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Montana Wilderness Ass'n v. Montana Bd. of Health & Envtl. Sciences

Citation: 6 ELR 20695
No. No. 13179, (Mont., 07/22/1976) Aff'd

The Montana Supreme Court, in its first interpretation of the Montana Environmental Policy Act, holds that the environmental organization plaintiffs have standing, that the environmental impact statement prepared by the Montana Department of Health and Environmental Sciences for a proposed residential and commercial subdivision is procedurally inadequate, and that plaintiffs are therefore entitled to injunctive relief. In ruling on the standing question, the court reviews federal cases under NEPA and the Administrative Procedure Act, Washington cases under its Environmental Policy Act, as well as Montana taxpayer and elector suits, but bases its holding primarily on Montana law and precedent. The plaintiffs alleged a threat to their continued use and enjoyment of the area in which the proposed subdivision is to be located and violation of their civil right to a clean and healthful environment, which is an "inalienable right" under the Montana Constitution. Plaintiffs, whose members extensively use public lands adjacent to the proposed subdivision, adequately alleged an injury which is distinguishable from that of the general public. The Montana Constitution and Environmental Policy Act clearly make unlawful environmental degradation a judicially cognizable injury, and to deny plaintiffs' standing would render these important provisions meaningless. The court rejets defendants' argument that the impact statement need deal in detail only with water supply, sewage. and solid waste disposal considerations because the the state has specific authority to review only these matters under the state Sanitation in Subdivision Act. The court also rejects defendants' argument that the state's Subdivision and Platting Act, by requiring an environmental assessment at the local level, demonstrates a legislative intent to place final subdivision approval solely with local governing bodies. There is no irreconcilable conflict between Montana's Environmental Protection Act and the Subdivision and Platting Act: the two acts form a complementary statutory scheme for environmental protection, requiring environmental analysis of local impacts by the local government, and analysis of regional and statewide impacts by state government. The court specifically limits its review of the adequacy of the EIS to the procedural questions of whether it provided a sufficiently detailed consideration and balancing of environmental factors to insure implementation of the Environmental Protection Act's policies, aid the department in decisionmaking, and publicize the impact of the proposed action. The discussion in the impact statement of the development's potential effects on wildlife and visual aesthetics is legally inadequate, and the defendants clearly ignored their statutory duties to provide an economic cost/benefit analysis of the project in the impact statement. Montana law allows illegal acts by state agencies to be enjoined when plaintiffs show irreparable injury. The inadequacy of the EIS made it illegal and the plaintiffs have sufficiently alleged irreparable injury to warrant injunctive relief.

A partial concurrence and dissent argues that the EIS was not so clearly illegal to justify injunctive relief. The majority would more carefully consider the legal and economic injury suffered by the private developer, who had no control over the preparation of the impact statement. The injunction, which is not authorized either by Montana's Environmental Protection Act or the Sanitation in Subdivision Act, prevents a private citizen from a use of its land which is fully authorized by state and local authorities, thereby rendering property rights useless.

For the district court opinion, see 6 ELR 20043.

Counsel for Plaintiff-Appellees
James H. Goetz
Goetz & Madden
P.O. Box 1322
Bozeman MT 59715
(406) 587-0618

Counsel for Defendants-Appellants
A. Michael Salvagni
G. Steven Brown
Montana Department of Health and Environmental Sciences
1424 Ninth Ave.
Helena MT 59601
(406) 449-2630

Counsel for Intervenor-Appellant Beaver Creek South, Inc.
William P. Conklin
Dzivi, Conklin, Johnson & Nybo
529 Northwestern Bank Bldg.
Great Falls MT 59401
(406) 453-5441

Counsel for Amicus Curiae Montana Department of Community Affairs
Richard M. Weddle
Capitol Station
Helena MT 50601
(406) 449-3757

Counsel for Amicus Curiae League of Women Voters of Montana
Donald R. Marble
P.O. Box 649
Chester MT 59522
(406) 759-5105

Counsel for Amicus Curiae Montana Home Builders Association
Joe Gerbese
Anderson, Symmes, Forbes, Peete & Brown
100 Transwestern Bldg.
Billings MT 59101
(406) 248-2611

Counsel for Amicus Curiae Montana Environmental Quality Council
Steven J. Perlmutter
Capitol Station
Helena MT 59601
(406) 449-3747

Haswell, J. joined by Daly & Martin, JJ.; Harrison, J., concurs in part and dissents in part with opinion; Castles, J., dissents.