Montana Wilderness Association v. Board of Health and Environmental Sciences

No. 13179 (Mont. July 22, 1976)

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.

[6 ELR 20696]

Haswell, J.:

This is an action by the Montana Wilderness Association and the Gallatin Sportsmen's Association, Inc., for declaratory and injunctive relief against a proposed subdivision development in Gallatin County known as Beaver Creek South. The district court of Lewis and Clark County entered summary judgment (1) that the environmental impact statement on the proposed subdivision was void, (2) ordering reinstatement of the prior sanitary restrictions on the proposed subdivision, and (3) enjoining further development of the proposed subdivision until the reimposed sanitary restrictions are legally removed. One of the defendants and intervenor appeal.

Plaintiffs in the district court were the Montana Wilderness Association, a Montana nonprofit corporation decicated to the promotion of wilderness areas and aiding environmental causes generally, and Gallatin Sportsmen's Association, Inc., a Montana nonprofit corporation organized for charitable educational and scientific purposes including the conservation of wildlife, wildlife habitat and other natural resources.

Defendants are (1) the Board of Health and Environmental Sciences and, (2) the Department of Health and Environmental Sciences of the State of Montana. Intervenor Beaver Creek South Inc. is a Montana corporation and the developer of the proposed subdivision. The Montana Environmental Quality Council, a statutory state agency, appeared in the district court as amicus curiae.

Beaver Creek South is located in the canyon of the West Gallatin River adjacent to U.S. Highway 191 about seven miles south of Meadow Village of Big Sky of Montana. Beaver Creek crosses a portion of the property for about one-quarter mile along the north side. The general area where the proposed subdivision is located is a scenic mountain canyon area presently utilized as a wildlife habitat and a grazing area for livestock. Beaver Creek supports a salmonoid fishery. A two lane public highway, U.S. 191, runs through the canyon.

The developer Beaver Creek South, Inc., hereinafter called Beaver Creek, intends to subdivide approximately 95 acres into 75 lots for single-family and multi-family residences and a maximum of seven and one-half acres abutting U.S. Highway 191, for a neighborhood commercial area. The development of the subdivision is to be accomplished to two phases.

In 1973 Beaver Creek submitted to the Bozeman City-County Planning Board its subdivision plat contemplating Beaver Creek South for approval by the board and the county commissioners as required by §§ 11-3859 through 11-3876, R.C.M. 1947, the Montana Subdivision and Platting Act. In the spring of 1974 Beaver Creek filed the subdivision plat and plans and specifications for a water supply and sewer system with the Montana Department of Health and Environmental Sciences (hereinafter called the Department) for review and approval as required by §§ 69-5001 through 69-5009, R.C.M. 1947, the Sanitation in Subdivisions Act. Section 69-5003(2)(b) provides that a subdivision plat may not be filed with the county clerk and recorder until the Department has certified "that it has approved the plat and plans and specifications and the subdivision is subject to no sanitary restriction."

In April 1974 the Department circulated a "draft" environmental impact statement on the proposed subdivision in order to obtain comments on the proposal pursuant to § 69-6504(b)(3), R.C.M. 1947, of the Montana Environmental Policy Act (MEPA). Written comments were received and the Department issued its "final" environmental impact statement in June 1974. The following month plaintiff Associations commenced this action seeking a permanent injunction against the Department's removal of sanitary restrictions on the proposed Beaver Creek South. The Associations alleged failure of compliance with subdivision laws, administrative rules, Environmental Quality Council guidelines, and MEPA. The district court issued a temporary restraining order and an order to show cause. The Department and the Associations entered into a stipulation vacating the show cause hearing and the Department revised its final environmental impact statement, submitting a copy to the district court in October 1974. This revised final environmental impact statement is hereinafter called the Revised EIS.

Meanwhile, in September 1974, Beaver Creek was granted leave to intervene. Motions to dismiss and briefs were filed, and on February 11, 1975, the district court ordered the temporary restraining order be dissolved, and the Associations be given an opportunity to file an amended complaint seeking a declaratory judgment on any impact statement other than the one filed in June 1974. In its memorandum and order, the district court found the Associations had standing to sue a state agency, but the Department must be given an opportunity to exercise its discretion and that an injunction would lie "only after the Department has acted unlawfully."

On February 14, 1975 the Department conditionally removed the sanitary restrictions on Beaver Creek South.

On February 21, 1975, plaintiffs filed their second amended complaint seeking: (1) declaratory judgment that the Revised EIS of the Department was inadequate in law; (2) a permanent injunction prohibiting Beaver Creek from selling any of the lots or further developing Beaver Creek South until compliance with the laws of Montana was effected; and (3) a mandatory injunction ordering the Department to reimpose sanitary restrictions on Beaver Creek South.

The focus of the second amended complaint is that the Revised EIS does not comply with legal requirements of MEPA in these particulars:

(1) The Revised EIS does not disclose that the Department used to the fullest extent possible a systematic, interdisciplinary approach as required by § 69-6504(b)(1), R.C.M. 1947.

(2) The Revised EIS does not include a detailed statement of alternatives to the proposed action nor were such alternatives studied, developed or described to the fullest extent possible as required by § 69-6504(b)(3)(iii) and 69-6504(b)(4), R.C.M. 1947.

(3) The Revised EIS does not contain a detailed statement of the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity as required by § 69-6504(b)(3)(iv), R.C.M. 1947.

(4) The Revised EIS does not include to the fullest extent possible a detailed statement of the environmental impact of the proposed subdivision as required by § 69-6504(b)(3)(i), R.C.M. 1947.

(5) The Revised EIS contains no adequate consideration of the full range of the economic and environmental costs and benefits of the alternative actions available.

Defendants and intervenor filed motions to dismiss the second amended complaint. This complaint was further amended; the Environmental Quality Council was granted leave to file a brief as amicus curiae; briefs were filed by all parties; and the matter was submitted to the district court for decision.

The district court considered the motions to dismiss as motions for summary judgment under Rule 12(b)(6), M.R.Civ.P. and considered matters outside the pleadings, principally interrogatories and answers.

