee’s duties. If the officer or employee fails to obey the order, the public officer or employee must be held in contempt of court and is subject to the penalties provided by law.
(3)Any person having an interest that is or may be adversely affected may commence a civil action on the person’s own behalf to compel compliance with this part against any person for the violation of this part or any rule, order, or permit issued under this part. However, the action may not commence:
(a)prior to 60 days after the plaintiff has given notice in writing to the department and to the alleged violator; or
(b)if the department has commenced and is diligently prosecuting a civil action to require compliance with the provisions of this part or any rule, order, or permit issued under this part. Any person may intervene as a matter of right in the civil action. This section does not restrict any right that any person may have under any statute or common law to seek enforcement of this part or the rules adopted under this part or to seek any other relief.
(4)Any person who is injured in person or property through the violation by any operator of any rule, order, or permit issued pursuant to this part may bring an action for damages, including reasonable attorney and expert witness fees, only in the county in which the strip- or underground-coal-mining operation complained of is located. This subsection does not affect the rights established by or limits imposed under Title 39, chapter 71.
(5)The court, in issuing any final order in any action brought pursuant to subsection (3), may award costs of litigation, including attorney and expert witness fees, pursuant to 82-4-255. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Montana Rules of Civil Procedure.