Administrative Procedure Act – Montana

The Montana Administrative Procedure Act is found in Title 2, chapter 4 of Montana Code.  The purposes of the Act are to:

  • give notice to the public of governmental action and to provide for public participation in that action,
  • establish general uniformity and due process safeguards in agency rulemaking, legislative review of rules, and contested case proceedings,
  • establish standards for judicial review of agency rules and final agency decisions, and
  • provide the executive and judicial branches of government with statutory directives.

According to Mont. Code Anno., § 2-4-103, every agency should make available rules, written statements of policy and interpretations formulated or adopted, for public inspection and copying.  Rule, order or decision is not valid against any party until it has been made available for public inspection.

Mont. Code Anno., § 2-4-201 states that each agency should adopt the general course and method of operation, so that the public may obtain information.  Mont. Code Anno., § 2-4-202 directs the secretary of state to prepare model form for a rule and model rules of practice for agencies to use as a guide for the rulemaking process.  The section also directs the attorney general to prepare model rules of practice for agencies to use as a guide for contested case hearings and declaratory rulings.

According to Mont. Code Anno., § 2-4-302, prior to adoption, amendment, or repeal of any rule, an agency should give written notice of its proposed action and the notice should be filed with the secretary of state for publication in the register.  Within three days of publication, a copy of the published proposal notice should be sent to interested persons.  Similarly, prior to adoption, amendment, or repeal of any rule, the agency should also afford interested persons at least twenty days’ notice of a hearing and at least twenty eight days from the day of the original notice to submit data, views, or arguments, orally or in writing.

As per Mont. Code Anno., § 2-4-303, if an agency finds that there is an immediate danger to the public health, safety, or welfare, the agency can adopt an emergency rule.  The agency may proceed without prior notice or hearing or upon any abbreviated notice and hearing that it finds practicable, to adopt an emergency rule.  Such rule is effective for a period of not longer than 120 days.

Mont. Code Anno., § 2-4-304 provides that an agency may use informal conferences and consultations to obtain viewpoints and advice of interested persons with respect to contemplated rulemaking.  An agency may also appoint committees of experts or interested persons or representatives of the general public to advise it with respect to any contemplated rulemaking.

Mont. Code Anno., § 2-4-306 requires each agency to file with the secretary of state a copy of each rule adopted by it.  The secretary of state should keep and maintain a permanent register of all notices and rules filed.  The register should be open to public inspection and the secretary of state should provide copies of any notice or rule upon request of any person.  Each rule will be effective after publication in the register.  Mont. Code Anno., § 2-4-314 states that each agency should at least biennially review its rules to determine if any new rule should be adopted or any existing rule should be modified or repealed.  As per Mont. Code Anno., § 2-4-315, an interested person or a member of the legislature on behalf of an interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule.

Mont. Code Anno., § 2-4-307 states that an agency may adopt by reference any model code, federal agency rule, rule of any agency in the state of Montana, or other similar publication, if the publication of the model code, rule, or other publication is unduly cumbersome, expensive, or otherwise inexpedient.  Mont. Code Anno., § 2-4-311 directs the secretary of state to publish in the Administrative Rules of Montana (“ARM”), a compilation of the rules for all state agencies.  Mont. Code Anno., § 2-4-312 directs the secretary of state to publish in the Montana Administrative Register all notices, rules, and interpretations filed with the secretary of state.

As per Mont. Code Anno., § 2-4-402, the administrative rule review committees should review all proposed rules filed with the secretary of state.  Mont. Code Anno., § 2-4-403 states that the committee should poll all members of the legislature to determine whether a proposed rule is consistent with the intent of the legislature.  According to Mont. Code Anno., § 2-4-406, if the administrative rule review committee objects to all or some portion of a proposed or adopted rule, the committee should send a written objection with reasons to the agency that promulgated the rule.  Within fourteen days after the mailing of a committee objection to a rule, the agency promulgating the rule should respond in writing to the committee.  After receipt of the response, the committee may withdraw or modify its objection.  If the committee fails to withdraw or substantially modify its objection to a rule, it may send the objection to the secretary of state.  Upon receipt of the objection, the secretary of state should publish the objection in the Montana Administrative Register adjacent to any notice of adoption of the rule and in the ARM adjacent to the rule.

According to Mont. Code Anno., § 2-4-412, the legislature may, by bill, repeal any rule in the ARM.  If a rule is repealed, the legislature should state its objections to the repealed rule.  If an agency adopts a new rule to replace the repealed rule, the agency should adopt the new rule in accordance with the objections stated by the legislature in the bill.

Mont. Code Anno., § 2-4-501 requires an agency to issue declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency.  A copy of a declaratory ruling must be filed with the secretary of state for publication in the Montana Administrative Register.

According to Mont. Code Anno., § 2-4-601, in a contested case, the agency shall afford to all parties, opportunity for hearing after reasonable notice in writing.  Mont. Code Anno., § 2-4-603 provides that informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default in writing.  As per Mont. Code Anno., § 2-4-611, an agency may appoint hearing examiners for the conduct of hearings in contested cases.  Mont. Code Anno., § 2-4-621 states that in a contested case, if a majority of officials of an agency who are to render the final decision have not heard the case, the decision may not be made until a proposal for decision is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument.

Mont. Code Anno., § 2-4-104 states that an agency conducting any proceeding may issue subpoenas for witnesses or subpoenas duces tecum.  The method for service of subpoenas should be the same as required in civil actions in the district courts of the state of Montana.  Mont. Code Anno., § 2-4-105 provides that any person appearing before any agency has the right to be accompanied, represented, and advised by counsel.

According to Mont. Code Anno., § 2-4-623, a final decision in a proceeding should be in writing and should include findings of fact and conclusions of law separately stated.  A final decision must be issued within ninety days after a contested case is considered to be submitted for a final decision.

Mont. Code Anno., § 2-4-701 provides that a preliminary, procedural, or intermediate agency action or ruling is immediately reviewable, if review of the final agency decision does not provide an adequate remedy.  According to Mont. Code Anno., § 2-4-702, proceedings for review should be instituted by filing a petition in district court within thirty days after service of the final written decision of the agency.  The petition should be filed in the district court for the county where the petitioner resides or has the petitioner’s principal place of business or where the agency maintains its principal office.  Mont. Code Anno., § 2-4-704 states that the review must be conducted by the court without a jury and must be confined to the record.

According to Mont. Code Anno., § 2-4-711, an aggrieved party may obtain review of a final judgment of a district court by appeal to the supreme court within sixty days after entry of judgment.


Inside Administrative Procedure Act – Montana