03/14/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
DA 22-0067 Case Number: DA 22-0067
_________________
MONTANA ENVIRONMENTAL INFORMATION
CENTER, and SIERRA CLUB,
Petitioners and Appellees,
v.
MONTANA DEPARTMENT OF
ENVIRONMENTAL QUALITY,
ORDER
Respondent and Appellant,
MONTANA BOARD OF ENVIRONMENTAL
REVIEW, WESTERN ENERGY CO., NATURAL
RESOURCE PARTNERS L.P., INTERNATIONAL
UNION OF OPERATING ENGINEERS, LOCAL
400, and NORTHERN CHEYENNE COAL
MINERS ASSOCIATION,
Respondents.
_________________
Respondent and Appellant Montana Department of Environmental Quality (DEQ)
moved this Court to stay the January 28, 2022 Order on Remedy and Stay of the Sixteenth
Judicial District Court, Rosebud County, until this matter is resolved on appeal.1 Plaintiffs
and Appellees Montana Environmental Information Center and Sierra Club (MEIC)
opposed DEQ’s motion, and in their response to DEQ’s motion to stay asserted that this
matter should be dismissed as it is not properly before this Court on appeal. However,
MEIC did not file a separate motion to dismiss this appeal.
1
We have amended the caption in this appeal to reflect the current name, Westmoreland Rosebud
Mining, LLC, of the entity formerly known as Western Energy Co.
DEQ now moves this Court for leave to file a brief to address what it characterizes
as a “de facto motion to dismiss.” DEQ explains that since reply briefs to motions are
generally not allowed under M. R. App. P. 16 and M. R. App. P. 22, it can only address the
argument raised in MEIC’s response brief with leave of Court. DEQ contends that if MEIC
had filed a motion to dismiss, the appellate rules would have permitted Westmoreland to
respond to that motion; DEQ argues that under general notions of equity and fairness, it
should not be deprived of the ability to respond because MEIC filed a “stealth” motion to
dismiss within its response to a different motion. As an exhibit to its motion for leave,
DEQ has filed its proposed response to MEIC’s assertion that this appeal should be
dismissed.
We agree that DEQ should be given the opportunity to respond to MEIC’s argument
that this Court should dismiss Westmoreland’s appeal as premature.
IT IS THEREFORE ORDERED that the motion for leave to file a response brief is
GRANTED.
IT IS FURTHER ORDERED that the Response to MEIC’s De Facto Motion to
Dismiss Appeals, included as an exhibit to DEQ’s Motion for Leave to File Attached
Responses [sic] to De Facto Motions to Dismiss Appeals, shall be FILED in this appeal.
The Clerk is directed to serve a copy of this Order upon all counsel of record.
2
Electronically signed by:
Ingrid Gustafson
Justice, Montana Supreme Court
March 14 2022