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Montana v. Johnson

Citation: 14 ELR 20672
No. No. CA 82-3584, 738 F.2d 1074/(9th Cir., 07/30/1984)

The court rules that Federal Land Policy and Management Act (FLPMA) § 505 does not require the Bonneville Power Administration (BPA) to receive state certification before building a power transmission line across federal lands, but FLPMA does require BPA to comply with state environmental standards where the line crosses federal lands. The court first rules that the issues before it are ripe because BPA has refused to seek certification and BPA might not comply with state laws. Although the power line may already be in use, the issues are not moot since the court can order the line removed.

Regarding the FLPMA issues, the court rules that FLPMA § 505(a)(iv) requires BPA to comply with state substantive standards but not state procedures. Thus, BPA need not seek state certification. Examining state substantive law, the court holds that Montana's general requirement of "minimum adverse environmental impact" is too subjective and vague to qualify as a standard for the purposes of FLPMA § 505(a)(iv). However, the rules that the Montana Department of Natural Resources and Conservation promulgated specifically to apply to the line do qualify as standards under the Act, despite their lack of previous promulgation or widespread applicability. This reading of the Act does not effectively subject BPA to the certification process, since the state standards must concern health, safety, or environmental protection, and may not involve such matters as need, regional planning, and reliability, which would be at issue in a certification proceeding. However, the court reads the section to bind BPA to state standards only where the line crosses federal lands. Although the statute and legislative history could be read to impose state standards on the entire line, such a reading would also require federal grants of right-of-way to private parties to be conditioned on compliance with state standards off federal lands. The court holds that Congress could not have intended to require federal agencies to police state standards on state or private lands.

A dissent would hold that ad hoc, route-specific requirements do not constitute state standards under FLPMA § 505(a)(iv).

Counsel for Appellants
Mike Greely, Attorney General
Department of Justice, 215 N. Sanders St., Helena MT 59620
(406) 449-2026

Counsel for Appellees
Allen McKenzie, Ass't U.S. Attorney
167 Fed. Bldg., Butte MT 59701
(406) 723-6561

Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Before WRIGHT, CANBY and BOOCHEVER, Circuit Judges.