Northern Plains Resource Council v. Board of Natural Resources and Conservation, 14215

Decision Date10 April 1979
Docket NumberNo. 14215,14215
PartiesNORTHERN PLAINS RESOURCE COUNCIL and Northern Cheyenne Tribe, Inc., Petitioners and Respondents, v. BOARD OF NATURAL RESOURCES AND CONSERVATION et al., Respondents and Appellants.
CourtMontana Supreme Court

W. H. Bellingham argued, Billings, John L. Peterson argued, Butte, Richard J. Andriolo argued, Bozeman, Maurice F. Hennessey argued, Butte, C. W. Leaphart, Jr., argued, Helena, Neil S. Keefer, Billings, John W. Ross, Butte, for respondents and appellants.

Leo C. Graybill, Jr. and Gregory H. Warner, argued, Great Falls, for petitioners and respondents.

Benjamin W. Hilley argued, Great Falls, D. Patrick McKittrick, Great Falls, for amicus curiae.

HARRISON, Justice.

Pursuant to the Montana Major Facility Siting Act, section 70-801 et seq., R.C.M.1947, now section 75-20-101 et seq. MCA (hereinafter "Siting Act"), the Board of Natural Resources and Conservation (hereinafter "Board of Natural Resources"), on July 22, 1976, granted to the Montana Power Company, Puget Sound Power and Light Company, Portland General Electric Company, the Washington Water Power Company, and Pacific Power and Light Company (hereinafter "Utilities"), a certificate of environmental compatibility and public need for the construction of the facility known as Colstrip Units 3 and 4. Respondents and cross-appellants appealed this decision to the First Judicial District Court, Lewis and Clark County, under the provisions of the Montana Administrative Procedure Act, section 82-4201 et seq., R.C.M.1947, now section 2-4-101 et seq. MCA (hereinafter "MAPA"). The District Court reversed and remanded the matter to the Board of Natural Resources for rehearing. From this order both appellants/cross-respondents and respondents/cross-appellants appeal to this Court. The two appeals have been consolidated for hearing and decision.

To properly indicate the monumental proportions this matter has taken, we believe it is necessary to set forth its background in some detail as was done by the Board of Natural Resources in its findings of fact, conclusions of law, opinion, decision, order and recommendations. This also will help to illuminate the issues on appeal and place this controversy in perspective.

Pursuant to the terms of the Siting Act, on June 6, 1973, the Utilities filed with the Montana Department of Natural Resources and Conservation (hereinafter "Department of Natural Resources") an application for a certificate of environmental compatibility and public need for the proposed Colstrip Units 3 and 4. Filed contemporaneously was a petition for waiver of time requirements as set forth in section 70-806, R.C.M.1947, now section 75-20-211 MCA, and a filing fee of $1,232,930. The Utilities also filed with the Department of Natural Resources their environmental analysis of the proposed project and related facilities entitled "Colstrip Generation and Transmission Project." This environmental analysis was dated November 1973 and was prepared by the environmental systems department of Westinghouse Electric Corporation.

The Department of Natural Resources, pursuant to sections 70-807 and 70-816, R.C.M.1947, now sections 75-20-216 and 75-20-503 MCA, of the Siting Act, conducted an extensive study over a period of 600 days of the application and issued its draft environmental impact statement in November 1974, recommending against the granting of the application. Subsequent to issuing the draft environmental impact statement, the Department of Natural Resources conducted a series of public meetings to gain input from the public regarding the proposed project and the analysis thereof contained in the draft environmental impact statement. On or about January 21, 1975, the Department of Natural Resources released its final environmental impact statement on the proposed project containing its recommendations against granting the application and transmitted the same to the Board of Natural Resources.

The Board of Natural Resources, on receipt of the recommendations from the Department of Natural Resources and after due and deliberate consideration, issued an order dated January 24, 1975. In its order the Board of Natural Resources deemed that the matter before it, i. e., the application for a certificate of environmental compatibility and public need for the proposed Colstrip Units 3 and 4, would be considered a contested case as defined in MAPA, section 82-4201 et seq., R.C.M.1947, now section 2-4-101 et seq. MCA. Subsequent to issuing this order, the Board of Natural Resources issued orders on February 7, 1975 and February 14, 1975, pertaining to matters of procedure to be followed, particularly referring to the methods of discovery and determining the burden of proof.

