Jefferson County v. Dep't of Envtl. Quality

• Decision Date: 27 October 2011
• Docket Number: No. DA 11–0048.,DA 11–0048.
• Citation: 2011 MT 265,264 P.3d 715,362 Mont. 311
• Parties: JEFFERSON COUNTY, a political subdivision of the State of Montana, By and Through its BOARD OF COMMISSIONERS, Petitioner and Appellee,v.DEPARTMENT OF ENVIRONMENTAL QUALITY, an agency of the State of Montana, Respondent and Appellant,andNorthwestern Corp, d/b/a Northwestern Energy, Intervenor and Appellant.
• Court: Montana Supreme Court

362 Mont. 311

264 P.3d 715

2011 MT 265

JEFFERSON COUNTY, a political subdivision of the State of Montana, By and Through its BOARD OF COMMISSIONERS, Petitioner and Appellee,

v.DEPARTMENT OF ENVIRONMENTAL QUALITY, an agency of the State of Montana, Respondent and Appellant,andNorthwestern Corp, d/b/a Northwestern Energy, Intervenor and Appellant.

No. DA 11–0048.

Supreme Court of Montana.

Argued and Submitted Aug. 2, 2011.Decided Oct. 27, 2011.

For Appellant: Ed Hayes (argued), John F. North; Special Assistant Attorneys General; Helena, Montana (attorneys for Department of Environmental Quality), John K. Tabaracci (argued), Robert Erickson; Sullivan, Tabaracci & Rhoades, P.C.; Missoula, Montana (attorneys for NorthWestern Energy).For Appellee: Mathew J. Johnson; Jefferson County Attorney; Boulder, Montana, Peter G. Scott (argued); Gough, Shanahan, Johnson & Waterman, PLLP; Helena, Montana.Justice BETH BAKER delivered the Opinion of the Court.

[362 Mont. 312] ¶ 1 The Montana Department of Environmental Quality (DEQ) and Intervenor NorthWestern Energy (NorthWestern) appeal the Fifth Judicial District Court's judgment in favor of Petitioner Jefferson County. Appellants argue the District Court erred in issuing a writ of mandamus, granting summary judgment to Jefferson County, and enjoining DEQ from releasing a draft environmental impact statement. We reverse the District Court and remand with instructions to dismiss this action. We restate the issues as follows:

¶ 2 1. Whether the District Court properly granted a writ of mandamus requiring DEQ to consult with the Jefferson County Board of Commissioners under § 75–1–201(1)(c), MCA, before issuing a draft environmental impact statement on the Mountain States Transmission Intertie.

¶ 3 2. Whether Jefferson County's action against DEQ is premature.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 To meet increasing demands for electricity in the western United States, NorthWestern proposed constructing an electric transmission line running from approximately five miles southeast of Townsend, Montana, to a midpoint station near Shoshone, Idaho. The project, known as Mountain States Transmission Intertie (MSTI), would affect six counties in Montana and require the participation of numerous state agencies with overlapping jurisdiction concerning various aspects of the project. In order to commence construction of the MSTI, NorthWestern must first file an application and receive a certificate under the Major Facilities Siting Act (MFSA). DEQ and the United States Bureau of Land Management (BLM) are the lead agencies charged with review of the project. Under state law, DEQ decides whether to issue a certificate and, if issued, determines the route of the MSTI.

¶ 5 Before submitting its application, NorthWestern held public meetings in order to identify potentially affected resources, suggest routes, and discuss mitigation of any adverse effects of the MSTI. NorthWestern representatives also attended a meeting of the Jefferson County Board of Commissioners on June 12, 2007, at which they provided a presentation on the MSTI including a map showing possible routes. NorthWestern invited the commissioners to raise concerns or issues involving the alternative routes. NorthWestern attended a second meeting on June 17, 2008, and provided updated information and received further input from Jefferson County.

¶ 6 On June 30, 2008, NorthWestern submitted its application for a certificate from DEQ under the MFSA. NorthWestern incorporated Jefferson County's comments into its application. NorthWestern's application has been available for public viewing on DEQ's website since July 8, 2008. NorthWestern also mailed newsletters to individuals and other parties, including Jefferson County, related to the MSTI.

¶ 7 To determine the extent of their environmental review, DEQ and BLM sent scoping letters to interested parties on August 8, 2008, indicating NorthWestern had proposed three alternative routes and additional alternatives might be developed during the environmental review. DEQ sent these letters to, among others, Kenneth Weber, Jefferson County Commission Chair; Tom Lythgoe, Jefferson County Commission Vice Chair; and Chuck Notbohm, Jefferson County Commissioner. The letters encouraged recipients to offer written comments on the route alternatives, to raise issues that should be considered, and to provide possible mitigation measures and any other relevant information. The recipients also were invited to attend public scoping meetings in Three Forks, Butte, and Dillon.