On August 29, 1975 the district court issued its opinion and declaratory judgment. In substance the district court held the plaintiffs have standing to prosecute this action, that the Revised EIS does not meet statutory requirements in various particulars, and plaintiffs are entitled to injunctive relief. Judgment was entered accordingly.

Defendant Department of Health and Environmental Sciences and intervenor Beaver Creek South, Inc. appeal from the judgment.

The issues can be summarized in this fashion:

1) Do plaintiff Associations have standing to maintain this action?

2) Does the Revised EIS satisfy the procedural requirements of the Montana Environmental Policy Act (MEPA)?

3) Are plaintiff Associations entitled to injunctive relief?

Appellants challenge the standing of the Associations to bring this suit. Appellants' arguments fall into three main categories: a) that the Associations have suffered no cognizable injury; b) that any injury suffered or threatened is indistinguishable from the injury to the public generally; and c) that neither MEPA, the Montana Administrative Procedure Act, nor any other statute grants standing to these Associations to sue agencies of the state.

Initially, the question of environmental standing under MEPA is one of first impression in Montana. Therefore, the Associations [6 ELR 20697] and amicus curiae have presented this court with numerous authorities from other jurisdictions on the issue of environmental standing. We have reviewed these authorities in detail. We find none are controlling as to the question before us, but a brief review of such authorities aids in the illumination of the determinative factors regarding this issue.

The Associations urge this court to adopt the rationale of the federal courts in finding environmental standing because the relevant portions of MEPA in issue here are patterned virtually verbatim after corresponding portions of the NationalEnvironmental Policy Act of 1969, 42 U.S.C. §§ 4321 through 4347, (NEPA).

In the federal courts, citizen challenges to alleged illegal agency action are often brought pursuant to the federal Administrative Procedure Act, 5 U.S.C. §§ 701 through 706. The companion cases of Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184, 188; and Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970), established the federal two-pronged test for standing to sue administrative agencies. The United States Supreme Court held that persons have standing to obtain judicial review of federal agency action under the federal Administrative Procedure Act where they allege that the challenged action causes them injury in fact and where the alleged injury is to an interest "arguably within the zone of interests to be protected or regulated" by the statutes that the agencies are claimed to have violated.

Data Processing and Barlow did not concern environmental matters, but such a case was presented in Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636, 641 [2 ELR 20192] (1972). In Sierra Club, a conservation organization alleged its "special interest" in conservation and sound management of public lands, and sued the Secretary of the Interior for declaratory and injunctive relief against the granting of approval or issuance of permits for commercial exploitation of a national game refuge area in California. Petitioner invoked the judicial review provisions of the federal Administrative Procedure Act. The Supreme Court commenced its discussion of standing with this statement:

. . . Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 678, 82 S. Ct. 691, as to ensure that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Flast v. Cohen, 392 U.S. 83, 101, 20 L. Ed. 2d 947, 962, 88 S. Ct. 1942. Where, however, Congress has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.

The Supreme Court held that petitioner lacked standing solely because it did not sufficiently allege "injury in fact" to its "individualized interests," that is, its individual members. Thus the Court did not reach the question of whether petitioner satisfied the "zone of interest" test.

In United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254, 269 [3 ELR 20536] (1973), proceedings were brought against the Interstate Commerce Commission (ICC) to enjoin the enforcement of certain administrative orders. Plaintiff organization alleged injury in that each of its members used the natural resources in the area of their legal residences for camping, hiking, fishing, sightseeing, and other recreational and aesthetic purposes. The alleged illegal activity was that the ICC failed to include with its orders a detailed environmental impact statement as required by NEPA. The Court found the allegations of the complaint with respect to standing were sufficient to withstand a motion to dismiss in the district court. The Court also reiterated from Sierra Club that "injury in fact" is not confined to economic harm:

. . . Rather, we explained [in Sierra Club]: "Aesthetic and environmental well-being, like economic well-being, are important ingredients in the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." . . . Consequently, neither the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area, not the fact that all those who use those resources suffered the same harm, deprives them of standing.

It was undisputed that the "environmental interests" asserted by plaintiff were within the "zone of interests" to be protected or regulated by NEPA, the statute claimed to have been violated.

Sierra Club and SCRAP underscore the fact that in the federal courts environmental standing has developed in the statutory context of the federal Administrative Procedure Act.

The lower federal courts have, of course, followed the "injury in fact" and "zone of interest" test. For example, in the Ninth Circuit court: National Forest Preservation Group v. Butz, 485 F.2d 408 [3 ELR 20783] (1973); Cady v. Morton, 8 ERC 1097, 527 F.2d 786 [5 ELR 20445] (1975); City of Davis v. Coleman, 521 F.2d 661 [5 ELR 20633] (1975).

Here, the Associations also cite several cases from California and Washington in support of their standing argument. The experience in the state of Washington has some pertinence to our inquiry. Washington's State Environmental Policy Act, Washington Revised Code, Ch. 43.21C (1972) (SEPA), is also modeled after NEPA and has been interpreted by the Washington courts in several cases. The leading case as to standing is Leschi Improvement Council v. Washington State Highway Commission, 84 Wash. 2d 271, 525 P.2d 774, 786 (1974). Washington's SEPA, like MEPA, contains no express provision for judicial review at the behest of private parties. In Leschi petitioners obtained review of a state highway commission's limited access and design hearings and of the commission's environmental impact statement, not pursuant to any statutory grant of standing, but by way of certiorari in the state's lower court. Petitioners also sought an injunction. The Washington supreme court held the petitioners had standing because they raised the question of whether a nonjudicial administrative agency committed an illegal act violative of fundamental rights. An illegal act was said to be one which is contrary to statutory authority. More important, the court held that petitioners sufficiently. More important, the court held that petitioners sufficiently alleged violation of a fundamental right because of the language in SEPA that each person has a "fundamental and inalienable rightto a healthful environment." Washington Revised Code § 43.21C.020(3). This section schematically corresponds to MEPA § 69-6503(b), which recognizes that "each person shall be entitled to a healthful environment. . . ."

