Park Cnty. Envtl. Council v. Mont. Dep't of Envtl. Quality

• Decision Date: 08 December 2020
• Docket Number: DA 19-0492
• Citation: 2020 MT 303,477 P.3d 288,402 Mont. 168
• Court: Montana Supreme Court
• Parties: PARK COUNTY ENVIRONMENTAL COUNCIL and Greater Yellowstone Coalition, Plaintiffs and Appellees, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY and Lucky Minerals, Inc., Defendants and Appellants, and State of Montana, by and through the Office of the Attorney General, Intervenor and Appellant.

402 Mont. 168

477 P.3d 288

2020 MT 303

PARK COUNTY ENVIRONMENTAL COUNCIL and Greater Yellowstone Coalition, Plaintiffs and Appellees,

v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY and Lucky Minerals, Inc., Defendants and Appellants,andState of Montana, by and through the Office of the Attorney General, Intervenor and Appellant.

DA 19-0492

Supreme Court of Montana.

Argued and Submitted: September 30, 2020

Decided: December 8, 2020

For Appellant Department of Environmental Quality: Edward Hayes (argued), Special Assistant Attorney General, Department of Environmental Quality, Helena, Montana

For Appellant Lucky Minerals, Inc.: KD Feeback (argued), Toole & Feeback, PLLC, Lincoln, Montana

For Intervenor and Appellant State of Montana: Timothy C. Fox, Montana Attorney General, Matthew T. Cochenour, Acting Solicitor General, Rob Cameron (argued), Deputy Attorney General, Jeremiah Langston, Assistant Attorney General, Helena, Montana

For Appellees: Jenny K. Harbine (argued), Earthjustice, Bozeman, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Montana Department of Environmental Quality, Lucky Minerals, Inc., and intervenor Montana Attorney General Tim Fox appeal from a May 23, 2018 ruling granting summary judgment to Park County Environmental Council and Greater Yellowstone Coalition and an April 12, 2019 order of vacatur of the contested exploration license. We affirm in part, reverse in part, and remand to the Montana Department of Environmental Quality to conduct additional analysis consistent with this Opinion.

¶2 We address the following issues on appeal:

Issue One: Whether Plaintiffs have standing to challenge the Department of Environmental Quality's issuance of an exploration permit to Lucky Minerals, Inc.

Issue Two: Whether the District Court erred in determining that the Department of Environmental Quality was required to evaluate the environmental impacts of potential full-scale mining on federal lands.

Issue Three: Whether the District Court erred in determining that the Department of Environmental Quality had not conducted an adequate analysis of the impacts of expected road improvements.

Issue Four: Whether the District Court erred in concluding that the Department of Environmental Quality failed to take a "hard look" at water quality issues.

Issue Five: Whether the District Court erred in determining that the Department of Environmental Quality failed to conduct a sufficient analysis of alternatives to exploration approval under the Montana Environmental Policy Act.

Issue Six: Whether the District Court erred in determining that § 75-1-201(6)(c) and (d), MCA, which bars equitable remedies for a Montana Environmental Policy Act violation, is unconstitutional under Article II, Section 3, and Article IX, Section 1, of the Montana Constitution.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Emigrant Gulch lies within of the Greater Yellowstone Ecosystem and is located just outside the Absaroka-Beartooth Wilderness. It is a mere 15 miles north of Yellowstone National Park and its watershed flows into the Yellowstone River, a world-renowned trout fishery. The Absaroka Mountains surrounding Emigrant Gulch are home to bighorn sheep, elk, deer, moose, marmots, coyotes, black bears, and wolves. Emigrant Gulch is within occupied grizzly bear and wolverine habitat as well as Canada lynx designated critical habitat. Emigrant Peak, the most prominent of the mountains flanking Emigrant Gulch, is a popular year-round recreation destination. At the mouth of Emigrant Gulch, residents and visitors have enjoyed the natural mineral pools of Chico Hot Springs for over 100 years. The region's natural beauty is also an important economic driver, supporting tourism that employs large numbers of Park County residents.

¶4 On February 17, 2015, Lucky Minerals, Inc. (Lucky) submitted an exploration license application seeking authorization under the Metal Mine Reclamation Act (MMRA), §§ 82-4-331-32, MCA, to conduct exploration activities within its privately-owned patented St. Julian mine claim block in Emigrant Gulch. Results from the proposed exploration would be used to model subsurface geology and associated mineralization. The St. Julian mine claim block is surrounded by the Custer Gallatin National Forest. Though the original proposal envisioned work on national forest lands, Lucky's revised proposal is for exploration only on its privately-owned patented claims on the St. Julian mine claim block. In its application, Lucky proposed to drill up to 46 holes—expected to average 1,000 feet in depth, with some potentially reaching as deep as 2,000 feet—from 23 drill pads. The work would take place over the course of two field seasons, each anticipated to last from mid-July to mid-October. Lucky proposed using two drills running two ten-hour shifts per day, the night shift relying on light sources similar to those used by highway construction crews.

