Montana Wilderness Association v. Montana Board of Health and Environmental Sciences,

No. 38902 (Mont. Dist. Ct. August 29, 1975)

Defendant's impact statement concerning its approval of a housing subdivision in Gallatin Canyon failed to meet the procedural requirements of the Montana Environmental Policy Act. The impact statement contains no economic analysis, no attempt to quantify aesthetic considerations such as visual impacts, no serious discussion of alternatives, no analysis of comments objecting to impacts on wildlife, no evaluation of traffic effects, no discussion of future energy needs, and no evaluation of future impacts. Since the impact statement is patently inadequate, injunctive as well as declarative relief is appropriate pending promulgation of an adequate environmental impact statement. The impact statement is void; defendant is ordered to rescind its removal of sanitary conditions on the plat in question; the intervening developer is ordered to stop further subdivision development.

Counsel for Plaintiffs
James Goetz
P.O. Box 931
Bozeman, Mont. 59715
(406) 587-0906

Counsel for Defendants
Michael Salvani
State Department of Health and Environmental Sciences
Helena, Mont. 59601
(406) 449-2544

Counsel for Intervenor Beaver Creek South, Inc.
William Conklin
Dzivi, Conklin, Johnson & Nybo
529 Great Falls National Bank Building
Great Falls, Mont. 59401
(406) 453-5441

[6 ELR 20043]

Bennett, J.:

OPINION AND DECLARATORY JUDGMENT

On February 20, 1975, plaintiffs filed a second amended complaint in this action. Thereafter, on March 7, 1975, defendants filed a motion to dismiss that second amended complaint, and on March 9, 1975, intervenors filed a motion to dismiss the second amended complaint. Intervenors and defendants filed briefs in support of their motion to dismiss. On March 20, 1975, plaintiffs asked leave to amend certain paragraphs of the second amended complaint and likewise filed a brief in opposition to the motions to dismiss. Leave was granted to amend the second amended complaint. On May 30, 1975, the Environmental Quality Council sought leave to file a brief as amicus curiae, and by its order of June 11, 1975, the court granted the petition and stated that it would consider the brief of amicus curiae. Further briefing was done by the plaintiffs and defendants on the matter before the court, the final brief of plaintiffs having been filed July 14, 1975. Oral argument not having been requested, and being deemed unnecessary by the court, the motions of the defendants and the intervenor to dismiss are before the court for determination.

I. Plaintiffs Have Standing

For the reasons set forth in our Memorandum and Order of February 11, 1975, and upon plaintiffs' testimony and affidavits of record in this case, I conclude the plaintiffs have standing to pursue the present action in this court.

II. The Cause is Appropriate and Ready for Determination under Rule 56 in Accordance with Rule 12(b)

The defendants and the intervenor have both moved for dismissal on grounds provided in Rule 12(b)(6) (failure to state a claim upon which relief can be granted). The last sentence of Rule 12(b) provides for conversion of such a motion to a motion made under Rule 56 for summary judgment, and consideration thereunder of matters outside the pleadings. Under such a motion, all facts well pleaded by the plaintiffs are deemed admitted. The principal fact pieaded by all parties is the environmental impact statement (EIS) of the defendant department of October 9, 1974. The plaintiff also pleads House Joint Resolution #73 of the Forty-Third Legislative Assembly, of which the court takes judicial notice. Interrogatories and the answers thereto may also be considered.

The central question presented is whether the EIS conforms to and meets the requirements of § 69-6504(b)(3) R.C.M. 1947. This determination may be made by comparison of the act with the EIS. The EIS is, therefore, the operative fact; it is not in issue and it is before the court. Thus there remains no outstanding factual issue and the matter is ready for determination by summary judgment.

III. The EIS Does Not Meet Statutory Requirements

A. Economic considerations. Section 69-6504 directs that, "to the fullest extent possible," the agencies of the state shall:

identify and develop methods and procedures which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations; . . . [69-6504(b)(2)].

Subparagraph (3) of the same section provides:

(3) include in every recommendation or report on proposals for projects, programs, legislation and other major actions of state government significantly affecting the quality of the human environment, a detailed statement on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local shortterm uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible state official shall consult with and obtain the comments of any state agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate state, federal, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the governor, the environmental quality council and to the public, and shall accompany the proposal through the existing agency review processes.

It might be argued that it was the intent of the legislature that subparagraph (2), standing by itself, requires only that the evaluating agency set up some kind of a system that will insure consideration of economic matters, but that the agency is not required to note such consideration in the detailed statement required by subparagraph (3).Obversely, it could be argued that subparagraph (2) makes economic considerations pertinent to over-all environmental impact and that, therefore, they should be set forth as an integral part of the detailed statements required by subparagraph (3).