In Leschi four justices dissented. They objected to the standing of petitioners because:

. . . Judicial review of the administrative proceeding involved, at the instance of persons standing in the position of the appellants, is not authorized by any statute or any doctrine of the common law, and there is no suggestion that it is mandated by any provision of the state or federal constitutions. (Emphasis supplied).

Here, appellants suggest this court follow certain Montana cases in denying standing on the ground that the Associations lack standing to enjoin public officers from acting. This argument fails to distinguish between the separate questions of standing and of injunctive relief. The particular issue of injunctions will be treated separately hereinafter.

In Montana, the question of standing to sue government agencies has arisen in the context of taxpayer and elector suits. State ex rel. Mitchell v. District Court, 128 Mont. 325, 339, 275 P.2d 642, involved a complaint seeking to enjoin the secretary of state from certifying nominees for election to a certain office. This court said:

The complaint which the plaintiff . . . filed in the district court shows that his only interest is as a taxpaying, private citizen and prospective absentee voter. It wholly fails to show that he will be injured in any property or civil right. Thus does [his] own pleading show him to be without standing or capacity to invoke equitable cognizance of a purely political question. . . . (Emphasis supplied.)

Holtz v. Babcock, 143 Mont. 341, 380, 390 P.2d 801, was an action to enjoin the governor and other state officers from performing [6 ELR 20698] an agreement regarding an airplane lease. It was held that plaintiff lacked standing to sue as a citizen, resident, taxpayer and airplane owner. On petition for rehearing the court stated:

. . . The only complaint a taxpayer can have is when [the alleged state action] affects his pocketbook by unlawfully increasing his taxes. Appellant here does not allege any particular injury which he personally would suffer. (Emphasis supplied.)

In State ex rel. Conrad v. Managhan, 157 Mont. 335, 338, 485 P.2d 948, the court summarily stated:

. . . We hold that relators as affected taxpayers, have standing to bring a declaratory judgment action [against county assessors and the state board of equalization] concerning a tax controversy. . . . [Emphasis supplied.]

Chovanak v. Matthews, 120 Mont. 520, 525-27, 188 P.2d 582, concerns an attack against the constitutionality of a statute rather than a challenge to particular agency action.However, we look to Chovanak for its general discussion of the principles of standing. There the plaintiff sued the state board of equalization for a declaratory judgment that a slot machine licensing act was constitutionally void. Plaintiff alleged he was a resident, citizen, taxpayer and elector of the county where the action was commenced. We quote Chovanak for the sound rules of jurisprudence enunciated:

It is by reason of the fact that it is only judicial power that the courts possess, that they are not permitted to decide mere differences of opinion between citizens, or between citizens and the state, or the administrative officials of the state, as to the validity of statutes. . . .

. . . The judicial power vested in the district courts and the Supreme Court of Montana, by the provisions of the Montana Constitution extend to such "cases at law and in equity" as are within the judicial cognizance of the state sovereignty. Article 8, secs. 3, 11. By "cases" and "controversies" within the judicial power to determine, is meant real controversies and not abstract differences of opinion or moot questions. Neither federal nor state Constitution has granted such power.

The only interest of the appellant in the premises appears to be that he is a resident, citizen, taxpayer and elector of the county. . . . He asserts no legal right of his that the said board has denied him, and sets forth no wrong which they have done to him, or threatened to inflict upon him.

Appellant's complaint is in truth against the law, not against the board of equalization. He represents no organization that has been denied a slot machine license. He seeks no license for himself. In fact it appears from his complaint that slot machines, licensed or unlicensed, are utterly anathema to him. There is no controversy between him and the board of equalization.

It is held in Montana, as it is held in the United States Supreme Court, and by courts throughout the nation, that a showing only of such interest in the subject of the suit as the public generally has is not sufficient to warrant the exercise of judicial power. . . .

It is clear from these Montana cases that the following factors constitute sufficient minimum criteria, as set forth in a complaint, to establish standing to sue the state:

1) The complaining party must clearly allege past, present or threatened injury to a property or civil right.

2) The alleged injury must be distinguishable from the injury to the public generally, but the injury need not be exclusive to the complaining party.

3) The issue must represent a "case" or "controversy" as is within the judicial cognizance of the state sovereignty.

With the foregoing criteria in mind, we hold plaintiff Associations have standing to seek judicial review of the Department's actions under MEPA.

First, the complaint alleges a threatened injury to a civil right of the Associations' members, that is, the "inalienable . . . right to a clean and healthful environment," Article II, § 3, 1972 Montana Constitution. This constitutional provision, enacted in recognition of the fact that Montana citizens' right to a clean and healthful environment is on a party with more traditional inalienable rights, certainly places the issue of unlawful environmental degradation within the judicial cognizance.

We have studied appellants' arguments that Article IX, § 1, 1972 Montana Constitution, states that the legislature shall provide for the enforcement of the state's duty to "maintain and improve a clean and healthful environment in Montana," and the legislature shall provide for "adequate remedies" to protect it. We have studied the Constitutional Convention minutes surrounding Article IX and are aware the intent of the delegation was for the legislature to act pursuant to Article IX. But, we cannot ignore the bare fact that the legislature has not given effect to the Article IX, § 1 mandate over a period of years. Moreover, the declaration of rights in Article II, the article dealing with citizens' fundamental rights, gives "All persons" in Montana a sufficient interest in the Montana environment to enable them to bring an action based on those rights, provided they satisfy the other criteria set forth.

Intervenors urge this court to consider the lengthy dissent in the Washington Leschi case as persuasive authority that the plaintiff Associations lack standing. The portion of that dissent relied upon, deals with the proposition the petitioners there came under no statutory grant of standing and were therefore excluded from the courts in a SEPA case. However, that dissent actually supports our holding here. The dissent assails the purported statutory creation of a "fundamental right" in SEPA upon which standing may be founded, and argues that a fundamental right can only be derived from the fundamental law. We concur and find an inalienable, or fundamental, right was created in our fundamental law, Article II, § 3, 1972 Montana Constitution.