¶ 8 DEQ and BLM facilitated a separate scoping process for governmental agencies by sending letters dated August 20, 2008, to the Jefferson County Board of Commissioners, as well as to commissioners in the other five counties through which the line might pass. Those letters stated the purpose of the scoping process was to encourage involvement by interested stakeholders in a manner that allowed for early identification and resolution of environmental issues. The letters included a map depicting the various alternative routes identified in NorthWestern's application. Recipients were invited to attend scoping meetings for governmental agencies to be held on the same dates and in the same locations as the general public meetings but several hours before them.

¶ 9 Jefferson County Commission Chair Weber attended both the public scoping meeting and the agency scoping meeting in Dillon on September 11, 2008. The Jefferson County Commissioners then discussed the MSTI in three separate meetings on September 16, September 30, and October 7, 2008. In all three meetings, Weber noted the October 10 deadline for submitting comments to DEQ was fast approaching. On October 10, 2008, the Jefferson County Commissioners submitted their comments to DEQ by electronic mail. In the letter, the commissioners acknowledged the benefits of the MSTI but stated they “should be brought forward in a manner that impacts private property in the least amount possible.” The commissioners indicated this could be done by taking Jefferson County's zoning ordinances into consideration. The commissioners also requested DEQ give preference to the third alternative route proposed by NorthWestern because it would impact the lowest number of current and future homes in Jefferson County.

[362 Mont. 315] ¶ 10 In the course of preparing a draft of the Environmental Impact Statement (EIS), DEQ obtained Jefferson County's land use plans. DEQ representatives contacted Jefferson County to inquire about any additional land use and zoning regulations. DEQ reviewed the documents and determined the MSTI as proposed complied with Jefferson County's land use plans.

¶ 11 DEQ did not hear from Jefferson County again until it received a letter dated April 22, 2010. The commissioners informed DEQ that the County was invoking its “coordination authority” under state and federal law. The commissioners cited eleven federal laws in which the word “coordinate” appears. The only state law the commissioners cited was § 75–1–104, MCA (2009),¹ which states the Montana Environmental Policy Act's (MEPA's) provisions do not affect specific statutory obligations of an agency of the state to coordinate or consult with any local government. Jefferson County also indicated it was in the process of delineating a land-use policy and it expected DEQ and BLM to comply with the policy in determining the MSTI route. Jefferson County did not cite the consultation requirement in § 75–1–201(1)(c), MCA, on which it rests its claim in this appeal.

¶ 12 DEQ responded on April 30, 2010, explaining the agency had consulted and coordinated with Jefferson County. DEQ detailed the multiple times DEQ, BLM, and NorthWestern had met with Jefferson County officials. DEQ also stated the commissioners' request would be difficult to accommodate as it came at the eleventh hour, sixteen months after the comment period and just weeks before DEQ and BLM were expected to finalize and release the Draft EIS.

¶ 13 Jefferson County and DEQ exchanged several letters between April and May 2010 concerning the MSTI. On May 18, 2010, Jefferson County filed a Petition for Writ of Mandamus and Injunctive Relief against DEQ. Jefferson County sought an order requiring DEQ to comply with MFSA, MEPA, the Federal Land Policy and Management Act, and the National Environmental Policy Act. Jefferson County further requested DEQ be enjoined from “planning, drafting, studying and releasing” a Draft EIS. DEQ met with the commissioners on May 27, and with Commissioner Tom Lythgoe on June 3, 2010, to discuss and provide additional information on the MSTI.

¶ 14 The District Court granted NorthWestern's motion to intervene on June 16, 2010, and held evidentiary hearings on June 21, July 7, and July 28, 2010. Although the presentation of evidence still had not concluded, Jefferson County filed a motion for partial summary judgment for declaratory and injunctive relief on August 18, 2010. DEQ and NorthWestern opposed the motion. On September 8, 2010, the District Court ruled in favor of Jefferson County after determining DEQ had not satisfied its duty to consult with Jefferson County under MEPA and enjoined DEQ from releasing the Draft EIS until it had done so. The County filed notice of entry of judgment on December 22, 2010.

¶ 15 On January 11, 2011, Jefferson County filed a motion seeking “additional relief in the form of an order requiring DEQ to establish a reasonable budget so that Jefferson County can engage an expert to assist the County in formulating its input to the Draft EIS.” Jefferson County requested “an initial budget of $30,000 to pay an expert selected by Jefferson County[.]” The District Court had not ruled on the motion when DEQ and NorthWestern filed notices of appeal on January 25 and February 4, 2011, respectively.

STANDARD OF REVIEW

¶ 16 The issuance of a writ of mandamus is a legal conclusion this Court revie...