State ex rel. Montana Wilderness Association v. Board of Natural Resources & Conservation

No. 81-354 (648 P.2d 734, 200 Mont. 11) (Mont. July 9, 1982)

ELR Digest

The Supreme Court of Montana affirms the lower court and the Montana Board of Natural Resources and Conservation, holding that the board complied with the Montana Environmen-Policy Act (MEPA), the Montana Major Facility Siting Act, and the Montana Administrative Procedure Act (MAPA) in authorizing construction and operation of a 161-kilovolt (KV) electric transmission line. First, the court holds that the appropriate standard for review of the draft and final environmental impact statements (EISs) under MAPA is whether the agency action was clearly erroneous, arbitrary, or capricious. Using this standard, the court upholds the EIS required by MEPA as sufficiently detailed to enable the board to make a knowledgeable decision, even though the EIS (1) did not address the need for or alternatives to the project for all areas that the project will serve, (2) did not contain an independent analysis of the Montana Power Company's electricity load projections, (3) only implicitly determined that the no-action alternative would be unsatisfactory, and (4) could have more fully explored the project's costs and benefits.

Next, the court holds that the record supports the board's finding that future development and growth necessitate the project, and that conservation measures, use of waste heat, and alternative technologies would either not satisfy projected need or were economically infeasible. Also, the board had sufficient evidence to support its finding that the route chosen would have the least environmental impact. The court holds that under the MAPA, the board is not obliged to explicitly rule on each finding or conclusion of law that parties to the proceeding propose, as long as the board's own findings and conclusions are sufficiently supported by reasoned opinion. The board complied with the Facility Siting Act, which requires the board to issue a certificate of environmental compatibility and public need containing an environmental evaluation of the project, a plan for monitoring, a schedule for construction, and a signed statement of compliance with the terms and conditions of the certificate. The court finds that the board met the certification requirements by incorporating its findings, conclusions, and order by reference in the certificate.

Finally, the court holds that appellants were not denied the due process guarantee of a fair and impartial tribunal because an attorney for a ski resort that will be served by the project held a position on the board and acted as a hearing officer. The court holds that appellants were not prejudiced by the attorney's role in the proceedings because he was no longer on the board at the time the board approved the project, and the evidence does not support appellants' contention that he had a pecuniary interest in the proceedings or had prejudged the issues when he served as hearing officer.

Two judges dissent, arguing that the EIS is deficient for its failure to address the need for and alternatives to the project, required both by the MEPA and the Facility Siting Act.

The full text of this opinion is available from ELR (25 pp. $3.75, ELR Order No. C-1306).

Counsel for Appellants
William L. Madden
Goetz, Madden & Dunn
P.O. Box 1322, Bozeman MT 59715
(406) 587-0618

Counsel for Respondents
James F. Walsh III, Pamela K. Merrell, Donald MacIntyre
Montana Power Co., 40 E. Broadway, Butte MT 59701
(406) 723-5421

R.D. Corette Jr.
Corette, Smith, Pohlman & Allen
P.O. Box 509, Butte MT 59701
(406) 723-3205

Richard J. Andriolo
Board of Natural Resources & Conservation
32 S. Ewing, Helena MT 59620
(406) 449-3712

Haswell, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]