The Board of Natural Resources further ordered that the hearing would commence on March 10, 1975, at Bozeman, Montana. Notice of the time and place of the hearing was given to all parties and published in daily newspapers throughout Montana to inform the public. On March 10, 1975, the hearing began, at which time motions were presented to the Board of Natural Resources by the opponents of the application to continue the hearing until May 13, 1975, to afford the parties time to complete discovery procedures. Also, objections were made to a member of the Board of Natural Resources serving as hearings examiner. On April 17, 1975, the Board of Natural Resources continued the hearing until April 21, 1975, and on April 10, 1975, Carl M. Davis was appointed by the Board as hearings examiner to preside over the public hearing phase of the proceedings.

Following a pretrial conference with the parties, the hearings examiner, by order dated April 15, 1975, directed the proceedings to reconvene on April 21, 1975, at Helena, Montana.

By letter dated April 10, 1975, the director of the Department of Health and Environmental Sciences (hereinafter "Department of Health") notified the Board of Natural Resources that the Department of Health certified that the proposed facility will not violate state and federally established water quality standards. It did not certify that the proposed facility will not violate state and federally established air quality standards and implementation plans.

On April 18, 1975, the Northern Plains Resource Council filed Cause No. 38934 in the District Court of Lewis and Clark County. A writ of prohibition was served upon the Board of Natural Resources and the hearings examiner, directing them to desist and refrain from any further proceedings until further order of the court and further directed them to appear in court on April 22, 1975. Following the hearing the court, on April 29, 1975, quashed the writ of prohibition, thereby allowing the hearing to continue. The court further ordered the Board of Health and Environmental Sciences (hereinafter "Board of Health") to hold a hearing to determine whether the certificate required by section 70-810(1)(h), R.C.M.1947, now section 75-20-301(2)(h) MCA, should be issued.

The hearing was reconvened in Helena on May 5, 1975. Motions by the opponents for further continuances were presented and granted by the hearings examiner, continuing the hearings until May 20, 1975.

On May 9, 1975, the Northern Cheyenne Tribe, Inc., filed an application for a writ of prohibition in the District Court of Lewis and Clark County, Cause No. 39000. This matter was heard by the court on May 19, 1975, and judgment was entered on the same date dismissing the application.

The public hearing before the Board of Natural Resources formally began on May 20, 1975, and continued until June 5, 1975, at which time the hearing before the Board of Health was commenced with Carl M. Davis serving as hearings examiner. The hearing before the Board of Health consumed a total of 53 hearing days and concluded on September 15, 1975 with 53 witnesses having testified. After studying the testimony and exhibits, and the findings of fact submitted by the parties, the Board of Health heard oral arguments by counsel, visited the site of the proposed facilities and rendered its decision on November 21, 1975, issuing its conditional certification, pursuant to section 70-810(1)(h), R.C.M.1947, now section 75-20-301(2)(h) MCA, of the Siting Act.

On July 23, 1975, at the conclusion of Utilities' case-in-chief in the Board of Health hearing, the opponents to the application moved to dismiss the Utilities' proceedings for certification, together with a motion to continue further hearings until the Board of Health ruled upon the motions. The motion to continue the Board of Health hearing was denied on July 24, 1975. The opponents to the application filed in the District Court of the First Judicial District, Cause No. 39228, an application for a writ of prohibition or mandate commanding the Board of Health and the hearings examiner to cease and refrain from further proceedings until further order of the court or to show cause to the court why the Board of Health should not be permanently restrained from further proceedings until the Board had ruled upon opponents' motion to dismiss.

On July 25, 1975, this Court granted the Utilities' application for a writ of supervisory control and directed the District Court to either withdraw its writ of prohibition or, in the alternative, to appear before the Supreme Court on July 28, 1975. On July 28, 1975, this Court heard the matter, and at the conclusion of the hearing directed that the writ of prohibition be set aside and that the hearings proceed.

The hearings examiner for the Board of Natural Resources issued an order dated December 10, 1975, reconvening the Board of Natural Resources' hearing on January 19, 1976, at Helena. In addition he set forth certain procedures to be followed by all parties to the proceedings regarding the presentation of direct testimony and cross-examination. Notice of the time and place of the...

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