Hillcrest Natural Area Found., Inc. v. Mont. Dep't of Envtl. Quality
| Decision Date | 13 December 2022 |
| Docket Number | DA 22-0142 |
| Parties | HILLCREST NATURAL AREA FOUNDATION, INC., Joel E. Guthals, Ann M. Guthals, Marc Vischer, Ellen Knight, Ross Waples, and Virginia Waples, Petitioners and Appellants, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent and Appellee, and The City of Billings, Respondent, Intervenor, and Appellee. |
| Court | Montana Supreme Court |
For Appellants: Trent M. Gardner, Kyle W. Nelson, Katherine B. DeLong, Goetz, Geddes & Gardner, P.C., Bozeman, Montana
For Appellee Department of Environmental Quality: Nicholas A. Whitaker, Edward Hayes, Department of Environmental Quality, Helena, Montana
For Appellee City of Billings: Brianne C. McClafferty, Matthew H. Dolphay, Holland and Hart, LLP, Billings, Montana
¶1 Hillcrest Natural Area Foundation, Inc. and several of its individual members appeal the Thirteenth Judicial District Court's decision to affirm the Montana Department of Environmental Quality's (DEQ) issuance of a solid waste management system (SWMS) license to the City of Billings for future expansion of its Regional Landfill. Hillcrest raises three issues on appeal:
Finding adequate support in the District Court record, we conclude that DEQ did not violate the law, that it reasonably interpreted its own regulations, and that it considered relevant factors when it granted the SWMS license. We affirm.
¶2 In 2015, the City applied to DEQ to amend its existing SWMS license to include the proposed expansion area of its Class II facility, the Billings Regional Landfill. A Class II facility can control the "storage, treatment, recycling, recovery, and/or disposal of Groups II, III, and IV solid wastes." Class II facilities require the strictest and most protective features to protect human health and the environment.
¶3 DEQ issued the City's existing SWMS license in 1978 to include 421 acres of City property. The proposed expansion area would increase the City's SWMS license coverage to encompass 350 contiguous acres of City-owned property located just south of the Regional Landfill. The Regional Landfill is located about 2,000 feet south of the Yellowstone River. The City does not anticipate needing the expansion for another forty to seventy-five years and expects to begin construction in twenty to twenty-five years.
¶4 The City identified fourteen wetlands interspersed over the proposed expansion area. Occupying 2.41 acres, these wetlands connect with twenty-two "first-order intermittent streams." The twenty-two first-order streams flow into one "large second-order intermittent stream" located in the center of the proposed expansion area. The second-order stream flows into Blue Creek; Blue Creek connects to the Yellowstone River.
¶5 The City admitted in its application that the construction of "landfill units and associated features of the proposed expansion area would remove the 2.41 acres of existing wetlands identified on site." The City acknowledged that these wetlands and the associated streams "have direct contact to Blue Creek, which flows into the Yellowstone River via the second order drainage." Therefore, the City noted that its proposed expansion area, in addition to DEQ approval, likely also would require a permit from the U.S. Army Corps of Engineers pursuant to Section 404 of the Clean Water Act (CWA) because the Yellowstone River is a designated "traditional navigable water." DEQ approved the City's application and issued it an updated SWMS license, but it conditioned the City's ability to move forward on first obtaining a Section 404 permit from the Corps of Engineers "prior to any wetland disturbance." DEQ also required that the City construct "mitigated wetlands" before expanding to help offset the anticipated loss of the fourteen wetlands.
¶6 Prior to granting the license, DEQ reviewed the City's application under the Montana Environmental Policy Act (MEPA) for potential environmental impacts. DEQ drafted an environmental assessment (EA) and took extended public comment, including a public hearing. Among the public commenters was Hillcrest. Hillcrest owns Hillcrest Natural Area, a park open to the public that lies adjacent to the proposed expansion area. Hillcrest raised concerns regarding the proximity of the proposed expansion area in relation to the Natural Area's hiking trails, commenting that because the landfill operations would be visible from the Natural Area, it would ruin the aesthetic of the hiking trails and violate certain restrictive covenants. DEQ responded to this comment, explaining that no land use restrictions conflicted with the proposed expansion area.
¶7 Hillcrest, along with several of its members, challenged DEQ's approval of the City's application in District Court. The City intervened. The parties filed cross-motions for summary judgment. After hearing oral argument on the matter, the District Court granted summary judgment to DEQ and the City. Hillcrest appeals.