Second, the complaint alleges on its face an injury to the Associations which is distinguishable from the injury to the general public. When the plaintiffs do not rely on any statutory grant of standing, as here, courts must look to the nature of the interests of plaintiffs to determine whether plaintiffs are in a position to represent a "personal stake in the outcome of the controversy" ensuring an "adversary context" for judicial review. Sierra Club v. Morton, supra; Chovanak v. Matthews, supra. Both Associations allege, in effect, that they are relatively large, permanent, nonprofit corporations dedicated to the preservation and enhancement of wilderness, natural resources, wildlife and associated concerns. Both Associations allege substantial use of the public lands adjacent to Beaver Creek South by their members for various recreational purposes. The Gallatin Sportsmen's Association contributed to the Department's Revised EIS by way of written comments to the draft environmental impact statement. These facts are sufficient to permit the Associations to complain of alleged illegal state action resulting in damage to the environment.

Third, there can be no doubt that unlawful environmental degradation is within the judicial cognizance of the state sovereignty. The constitutional provisions heretofore discussed and MEPA itself unequivocably demonstrate the state's recognition of environmental rights and duties in Montana The courts of the state are open to every person for the remedy of lawfully cognizable injuries. Article II, § 16, 1972 Montana Constitution; § 93-2203, R.C.M. 1947.

Finally, we reiterate these Associations are citizen groups seeking to compel a state agency to perform its duties according to law. This concept is novel in Montana only insofar as it is raised here in the context of the state's explicit environmental policy. Were the Associations denied access to the courts for the purpose of raising the issue of illegal state action under MEPA, the foregoing constitutional provisions and MEPA would be rendered useless verbiage, stating rights without remedies, and leaving the state with no checks on its powers and duties under that act. The statutory functions of state agencies under MEPA cannot be left unchecked simply because the potential mischief of agency default in its duties may affect the interests of citizens without the Associations' membership. United States v. SCRAP, supra.

The second major issue concerns the adequacy of the Revised EIS filed by the Department on the Beaver Creek South subdivision.

Throughout the argument Beaver Creek has maintained that [6 ELR 20699] MEPA has no bearing upon the Department's review of the proposed subdivision plat and an environmental impact statement is not required. If such statement is required, then Beaver Creek allies itself with the Department's pesition. The Department concedes that an environmental impact statement is required, but contends its responsibilities under MEPA are circumscribed by other statutory authority. In both Beaver Creek's and the Department's arguments, the thrust is that subdivision review has been comprehensively provided for in two acts hereinbefore cited: the Subdivision and Platting Act and the Sanitation in Subdivision and Platting Act is to place final subdivision approval authority in the hands of local government (e.g., § 11 3866, R.C.M. 1947), and the Department can interfere with town, city, or county subdivision approval only to the extent of its particular expertise and authority under the Sanitation in Subdivisions Act. Thus, they allege, if a Department environmental impact statement is required, it need deal in detail only with the environmental effects related to water supply, sewage disposal, and solid waste disposal.

Montana's Environmental Policy Act was enacted in 1971 and is patterned after the National Environmental Policy Act. It is a broadly worded policy enactment in response to growing public concern over the innumerable forms of environmental degradation occurring in modern society. The first two sections of MEPA state:

69-6502. Purpose of act. The purpose of this act is to declare a state policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the state; and to establish an environmental quality council.

69-6503. Declaration of state policy for the environment. The legislative assembly, recognizing the profound impact, of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the state of Montana, in co-operation with the federal government and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can coexist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Montanans.

(a) In order to carry out the policy set forth in this act, it is the continuing responsibility of the state of Montana to use all practicable means, consistent with other essential considerations of state policy, to improve and co-ordinate state plans, functions, programs, and resources to the end that the state may —

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Montanans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable or unintended consequences;

(4) preserve important historic, cultural, and natural aspects of our unique heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(b) The legislative assembly recognizes that each person shall be entitled to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

These sections unequivocably express the intent of the Montana legislature regarding environmental policy.

But MEPA does more than express lofty policies which want for any means of legislative or agency implementation. Section 69-6504, R.C.M. 1947, contains "General directions to state agencies" and provides:

The legislative assembly authorizes and 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, and

(b) all agencies of the state shall

(1) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment;

(2) 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;

(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 short-term 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. . . .

The "detailed statement" described by subsection (b)(3) is referred to as the environmental impact statement, or EIS.

Appellants emphasize that the Subdivision and Platting Act was passed two years after MEPA, and this circumstance expresses a legislative intent that local review of environmental factors, particularly under §§ 11-3863 and 11-3866, R.C.M. 1947, obviates the necessity for Departmental review. Such an interpretation, however, conflicts with the terms of MEPA, § 69-6507, R.C.M. 1947:

The policies and goals set forth in this act are supplementary to those set forth in existing authorizations of all boards, commissions, and agencies of the state.

Had the legislature intended local review to replace the rigorous review required by responsible state agencies, it could easily have so [6 ELR 20700] stated. The existing statutes evince a legislative intent that subdivision decisions be made at the local planning level based upon factors with an essentially local impact, and that state involvement triggers a comprehensive review of the environmental consequences of such decisions which may be of regional or statewide importance.

An illustration of this interpretation is provided by a comparison of the provisions of MEPA, hereinbefore set forth, with certain provisions of the Subdivision and Platting Act. The statement of policy in the Subdivision and Platting Act contains a mandate to "require development in harmony with the natural environment," § 11-3860, R.C.M. 1947. Section 11-3863(1), R.C.M. 1947, requires local governing bodies to adopt regulations and enforcement measures for, inter alia, "the avoidance of subdivision which would involve unnecessary environmental degradation. . . ." Subsection (2) requires the department of community affairs to prescribe minimum requirements for local government subdivision regulations, including "criteria for the content of the environmental assessment required by this act." Subsection (3) provides that this "environmental assessment" must be submitted to the governing body by the subdivider. Subsection (4) describes the environmental assessment which emphasizes research as to water, sewage, soil and local services. While these factors may be among the more significant immediate environmental problems created by a subdivision, an assessment of them does not approach the scope of the inquiry required by MEPA § 69-6504, R.C.M. 1947.

