Montana Wilderness Ass'n v. Board of Health and Environmental Sciences
| Decision Date | 30 December 1976 |
| Docket Number | No. 13179,13179 |
| Citation | 559 P.2d 1157,171 Mont. 477 |
| Parties | , 7 Envtl. L. Rep. 20,170 The MONTANA WILDERNESS ASSOCIATION, Gallatin Sportsmen's Association, Inc., Plaintiffs and Respondents, v. The BOARD OF HEALTH AND ENVIRONMENTAL SCIENCES of the State of Montana and the Department of Health and Environmental Sciences of the State of Montana, Defendants and Appellants, and Beaver Creek South, Inc., a corporation, Intervenor and Appellant. |
| Court | Montana Supreme Court |
G. Steven Brown, argued, Helena, for defendants and appellants.
Dzivi, Conklin, Johnson & Nybo, William P. Conklin, argued, Great Falls, for intervenor and appellant.
James H. Goetz, argued, Bozeman, for plaintiffs and respondents.
Steven J. Perlmutter, argued, Richard M. Weddle, Helena, Donald R. Marble, Chester, Anderson, Symmes, Forbes, Peete & Brown, Billings, for amicus curiae.
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.
The instant appeal is on rehearing and the opinion previously promulgated on July 22, 1976, is withdrawn.
Plaintiffs in the district court were the Montana Wilderness Association, a Montana nonprofit corporation dedicated 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.
Defendant 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 and has been made a party to the judgment. The Montana Environmental Quality Council, a statutory court as agency, appeared in the district court as amicus curiae. The Montana Department of Community Affairs appears as amicus curiae. Other amicus curiae appeared by brief.
Beaver Creek South owns a tract of approximately 160 acres adjacent to U.S. Highway 191 in the Gallatin Valley seven miles south of Big Sky of Montana. Early in 1973 Beaver Creek submitted to the Bozeman City-County Planning Board a subdivision plat for approval by that board and the Gallatin County Commissioners, contemplating development of 95 acres of that tract as a planned unit development in two phases. This submission and approval was required by sections 11-3859 through 11-3876, R.C.M.1947, known as the Montana Subdivision and Platting Act. After publication of notice a public hearing was held on October 11, 1973 where the only public reaction was from the State Department of Fish and Game, expressing concern about possible infringement of wildlife habitat along the highway. Again, on January 10, 1974, a second public hearing was held after notice concerning a second phase of the development was given. At this second hearing, no public comments were received. Approval of the subdivision was recommended and carried out, subject to approval of water and sewer systems by the Montana Department of Health and Environmental Sciences as required by sections 69-4801 through 69-4827, R.C.M.1947. The application for this approval had been made by the owner early in 1973 also. At the local level, neither plaintiff appeared at the public hearings.
After several months of conferences and tests the Department issued a draft environmental impact statement on April 8, 1974. The draft statement was issued purportedly because of the requirements of section 69-6504(b)(3), R.C.M.1947, the Montana Environmental Policy Act (MEPA). A final impact statement was issued on June 26, 1974.
On July 26, 1974, the Department issued and delivered to Beaver Creek its certificate removing the sanitary restrictions on the plat.
On that same day, July 26, 1974, after the issuance of the certificate, the Department was served with an order to show cause and a temporary restraining order issued on the basis of this action filed by plaintiffs on July 25, 1974.
Even though it had already lifted the sanitary restrictions before service of the temporary restraining order, the Department chose on July 29, 1974 to rescind and invalidate its earlier certificate. Following this a series of procedural matters were had and the Department undertook to revise its Environmental Impact statement. At this point, the landowner, Beaver Creek, was not a party to the proceedings. It was allowed to intervene in September, 1974. The Gallatin County Board of County Commissioners was never a party to the action.
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 use 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 again 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 section 69-6504(b)(1), R.C.M.1947.
(2) The Revised EIS does not include a detailed statement of alternative to the proposed action nor were such alternatives studied, developed or described to the fullest extent possible as required by section 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 section 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 section 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 single determinative issue here is the function of the Department in land use decisions such as is involved in this case; that is, a simple subdivision plat. Other ancillary issues as to 'standing' of the plaintiff associations to sue and the right to injunctive relief have been briefed and argued but need not be determined here because of our view of the law of Montana. It is seen the the district court findings and judgment are premised on the MEPA being the ruling statute; and that the Department of Health in required to file an impact statement; and, further, that the Department has the final land use decision over and above the water supply, sewage and solid waste disposal issues. Although the district court did not specifically discuss this problem, it can be the only basis for its decision.
In analyzing the law of Montana, three acts of the Montana legislature are involved. The three acts which must be looked to and harmonized are:
(1) The 1967 Subdivision Sanitation Act, sections 69-5001 through 5009, R.C.M.1947.
This Act prohibits the recording of any subdivision plat until the Department issues its certificate removing sanitary restrictions from the plat. It is primarily a public health measure and is designed to protect the quality and potability of public water supplies.
(2) The 1971 Montana Environmental Policy Act, sections 69-6501 through 6518, R.C.M.1947. This Act declares as its...
To continue reading
Request your trial
-
Larson v. State
... ... , and Jean Price, Individual Electors, and Montana Democratic Party, Plaintiffs and Appellees, v ... enacted for the promotion of public health, safety, and general welfare" to effect its ... of teacher’s right to have open school board termination hearing upon waiver of right to ... Wilderness Ass’n v. Bd. of Health & Envtl. Scis. , 171 ... agency compliance with statutory environmental standards for subdivision plat approval); State ... ...
-
Park Cnty. Envtl. Council v. Mont. Dep't of Envtl. Quality
... ... P.3d 288 2020 MT 303 PARK COUNTY ENVIRONMENTAL COUNCIL and Greater Yellowstone Coalition, iffs and Appellees, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY and Lucky ... just outside the Absaroka-Beartooth Wilderness. It is a mere 15 miles north of Yellowstone ... property, and seeking their safety, health and happiness in all lawful ways." Mont. Const., ... Board of Health & Envtl. Sciences , 171 Mont. 477, ... ...
-
Bitterrooters for Planning, Inc. v. Mont. Dep't of Envtl. Quality
... ... Plaintiffs and Appellees, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, an agency of ... 460 impact vegetation, aesthetics, human health and safety, industrial and commercial activities, ... , the Legislature has directed the Montana Board of Environmental Review (BER) to promulgate rules ... to and quality of recreational and wilderness activities; local and state tax base and tax ... Montana Bd. of Health & Env'tl Sciences , 171 Mont. 477, 559 P.2d 1157 (1976). In that ... ...
-
Kadillak v. Anaconda Co.
... ... No. 14348 ... Supreme Court of Montana ... Submitted June 15, 1979 ... Decided Oct ... of Health", for defendants and respondents ... \xC2" ... government with possible adverse environmental effects requiring an impact statement under the ... in conformity with a permit granted by the Board of Land Commissioners. Section 82-4-335, MCA ... was stated in the dissent to Montana Wilderness Ass'n v. Bd. of Health and Environmental Sciences ... ...