It is, however, unnecessary to resolve this argument by interpreting legislative intent on the basis of statutory construction. The legislature has stated its intent specifically, and it did so prior to the completion of the instant EIS. By its Joint Resolution #73 of March 16, 1974, the legislature declared its intent to be:

[6 ELR 20044]

. . . that economic analysis shall accompany environmental impact statements as required by the foregoing sections of the act [referring specifically to §§ 69-6504 through 69-6514] and shall encompass an analysis of the costs and benefits to whomsoever they may accrue, including consideration of employment, income, investment, energy, the social costs and benefits of growth, opportunity costs, and the distribution effects; . . .

In researching and writing the EIS under consideration, the Department was either unaware of this legislative suggestion and the law it referred to, or ignored it. Nothing in the EIS rises to the dignity of an economic analysis; there is little evidence of consideration of economic matters, much less a balanced evaluation of them, as required. The one attempt at making some kind of economic analysis was an analysis of educational costs on page 39 of the EIS. The actual cost analysis appears to be inaccurate, in that the amount involved in education costs would be more likely around $186,000 rather than § 128,000. In addition there was no cumulative analysis of these costs coupled with other costs and their effect on the county.

The statement is also totally devoid of any discussion of employment, of income, of investments, and the statement is seriously inadequate regarding discussions of energy and of the social costs and benefits of growth and the opportunity costs involved. In answering plaintiff's interrogatory number 10 regarding these social costs, the defendant stated that they had no knowledge what these costs would be as compared to revenue. In interrogatory number 11, the plaintiffs asked the defendants:

State whether any market analysis has been conducted for the proposed subdivision.

The defendants answered a flat "No."

B. Aesthetic considerations. As noted in A, above, subsection (2) of § 69-6504 requires the evaluating agency to "identify and develop methods and procedures, which will insure that unquantified environmental amenities and values may be given appropriate consideration in decision making. . . ." While it might be difficult to describe the working parameters of an "unquantified environmental amenity," certainly esthetic considerations should be included in this encompassing ring. If this be so, it might be argued, again, that the legislature intended by this subparagraph simply to require that methods and procedures be established to evaluate esthetic considerations, and did not intend to require inclusion of these considerations in the EIS. I think not. Certainly esthetic considerations fit under the broad, general requirement for a statement of environmental impact (subparagraph (b)(3)(i)), and subparagraph (2) requires that some kind of procedure is required toimplement the EIS requirement.

What was done here to evaluate "visual impact," unquestionably an esthetic consideration which should be viewed as an "unquantified environmental amenity?"

Page 23 of the EIS offers the following statement:

Visual impact would certainly result from the proposed development. The severity of this visual impact is purely speculation, and the desirability is a matter of personal aesthetic values.

There are those who would argue, I'm sure, that the area under consideration in this EIS is the most beautiful in the world or in Montana. Yet the defendant department carries out the clear mandate for appropriate detailed, systematic, interdisciplinary consideration of this aspect of the development by observing, in effect: "Yep, it's sure going to raise hell with the scenery, depending on who's looking at it!" This is not an environmental impact statement within the meaning of the act.Furthermore, the answer to plaintiff's interrogatory No. 12 makes it quite clear that the Department had not developed any procedures whereby amenities such as aesthetic quality could be quantified and given consideration in the making of this EIS. Thus the law was not complied with in either the development or the presentation of the statement.

C. Alternatives. Section 69-6504(b)(3)(iii) requires a detailed statement on alternatives to the proposed action. Section 69-6504(b)(4) requires the evaluating agency to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;" (emphasis added). Reading this subsection in pari materia with the rest of the section, I conclude it was intended the description appear in the EIS. I don't know exactly what a "proposal which involves unresolved conflicts concerning alternative uses of available resources" means, but the letters attached to the EIS reveal an abundance of unresolved conflicts, and the EIS itself concedes there are alternatives to the decision made by the department. The alternatives are merely stated as conclusions: approve the plat as submitted, grant conditional approval pending successful operation of the waste water disposal system, or refuse to approve the plat. Considering the objections made by the Forest Service, the Highway Department, the Fish and Game Department and others, the bare statement of alternatives itself is patently inadequate. But there is no discussion or evaluation, detailed or otherwise, of the environmental impacts to be expected from the last two alternatives given. As an alternative to the intervenor, the Department suggests that it might avoid the rigors of the subdivision act, (§§ 69-5001 et seq. R.C.M. 1947) including compliance with the Environmental Policy Act, by developing tracts of over ten acres. It should be pointed out that this was an alternative open to consideration by the Department, as well as the intervenor. There is no detailed consideration of the impact of such alternative development.