Furthermore, there is no irreconcilable repugnancy between these acts which would render either the Subdivision and Platting Act or MEPA a nullity. It is suggested the district court's judgment leads to the proposition that the Department could "veto" a local subdivision approval solely on the basis of its EIS — in direct contravention of the intent of the Subdivision and Platting Act. While this "veto" prospect is feasible, two points are disregarded by the argument. First, MEPA was enacted to mitigate environmental degradation "to the fullest extent possible." Second, MEPA does not call for a halt to all further development; its express direction to agencies is to "utilize a systematic, interdisciplinary approach" to foster sound environmental planning and decision making.A state agency acting pursuant to this directive does not invoke the specter of state government vetoing viable local decisions. The concurrent functions of local and state governments with respect to environmental decisions serve to enhance the environmental policy expressed in all of the statutes here considered, that action be taken only upon the basis of well-informed decisions.

Thus, the statutes must be read together as creating a complementary scheme of environmental protection. As stated in Fletcher v. Paige, 124 Mont. 114, 119, 220 P.2d 484:

The general rule is that for a subsequent statute to repeal a former statute by implication, the previous statute must be wholly inconsistent and incompatible with it. United States v. 196 Buffalo Robes, 1 Mont. 489, approved in London Guaranty & Accident Co. v. Industrial Accident Board, 82 Mont. 304, 309, 266 Pac. 1103, 1105. The court in the latter case continued: "The presumption is that the Legislature passes a law with deliberation and with a full knowledge of all existing ones on the same subject, and does not intend to interfere with or abrogate a former law relating to the same matter unless the repugnancy between the two is irreconcilable."

See: City of Billings v. Smith, 158 Mont. 197, 490 P.2d 221; State ex rel. Esgar v. District Court, 56 Mont. 464, 185 P. 157.

Support for our interpretation of the scope of MEPA is found in a leading federal case interpreting the NEPA. In Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109, 1112, 17 ALR Fed 1 [1 ELR 20346] (D.C. Cir. 1971), regulations proposed by the Atomic Energy Commission (AEC) were challenged on the basis that the proposed regulations did not adequately provide for consideration of all environmental factors as mandated by NEPA. The AEC argued that its authority extended only to nuclear related matters and that it was prohibited from independently evaluating and balancing environmental factors which were considered and certified by other federal agencies. The Calvert Cliffs' court found the AEC's interpretation of NEPA unduly restricted, stating:

NEPA . . . makes environmental protection a part of the mandate of every federal agency and department. The Atomic Energy Commission, for example, had continually asserted prior to NEPA, that it had no statutory authority to concern itself with the adverse environmental effects of its actions. Now however, its hands are no longer tied. It is not only permitted, but compelled, to take environmental values into account.

The district court was correct in treating MEPA as the controlling statute in this case.

The district court held the Revised EIS does not comply procedurally with MEPA on eight separate grounds.The court expressly declined to venture into a review of the substantive merits of the Department's reasoning and conclusions.

A preliminary question is the inquiry into the proper scope of review of the Revised EIS by the courts. Because MEPA is modeled after NEPA, it is appropriate to look to the federal interpretation of NEPA. This court follows the rule found in Ancient Order of Hiberians v. Sparrow, 29 Mont. 132, 135, 74 P. 197:

. . . that the construction put upon statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and . . . only strong reasons will warrant a departure from it."

Again, in State v. King Colony Ranch, 137 Mont. 145, 151, 350 P.2d 841:

The State Board of Equalization was and is warranted in following the Federal interpretation of the language which the Legislature of this state adopted from the Act of Congress.

See: Cahill-Mooney Construction Co. v. Ayers, 140 Mont. 464, 373 P.2d 703; Roberts v. Roberts, 135 Mont. 149, 338 P.2d 719; Lowe v. Root, 166 Mont. 150, 531 P.2d 674, 32 St. Rep. 122.

In determining the proper scope of judicial review of environmental impact statements under NEPA the federal courts have framed the question in terms of whether NEPA is merely a procedural statute or whether it is a substantive statute creating substantive duties reviewable by the courts. See Note: The Least Adverse Alternative Approach to Substantive Review under NEPA, 88 Harvard Law Review 735 (1975). However, because the district court ruled on procedural grounds, we limit our inquiry to procedural matters.

The United States Supreme Court recently stated in Aberdeen & Rockfish R.R. Co. v. SCRAP, 422 U.S. 289, 95 S. Ct. 2336, 45 L. Ed. 2d 191, 215 [5 ELR 20418] (1975):

. . . NEPA does create a discreet procedural obligation on government agencies to give written consideration of environmental issues in connection with certain major federal actions. . . .

In Calvert Cliffs', supra (449 F.2d 1109, 1115), the District of Columbia Court of Appeals stated:

. . . 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. . . .

The Ninth Circuit Court of Appeals firmly bases its reviewing standard on the federal Administrative Procedure Act. Lathan v. Brinegar, 506 F.2d 677 [4 ELR 20802] (1974); Cady v. Morton, 527 F.2d 786 [5 ELR 20445]; Trout Unlimited v. Morton, 509 F.2d 1276, 1282, 1283 [5 ELR 20151] (1974). In Trout Unlimited the court expanded on its explanation:

The "without observance of procedure required by law" § 706(2)(B) standard, however, is less helpful in reviewing the sufficiency of an EIS than one might wish. . . .

It follows, therefore, that in determining whether the appellees prepared an adequate EIS we will be guided in large part by "procedural rules" rooted in case law. . . . All such rules should be designed so as to assure that the EIS serves substantially the two basic purposes for which it was [6 ELR 20701] designed. That is, in our opinion an EIS is in compliance with NEPA when its form, comment and preparation substantially (1) provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in the light of its environmental consequences, and (2) make available to the public, information of the proposed project's environmental impact and encourage public participation in the development of that information.