¶5 To reach Emigrant Gulch, one must traverse a forest service road that has suffered from rockslides and avalanches and is at times comparable to a Jeep trail not travelable by highway vehicles and best approached by ATV. Lucky's proposed exploration is expected to require the clearing of rocks and debris from the existing Forest Service road in order to access the drilling sight with vehicles and heavy equipment.

¶6 Pursuant to the Montana Environmental Policy Act (MEPA), found under Title 75, chapter one, MCA, the Montana Department of Environmental Quality (DEQ) released a draft Environmental Assessment (Draft EA) in response to Lucky's proposal on October 13, 2016. The Draft EA concluded that Lucky's proposed exploration would not result in significant environmental impacts.

¶7 However, the Draft EA did state that Lucky's proposed exploration would lead to an increase in wildlife disturbance, as road improvements intended to allow Lucky's mining equipment and vehicles to access Emigrant Gulch would also provide easier access for hunters, trappers, and others to enter habitat that has long been inaccessible to many. The Draft EA went on to describe the expected disturbance and displacement of grizzly bears and the potential for den abandonment by female wolverines. Scientific studies in the administrative record confirm that increased human presence in remote areas may have negative effects on wolverine and grizzly bear populations.

¶8 Among the more than 3,000 public comments made on the Draft EA, Montana Fish Wildlife & Parks (FWP) commented that the road improvements could "significantly increase[ ] [the] level of disturbance and fragmentation" of a presently "very remote and rarely disturbed" habitat. It warned of "a permanent change to the landscape, with long-term implications" for wildlife populations in the area, especially wolverine, lynx, grizzly bear, elk, deer, and moose. FWP recommended altering the project to avoid road improvements or reclaim/close the road after the project's completion.

¶9 On July 26, 2017, DEQ issued its Final Environmental Assessment (Final EA), maintaining that the project posed no significant environmental, and approved Lucky's proposal with slight modifications. In the Final EA, DEQ responded to FWP's comments regarding road improvements by noting that it had "re-evaluated the impact on wildlife resulting from the proposed road improvements and believes that the draft EA overstated the impacts." The Final EA concluded that the road work "may marginally make access to the area easier for hunters and may marginally increase higher mortality" for wildlife in addition to potentially increasing "the harassment or poaching of wildlife." However, DEQ did not expect the proposal to "materially change [the road's] character of an unimproved forest road."

¶10 The Final EA also outlined DEQ's detailed analysis of groundwater quality in the area. DEQ tested groundwater quality at a number of sites in the area, exhibiting a range of water chemistry values. DEQ determined that "[s]ome of the mineralized geologic materials in the Emigrant Mining District are potentially reactive and may produce acid rock drainage or mobilize metals under near-neutral pH conditions. Some water quality samples within the district reflect the reactive nature of the geology ...." In particular, DEQ found elevated acidity and concentrations of Total Dissolved Solids (TDS) and sulfites in sights tested to the north of the East Fork of Emigrant Creek (East Fork), which drains the proposed exploration area. Though DEQ identified natural acid rock drainage occurring to the north of the East Fork, the agency concluded that the reactivity of that slope was due to a locally intense pyrite alteration that was not reflective of all subsurface materials in the East Fork drainage. The Final EA noted the presence of disseminated sulfides throughout the Emigrant Mining District deposits.

¶11 The Final EA also analyzed DEQ's groundwater testing on the south side of the East Fork, the same slope upon which the proposed exploration would occur. DEQ collected samples from a spring, two seeps, and three boreholes created during exploration conducted in 1971-73, known as the Duval Corporation Boreholes (Duval Boreholes). DEQ found minimal flow of less than five gallons per minute and no water quality standard exceedances at these sites, with relatively neutral pH values ranging from slightly acidic to slightly basic. DEQ concluded that the samples from the seeps and the Duval Boreholes "represent what is known about the groundwater flowing mid-slope on the south side of the East Fork." Although the "depths of the [Duval] [B]oreholes and the nature of the altered volcanics that were encountered are unknown," the Final EA found it "likely that [Lucky's] proposed boreholes could produce water with chemistry and flow similar to the Duval Corporation boreholes and the seeps below the St. Julian Mine."

¶12 The Final EA concluded that the expected artesian flow from Lucky's proposed drilling would, like...