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Kadillak v. Anaconda Co.

ELR Citation: 10 ELR 20389
Nos. No. 14348, 602 P.2d 147/14 ERC 1479/184 Mont. 127, (Mont., 10/16/1979)

The court holds that preparation of an environmental impact statement (EIS) under the Montana Environmental Policy Act (MEPA) is not required before a permit can be granted under the state's Hard Rock Mining Act (HRMA), but the court rules that the permit at issue is nonetheless invalid for failure to meet several requirements of the latter statute. Although issuance of a permit constitutes "state action" and mining would "significantly affect the human environment," the court concludes that the brief 60-day period provided under the HRMA for agency approval of an operating license application presents a statutory conflict and precludes preparation of an adequate EIS. The court also rejects plaintiffs' contention that preparation of an EIS is mandated by the Montana Constitution, noting that enactment of both MEPA and the HRMA predated the 1972 constitutional guarantee of a "clean and healthful environment." The Department of State Lands' issuance of an operating permit was invalid, however, because the permit application was inadequate under the HRMA on a number of grounds. First, the company submitted a map and reclamation plan for only 90 of the 500 acres covered by the permit. Second, a single sentence describing annual rainfall is an inadequate description of "pertinent climatic conditions." Finally, the plan contains no proposal for subsequent use except a statement that defendant would consider offering the land for other uses after reclamation. Plaintiff's objection to the lack of notice and opportunity to participate in a hearing prior to issuance of the permit is rejected because the issue was not raised within the statutorily prescribed 30-day period and neither the MEPA, the HRMA, nor the Montana Constitution contain mandatory notice and hearing requirements. Mandamus is issued to compel the Department to return the application to Anaconda for proper completion; further use of the permit area is enjoined pending its approval; and the case is remanded to the trial court for a hearing on attorney fees. The court refuses to grant mandamus against the Department of Health and Environmental Sciences for its failure to control air pollution from the permitted dump area since the duty was entirely discretionary, and mandamus lies only for agency violations of "clear legal duties."

Counsel for Plaintiffs
Dale L. McGarvey, Jon L. Heberling
McGarvey, Lence & Heberling
745 S. Main St., Kalispell MT 59901
(406) 755-5032

Counsel for Defendants
Mike Greely, Attorney
Department of Justice, State General Bldg., Helena MT 59601
(406) 449-2026

John F. North
Department of Highways, Legal Division, 1625 11th Ave., Helena MT 59601
(406) 449-2482

Stan Bradshaw
Department of Health and Environmental Services, Legal Division, 1424 9th Ave., Helena MT 59601
(406) 449-2630

Robert A. Poore Jr.
Poore, Roth, Robischon & Robinson
1341 Harrison Ave., Butte MT 59701
(406) 792-0488

David L. Holland
Anaconda Co., West Granite St., Butte MT 59701
(406) 723-4528

DALY and HARRISON, JJ., and JOEL G. ROTH, District Judge,* concur.

SHEA, J., specially concurs and will file an opinion later.