We are also mindful that the policies set forth in § 69-6503, R.C.M. 1947, are to be implemented by state agencies in accordance with §§ 69-6504(a) and 69-6507, R.C.M. 1947.

In light of the foregoing, the scope of judicial review of the Revised EIS in this case is limited to a consideration of whether the Department provided a sufficiently detailed consideration and balancing of environmental factors which will ensure that the procedure followed will give effect to the policies of MEPA, aid the Department in decision making, and publicize the environmental impact of its action.

We will consider each factor of the Revised EIS found legally deficient by the district court in the sequence set forth in its opinion.

The district court held the Department failed to include in the Revised EIS anything rising to the dignity of an economic analysis, as required by MEPA and by House Joint Resolution No. 73, approved March 16, 1974. A joint resolution is not binding as law on this court, but we give it consideration as a clear manifestation of the legislative construction of MEPA. State v. Toomey, 135 Mont. 35, 335 P.2d 1051; State ex rel. Jones v. Erickson, 75 Mont. 429, 244 P. 287. House Joint Resolution No. 73 states in relevant part:

WHEREAS, it is a matter of serious concern to the legislature that this enactment [MEPA] be fully implemented in all respects,

NOW, THEREFORE, BE IT RESOLVED. . .

That all agencies of state government are hereby directed to achieve forthwith the full implementation of the Montana Environmental Policy Act including the economic analysis requirements of sections 69-6504 through 69-6514 . . . and

. . . that economic analysis shall accompany environmental impact statements as required by the foregoing sections of the act and shall encompass an analysis of the costs and benefits to whomsoever they may accrue, including considerations of employment, income, investment, energy, the social costs and benefits of growth, opportunity costs, and the distribution effects. . . .

With the exception of a discussion of educational costs, the Revised EIS contains scant economic analysis. The Department seeks to explain this away with a reference to the function of local governing bodies in compiling economic data, and states it would be a duplication of effort for the Department to so engage itself. Earlier in this opinion we discussed this attempt to circumvent the intent of MEPA as expressed by the legislature — in this instance as recently as 1974. The Department may not abdicate its duties under MEPA to local governments.

The cost-benefit analysis required by MEPA, as construed by the legislature, encompasses a broad consideration of several factors categorized in House Joint Resolution No. 73, approved March 16, 1974. A reasonable cost-benefit economic analysis undertaken pursuant to these criteria would, in effect, accomplish most of the purposes sought to be served by an environmental impact statement. Here, for example, the Revised EIS asserts that Beaver Creek South will provide necessary housing for many employees at nearby Big Sky of Montana. This comment, however, is not accompanied by any data to support the conclusion that Big Sky employees could afford, or would desire, to live at Beaver Creek South. In other words, the Revised EIS does not consider or disclose the approximate costs of the residential units, the average incomes of Big Sky employees, or even the likelihood that this projected housing use will come to pass. Such data is contemplated by MEPA.

The Department clearly ignored its duties to provide an economic analysis in its Revised EIS, as the district court found. Also the cooperative inter- and intra-governmental approach fostered by MEPA, § 69-6503, R.C.M. 1947, should encourage the free exchange of data compiled by local and state agencies; if the local government prepares an economic analysis, such could be incorporated as part of the Department's environmental impact statement.

The gist of the Revised EIS, p. 23, with respect to aesthetic considerations is demonstrated by its comments on visual impact:

A 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.

. . . Any development, including the proposed Beaver Creek South, placed within this scenic canyon setting would be considered aesthetically offensive by a majority of people.

Again, the Revised EIS, p. 24, affirms that visual impact is a matter of "speculation" because "Economists have not developed an acceptable process to place an economic valuation on such intangibles as aesthetics."

This latter comment betrays a fundamental weakness of the Department's approach to its responsibilities under MEPA. In decrying the absence of a precise quantitative or qualitative measure, the Department ignores the recognition of this variable factor in § 69-6504(b)(2), as one which must "be given appropriate consideration in decision making along with economic and technical considerations." (Emphasis supplied.) Under § 69-6504(b)(3)(i), the Department is required to prepare a detailed statement on "the environmental impact of the proposed action" and visual impact falls within the meaning of this subsection. There is no detailed description of the design of the proposed residential units, the compatability of the architecture with the surrounding landscape, the obstruction or availability of views, or the relationship of the open spaces to these factors. The Revised EIS comments in this regard are not sufficiently detailed under any standard conceivable to give meaning to the act or inform decision makers and the public of the probable aesthetic consequences of the development.

Section § 69-6504(b)(3)(iii), R.C.M. 1947, requires an environmental impact statement to contain "alternatives to the proposed action." Section 69-6504(b)(4), R.C.M. 1947, requires agencies 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." The latter section appears to be operable whether or not an environmental impact statement is prepared. Trinity Episcopal School Corporation v. Romney, 8 ERC 1033, 523 F.2d 88 [5 ELR 20497] (2d Cir. 1975).The district court correctly concluded the subsection (b)(4) description is to be included in a subsection (b)(3) environmental impact statement.

However, the district court erred in its opinion that discussion of alternatives in the Revised EIS is "patently inadequate." The district court merely viewed the last two pages of the Revised EIS under the "Alternatives" heading, wherein various alternatives are essentially stated as conclusions. This review ignores the reasonable discussion of alternatives contained in other portions of the Revised EIS regarding such factors as water supply, wastewater, and police and fire protection. As stated by the Ninth Circuit Court of Appeals in Life of the Land v. Brinegar, 485 F.2d 460, 472 [3 ELR 20811] (1973):

NEPA's "alternatives" discussion is subject to a construction of reasonableness. . . . Certainly, the statute should not be employed as a crutch for chronic faultfinding. Accordingly, there is no need for an EIS to consider an alternative whose effect cannot be reasonably ascertained, and whose implementation is deemed remote and speculative.

The discussion of alternatives in the Revised EIS viewed in its entirety is sufficiently detailed to comply with the procedural requirements of MEPA.