D. Wildlife. The defendant department, in response to its initial, or proposed, EIS, received a veritable barrage of objections to and questions about the project from state and federal agencies and private groups concerned with wildlife. It duly recorded some of those comments in its EIS, but "begged off" from any in-depth consideration of them on the ground that wildlife habitat was not to be considered under the 1973 subdivision act, and passed the buck to the local community, which it said, could hold hearings on these matters under the same act (pp. 27, 28). There was no evaluation even attempted with regard to the serious questions raised in this area. Quoting from letters protesting or raising questions as to a proposed development cannot, by itself, be deemed to be a "detailed statement" on any of the matters required to be dealt with by § 69-6504(b)(3). Such comments are not only to accompany the proposal through review process (last sentence of the cited subparagraph) but clearly the final EIS must reveal that they have been considered and evaluated, and that a conclusion has been reached in regard to them. The Montana Environmental Policy Act and particularly its EIS provisions, was not designed merely to set up another conveyor belt for paper through the state agencies. The agencies have been directed to "use all practicable means" (§ 69-6503(a)) to achieve the ends of the act, environmental protection, through "a systematic, interdisciplinary approach to insure the integrated use of the natural and social sciences and the environmental design arts in planning and decision making which may have an impact on man's environment." (§ 69-6504(b)(1)). This exalted goal cannot be accomplished by the mere publication of objections and decision making that does not deal with them. In regard to wildlife, all the pertinent comments indicated an adverse environmental effect could not be avoided if the proposal were to be implemented (§ 69-6504(b)(3)(ii)). Yet the EIS offers nothing even approaching a definitive detailed statement on that effect.

E. Highways. The same applies to the EIS treatment of highway problems. According to the U.S. Forest Service, "the treatment of the effect on traffic is very incomplete." See P. 31, EIS. As stated on page 31 of the EIS:

Use of Highway 191 in the Gallatin Canyon may be approaching capacity during peak periods of the day now. Motor vehicle accident figures and deaths have increased many fold in the last five years. Beaver Creek South will intensify the problems. The report should accurately quantify these additional traffic problems and weigh their consequences including the consequences of a 4 lane highway.

A similar concern was expressed by the Department of Natural Resources and Conservation. See pages 32 and 33 of EIS. These factors are merely dismissed in the EIS. Section 69-6504(b)(3)(iv)(v), R.C.M. 1947, states that the EIS must contain a detailed statement on "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (b) any irreversible and irretrievable commitments of resources which would be involved in the proposed action [6 ELR 20045] should it be implemented. . . ." In the EIS the problem of traffic load and highway development are left for the future. See P. 33, EIS. There is no discussion of the effect of future highway reconstruction in terms of air pollution, fuel consumption, and visual impact. There is also no discussion as to what would be the effect if highway reconstruction does not take place, nor of the cumulative social, economic, and environmental impacts of continued development in the Gallatin Canyon.

F. Energy. The energy needs of the subdivision are superficially analyzed at best in the EIS. The U.S. Forest Service and the Department of Natural Resources both note the inadequacies in the EIS as to future energy needs. (See pages 34 and 35 of EIS.) These needs are merely mentioned by the defendant department and not examined in any detail.

G. Necessity.The actual necessity for the subdivision is questioned by the Department of Natural Resources and the Environmental Quality Council. The defendants state that the proposed development will be occupied by employees of Big Sky of Montana, Inc. The defendants view statements that the available housing in the subdivision might be out of the price range of Big Sky employees as not an important element and dismiss them. The law requires that this be analyzed, for it will certainly have an impact on the environment. If there is no need for the subdividsion, then the alternative of not approving the proposed subdivision should be explored in detail.

H. Cumulative impact. The cumulative impacts of the proposed subdivision must be discussed in greater detail. The EIS only gives cursory coverage to this on pages 43 and 45. As the Department of Natural Resources states on page 43 of the EIS, "The final EIS should, therefore, consider not only the direct impacts of this one proposal, but also the cumulative impacts of existing and potential subdivisions in a relatively pristine canyon setting." This type of analysis would comply with § 69-6504(b)(3)(iv), R.C.M 1947.

I would add as a gratuitous comment that throughout the statement there is an inherent suggestion that the matters noted above, and others, are beyond the expertise of the Department of Health and Environmental Sciences. This, I believe, is patently true. Its expertise, with regard to this project, has to do with such matters as drainage, sewage, water levels, sanitation, etc.Due to its responsibilities under the Subdivision Act, it is nevertheless charged with the responsibility of developing the EIS for the proposed project. It would seem that it could discharge that responsibility more adequately than it has here by "farming out" EIS sections to appropriate agencies of the state government for research and evaluation, possibly using the Environmental Quality Council (§ 69-6508 et seq.) as coordinator. In that way, the clear intention of the MEPA could be accomplished by fully utilizing the expertise of all interested state agencies to achieve a "systematic interdisciplinary approach."