¶8 "We review a district court's grant of summary judgment de novo," applying the criteria set forth in M. R. Civ. P. 56(c). Upper Mo. Waterkeeper v. Mont. Dep't of Envtl. Quality , 2019 MT 81, ¶ 12, 395 Mont. 263, 438 P.3d 792.
¶9 "We review an informal agency decision—one not classified as a contested case under the Montana Administrative Procedure Act—to determine whether the decision was arbitrary, capricious, unlawful, or not supported by substantial evidence." Upper Mo. Waterkeeper , ¶ 14 (citing Clark Fork Coal. v. Mont. Dep't of Envtl. Quality , 2008 MT 407, ¶ 21, 347 Mont. 197, 197 P.3d 482 ). Review under this standard "focuses on whether the agency action is (1) unlawful, or (2) arbitrary and capricious." Upper Mo. Waterkeeper , ¶ 14 (citing North Fork Pres. Ass'n v. Dep't of State Lands , 238 Mont. 451, 459, 778 P.2d 862, 867 (1989) ). A decision is not arbitrary or capricious when it relies on "consistent, rational, and well-supported agency decision-making." Mont. Envtl. Info. Ctr. v. Mont. Dep't of Envtl. Quality , 2019 MT 213, ¶ 26, 397 Mont. 161, 451 P.3d 493. A well-supported decision is one that considers "relevant data" and can articulate "a satisfactory explanation for... action, including a rational connection between the facts found and the choice made." Clark Fork Coal. , ¶ 47.
¶10 We discuss additional standards of review as applicable to the separate issues that Hillcrest raises.
¶11 Hillcrest appeals the District Court's order on three of the challenges it brought in the action. First, Hillcrest argues that DEQ's approval of the City's SWMS license application violated the Solid Waste Management Act's (SWMA) regulations because the City did not submit certain required demonstrations prior to approval. Second, Hillcrest argues that DEQ unreasonably determined that an EIS was not necessary to its environmental impact review in violation of Admin. R. M. 17.4.608(1)(g). Third, Hillcrest argues that the proposed expansion area violates § 75-10-212(2)(c), MCA, and that the District Court erred by not considering this statute when it granted summary judgment to DEQ and the City.
¶12 Issue One: Did the District Court err by concluding that DEQ complied with Admin. R. M. 17.50.1005 when it approved the City's license application?
¶13 Under SWMA, DEQ has the authority to regulate the operation, design, and location of SWMSs. Section 75-10-204, MCA. Pursuant to Admin. R. M. 17.50.1005(1): "a lateral expansion of an existing Class II ... landfill unit, may not be located in wetlands, unless the owner or operator submits to the department for approval [certain specified] demonstrations[.]" Among these demonstrations, Admin. R. M. 17.50.1005(1)(a) and (d) require the applicant to rebut the presumption that a practicable alternative to the proposed location exists that does not endanger wetlands and to show the steps taken by the applicant to mitigate wetland destruction. Admin. R. M. 17.50.1005(1)(a) and (d) are applicable to the extent required by the CWA or "applicable Montana wetlands laws."
¶14 DEQ determined that the 2.41 acres of affected wetlands are under the jurisdiction of the CWA. Based on this determination, DEQ required the City to obtain a Section 404 permit prior to proceeding with construction or any wetland disturbance. DEQ concluded that because obtaining a Section 404 permit requires the City to demonstrate no available practicable alternative to its chosen location and the steps taken to minimize adverse effects on wetlands, conditioning license approval on first obtaining a Section 404 permit satisfied the requirement for demonstrations in Admin. R. M. 7.50.1005.
¶15 We give "great weight" to an agency's understanding of its own rule because agencies possess "specific, technical, and scientific knowledge surpassing that of the [courts]." Mont. Envtl. Info. Ctr. , ¶¶ 23, 26. When evaluating an agency's interpretation of its own rule, courts consider whether the agency's interpretation is within the "range of reasonable interpretation." Clark Fork Coal., ¶ 20.
¶16 The CWA regulates the discharge of "dredged" or "fill" material into waters of the United States, including wetlands.1 33 U.S.C. §§ 1341, 1344. Section 404 of the CWA generally requires a permit when the discharge of such material will impact "navigable waters" of the United States. 33 U.S.C. § 1344(a), (e)(1). Section 404 permits are granted by the Corps of Engineers. 33 U.S.C. § 1344(a), (d). To obtain a Section 404 permit, applicants must demonstrate...
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