The Revised EIS contains reproductions of lengthy comments from the state Department of Fish and Game and the Gallatin Sportsmen's Association regarding impact of the proposed development on wildlife in the Gallatin Canyon. Other comments are also mentioned. All of the comments indicated that an adverse environmental effect on wildlife could not be avoided if the proposal were [6 ELR 20702] to be implemented. Section 69-6504(b)(3)(ii), R.C.M. 1947. The Revised EIS, p. 28, rather than dealing with a consideration of these adverse effects, contains a protracted discussion of the legislative history of the Subdivision and Platting Act and the local level hearings on the instant plat proposal, and concludes by stating:

Therefore, there is an opportunity to effect rejection or revision of a subdivision for environmental reasons at the county level. This would appear to satisfy the spirit in which the Montana Environmental Policy Act was enacted.

We find this justification for inaction and ad hoc agency "legislating" to be inappropriate in an environmental impact statement. The Department's responsibility in pursuing its duties under MEPA is to consider all relevant environmental values along with other factors and come to a conclusion with regard to them. Although we do not suggest the Department has the internal resources and expertise with which to expand upon or refute the wildlife comments received from outside sources, we do hold it is within the Department's province under MEPA to reach its decision based upon a procedure which encompasses a consideration and balancing of environmental factors. The district court was correct in holding that the mere transmittal of comments adverse to the proposal is insufficient.

The Department of Highways commented on the effect of the proposed subdivision with respect to traffic flow on U.S. Highway 191. The Department of Highways states the Beaver Creek South Subdivision "will generate a large amount of traffic," citing figures, and states this increased volume "will not warrant the construction of a four lane facility in this vicinity." Several challenging comments call for more detailed and accurate information, but the Revised EIS, at p. 33, states the Department of Highways reaffirms its statement and on that basis says:

. . . Beaver Creek South would not be the development that would make reconstruction [of the highway] necessary.

The district court found this portion of the Revised EIS lacking because the treatment of highways was "incomplete," there was no discussion of the effect of future highway construction, and also no discussion of cumulative social, economic and environmental impacts of continued development in the Gallatin Canyon.

We believe the highway discussion is procedurally adequate and that the district court's opinion on this point requires an unwarranted clairvoyance on the part of the Department. In contradistinction to the wildlife discussion where the agency with the greatest expertise in the field (Department of Fish and Game) raised serious adverse questions which were not addressed, here the Department is justified in relying on the Department of Highways projections for future traffic flow. The published comments and accompanying discussion demonstrate a reasonable consideration and balancing of environmental factors.

Comments of Montana Power Company in the Revised EIS indicate to the Department of Highways projections for future traffic flow. The published comments and accompanying discussion demonstrate a reasonable consideration and balancing of environmental factors.

Comments of Montana Power Company in the Revised EIS indicate to the Department that the company would have "no problem" in supplying the electricity needs of the proposed subdivision, and that this capacity could be met with present transmission lines. The Revised EIS notes at p. 36 that the proposed subdivision "would be a contributing factor toward any future necessity for additional service." The adverse comments to this in the Revised EIS concentrate on the issue of whether or not Montana Power Company is counting on the use of a proposed new power line into the canyon from the west. The Department's conclusion does not dispute the information provided it by the power company. The district court held that this analysis is superficial at best.

The energy needs of the Gallatin Canyon with respect to Beaver Creek South, and future development, are sufficiently considered and balanced in the Revised EIS. The Department, through its inclusion in the Revised EIS of conflicting comments, cannot be expected to provide detail beyond that which is reasonably foreseeable. The Department reasonably concluded the proposed development would contribute to the total power needs of the area and to any future necessity for additional service. This constitutes procedural compliance with MEPA in that the departmental decision makers are made aware of the environmental consequences regarding energy, and the same information is made available to other branches of government and the public.Trout Unlimited v. Morton, 509 F.2d 1276.

The district court held that the "actual necessity" for the proposed subdivision must be analyzed. As the appellants correctly point out, there is no provision in MEPA which requires a study of necessity. Therefore, the district court's opinion on this point is erroneous.

We point out, however, the necessity of the project was gratuitously introduced into the Revised EIS by the Department in order to publish therein a letter by Big Sky of Montana, Inc. which suggests that the Beaver Creek South subdivision will alleviate a housing shortage for employees at Big Sky. In response to several challenging comments received by the Department, the Revised EIS then reverses its earlier position by stating that the objections may be valid, but they have no bearing on whether or not to approve the plat.

This turnabout of the Department within the Revised EIS evidences an attitude that an environmental impact statement is simply window dressing to pacify opponents of the Department's actions. MEPA was not enacted to provide the government and public with project justifications by state agencies. We hold that if the Department deems the necessity of the development to be a critical factor in its analysis of the impact of the proposed subdivision, then it is bound at least to make a reasonable consideration of the necessity of the project in light of the reasonable objections made to the necessity premise.

The district court held that cumulative impacts must be discussed in greater detail. The Revised EIS contains a detailed analysis of the cumulative impact of increasing the nutrient load in the Gallatin River from the subdivision's domestic water sources. No other cumulative impacts are discussed in the same portion of the Revised EIS. However, the Revised EIS as a whole contains several references to anticipated future environmental impacts in the vicinity, and a reasonably detailed summary of the pending comprehensive plan for the Gallatin Canyon developed by the Gallatin Canyon Planning Study Committee. This constitutes a sufficiently detailed consideration and disclosure regarding "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity." Section 69-6504(b)(3)(iv), R.C.M. 1947.

In summary, the Revised EIS is procedurally inadequate in its analysis of economic costs and benefits, aesthetic considerations, and wildlife factors. This holding is not to be construed as a mandate for technical perfection; rather, we find simply that the Revised EIS does not sufficiently consider and balance the full range of environmental factors required under the terms of MEPA. If the policy and purpose of MEPA are to have any practical meaning, state agencies must perform their duties pursuant to the directives contained in that Act.

Having found that the district court correctly declared the Revised EIS to be procedurally inadequate and void the final question is whether plaintiff Associations arelentitled to injunctive relief as ordered by the district court.