For the reasons noted above, I conclude the procedure adopted in promulgating the EIS is wholly inadequate to meet the standards set by the statute. In view of this, I consider it unnecessary to examine the question of whether the EIS conforms to the defendant department' own regulation or the adequacy of their regulations.

IV. The Appropriate Remedy is Injunction

The plaintiffs in their prayer have called upon the court for equitable relief by way of injunction. The grounds therefor have been fully pleaded and briefed. The first question in this regard is whether such relief can be coupled with the declaratory judgment asked for. I believe it can be. The statute (§ 93-8908) so provides. At 101 ALR 693 it is stated:

Under a declaratory judgment statute permitting the plaintiff to ask for a declaration of right or duties, either alone or with other relief, the plaintiff, in an action for declaratory relief, may ask also for any affirmative or consequential relief to which he is entitled underthe facts alleged.

See also County of Los Angeles v. State Dept. of Public Health (322 P.2d 968), a subdivision platting case, at pp. 979 and 980.

The second question is whether injunctive relief can be provided in this particular case. MEPA is bereft of any specific provision for remedy. The same is true of the National Environmental Policy Act (NEPA), after which MEPA was patterned. NEPA, in this regard, as in others, has been extensively construed by the federal courts.We have no Montana Supreme Court interpretations of MEPA or, particularly, of its enforceability. We must therefore look to the federal court holdings.

Our § 69-6504 directs that "to the fullest extent possible:"

(a) The policies, regulations, and laws of the state shall be interpreted and administered in accordance with the policies set forth in this act. . . .

The language of § 102 of the federal act (43 U.S.C. §§ 4321 et seq., 83 Stat. 852, Pub. L. 91-190, § 4332) is identical, except the reference is to the public laws of the United States.

A landmark federal case in the interpretation of this section is Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, in which the court stated, at page 297: .

Section 102(1) directs that the policies, regulations, and public laws of the United States be interpreted in accordance with these policies to the fullest extent possible. Section 102(2) of course, sets forth the procedural requirements of the Act, discussed previously in this opinion. The purpose is to 'insure that the policies enunciated in section 101 are implemented.' S. Rep. 91-296, 91st Cong., 1st Sess. 19 (1969). The procedures included in § 103 of NEPA are not ends in themselves. They are intended to be 'action forcing.'

The unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact studies which will fill government archives. (Emphasis added.)

Perhaps the leading federal case in the interpretation and implementation of NEPA is Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Commission, 449 F.2d 1109. At page 1115 therein the court said:

The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factors — conducted fully and in good faith — it is the responsibility of the courts to reverse. As one District Court has said of Section 102 requirements: 'It is hard to imagine a clearer or stronger mandate to the courts.'

Here we have not, although urged to by the plaintiffs, ventured into a substantive evaluation of the merits of the defendants' decision. We have merely determined that the statement itself clearly shows that in many respects the decision made was not based on "individualized consideration and balancing of environmental factors — conducted fully and in good faith." I therefore conclude that supplemental relief by way of injunction is not only permitted but required in order to carry out the clear, strong mandate of our act.

JUDGMENT

It is hereby adjudged and decreed that the Revised Final Environmental Impact Statement for Beaver Creek South, a proposed subdivision in Gallatin County, Montana, published by the Department of Health and Environmental Sciences of the State of Montana, on October 9, 1974 (E.S. 74/85) does not comply procedurally with the Montana Environmental Policy Act (Ch. 238, L. 1971 §§ 69-6501 et seq., R.C.M. 1947) and is therefor void and of no legal effect.

It is further adjudged, decreed and directed that the Department of Health and Environmental Sciences of the State of Montana rescind its removal of sanitary restrictions on that certain plat filed with the Clerk and Recorder of Galiatin County of February 18, 1975 and denominated "Beaver Creek South Subdivision #J 6" (Certificate of Survey #13 filed March 1, 1974).

It is further ordered that the intervenor cease and desist from further subdivision development upon the land (SE1/4 § 17, T 7 S, R 4 E, M.P.M) embraced by said plat until the sanitary restrictions, now reimposed, are removed in accordance with § 69-5003(1)(b) after the promulgation by the Department of Health and Environmental Sciences of the State of Montana of a detailed statement conforming with the requirements of the Montana Environmental Policy Act.

It is further ordered that a certified copy of this judgment be filed in the office of the Clerk and Recorder of Gallatin County, Montana.