The rule is well settled that injunction actions by private parties against public officials must be based upon irreparable injury and a clear showing of illegality.State ex rel. Keast v. Krieg, 145, Mont. 521, 402 P.2d 405. Environmental damage as alleged by the Associations is an injury within the scope of the judicial cognizance. Furthermore, the preceding discussion indicates the Revised EIS does not meet the minimum requirements of the law under MEPA and is clearly illegal.

The Department and Beaver Creek allege an injunction is barred by § 93-4203(4), R.C.M. 1947, which states:

An injunction cannot be granted:

(4) to prevent the execution of a public statute, by officers of the law, for the public benefit.

This argument overlooks the cases which hold that illegal actions by public officials may be enjoined. In Larson v. The State of Montana and the Department of Revenue, 166 Mont. 449, 534 P.2d 854, 32 St.Rep. 377, 384, this court overruled the dicta in Keast to the effect that an injunction against public officers was banned by [6 ELR 20703] § 93-4203(4), stating:

The preferable law is enunciated in Hames v. City of Polson, 123 Mont. 469, 479, 215 P.2d 950, where it was held:

". . . publicbodies and public officers may be restrained by injunction from proceeding in violation of the law, to the prejudice of the public, or to injury of individual rights. . . ."

We affirm the district court holding that injunctive relief is proper in this case.

The summary judgment is affirmed.

[6 ELR 20703]

Mr. Justice John Conway Harrison; concurring in part and dissenting in part:

I concur in the first two issues of the majority opinion. I dissent on the third issue allowing plaintiff Associations injunctive relief.

To allow the issuance of an injunction against a public official the majority had to find the Revised EIS, in not meeting the minimum requirements set forth in MEPA in three categories (economic analysis, aesthetic values, and wildlife), becomes so clearly illegal as to come within the exceptions set forth in State ex rel. Keast v. Krieg, 145 Mont. 521, 402 P.2d 405. I have searched in vain to find such a statutory authority allowing the courts of this state to use injunctive powers in this manner.

A more complete factual background should have been considered by the majority, particularly as to the legal and economic position of Beaver Creek South, Inc., the landowner. Beaver Creek had to intervene to get into the action to protect its property and may well be the victim of substantial injustice as a result of the action of the district court and a further prolonging of the cause by the majority opinion. Beaver Creek had no control whatsoever over the course of the action nor over the Revised EIS under attack. Beaver Creek merely owned the land it wanted to develop. Under the law Beaver Creek could have subdivided the land into twenty acre tracts, have erected large condominiums thereon, serviced them with wells and septic tanks and thereby by-passed all the environmental roadblocks that have stopped its development. Rather, Beaver Creek those a more responsible approach, and that was to build a planned unit development under § 11-3861(5), R.C.M. 1947.

Thereafter there followed several years of administrative and district court hearings. As to the use of the injunctive power of the district court in the February 11, 1975 order and memorandum, the district court denied injunctive relief because it could not determine what action the Department would take. In so doing, the court granted plaintiff Associations the right to seek further declaratory relief, but not injunctive relief. It would appear from the February 11, 1975 order the court contemplated the Department would thereafter do something. The department did; it removed the sanitary restrictions and the subdivision plat was filed. Six months later the district court issued a mandatory injunction requiring the Department to undo, what it had already allowed it to do. No consideration seems to have been given to the hardships of the property owner. The parties, particularly, should have been able to rely on the district court's prior rulings as the law of the case. To reverse itself, the district court placed the whole development in jeopardy. The court should have declared the issue moot, for an injunction should not issue to restrain an act already committed. Bouma v. Bynum Irrigation Dist., 139 Mont. 360, 364 P.2d 47.

Here, the injunction granted against Beaver Creek in more unusual for it has been restrained by private citizens from the full use of its land that is fully authorized by the state and local entities that have jurisdiction over the matter, i.e., the Department and the Gallatin County Commissioners. A member of the public, without some special interest of his own, should not have a right to restrain the use of private property in this manner. To allow it makes property rights useless.

It should be noted that under Montana statutes, § 57-110, R.C.M. 1947, even if Beaver Creek were committing a public unisance on its land a private person could not bring an action for abatement unless the public nuisance was injurious to him as opposed to other members of the public. Here the claimed interests of plaintiff Associations are no greater than the interests of the public in connection with a public nuisance, and we should give them no greater rights. Montana law should be controlling and it is unnecessary to look as the district court did, to federal court cases to reach its conclusions.

MEPA does not provide for a remedy through injunction. The case involves the review of a subdivision, the sanitation provisions of the Subdivision Act do not provide for injunctive relief. Here no administrative hearing was required to be conducted by the Department. This is not a "contested case" as defined by the Montana Administrative Procedure Act, § 82-4201 et seq., R.C.M. 1947. While § 82-4216, R.C.M. 1947, provides for judicial review of contested cases, that section is not applicable to the circumstances of the instant case.

In Leschi Improvement Council v. Washington State Hwy. Comm'n, 84 Wash. 2d 271, 525 P.2d 774, 786, Judge Rosellini, in his dissent, stated what I feel our position should be on this question when he noted:

It is my opinion that this court is neither authorized by statute nor equipped by education, experience or native endowment to review the "adequacy" of a document so dependent upon expertise as an environmental impact statement. We can look to see if serious consideration is given to all matters set forth in the statute, but the decision whether the consideration given is "adequate" belongs with some other agency of government. I think the legislature intended that the Department of Ecology should have the responsibility for such decisions. I am satisfied it did not intend to rest it in the courts. Had it expressly done so, I would expect the court to view it as an unconstitutional attempt to impose upon the court a nonjudicial function.

I would deny injunctive relief.

Mr. Justice Wesley Castles dissenting:

I dissent.I concur in Justice John Conway Harrison's dissent on the third issue. I also dissent on the court's ruling on Issue No. 2 as to the legality of the environmental impact statement. The majority limits its consideration to whether the Department sufficiently detailed the environmental factors. Then it goes on to discuss a nebulous proposition that mere transmittal of comments adverse to the proposal is insufficient. While the opinion concludes that "technical perfection" is not required, it leaves me wondering what is required.