No. 13179
IN THE SUPREME COURT OF THE STATE OF MONTANA
1976
THE MONTANA WILDERNESS ASSOCIATION, and
GALLATING SPORTMEN'S ASSOCIATION, INC.,
Plaintiffs and Respondents,
THE BOARD.OF HEALTH AND ENVIRONMENTAL SCIENCES
OF THE STATE OF MONTANA; 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.
Appeal from: District Court of the First Judicial District,
Honorable Gordon R. Bennett, Judge presiding.
Counsel of Record :
For Appellants:
G. Steven Brown argued, Helena, Montana
For Intervenor:
Dzivi, Conklin, Johnson and Nybo, Great Falls,
Montana
William P. ConkLin argued, Great Falls, Montana
For Respondents :
James Goetz argued, Bozeman, Montana
For Amicus Curiae:
Steven J. Perlmutter, Environmental Quality Council,
argued, Helena, Montana
Richard PI. Weddle, Community Affairs, Helena, Montana
Donald R. Marble, Women Voters, Chester, Montana
Anderson, Symrnes, Forbes, Peete & Brown, Home Builders,
Billings, Montana
Submitted: December 6, 1976
RC 0 f 9TC
Decided : 3
?
J76,
Filed: 4iib d e ,-
Mr.Justice Wesley Castles delivered the Opinion of the Court.
This is an action by the Montana Wilderness Association
and the Gallatin Sprttmen'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 ( ) that
1
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 r h r i n g and the opinion previously
promulgated on July 22, 1976, is withdrawn.
Plaintiffs in the district court were the Montana Wilder-
ness Association, a Montana nonprofit corporation dedicated to
the promotion of wilderness areas and aiding environmental causes
generally, and Gallatin Sportmen's Association, Inc., a Montana
nonprofit corporation organized for charitable, educational and
scientific purposes including the conservation of wildlife, wild-
life habitat and other natural resources.
Defendants 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 state agency, appeared
in the district court as amicus curiae. The Montana Department of
Community A f f a i r s appears a s amicus c u r i a e . Other amicus c u r i a e
appeared by b r i e f .
Beaver Creek South owns a t r a c t of approximately 160
a c r e s adjacent t o U.S. Highway 191 i n t h e G a l l a t i n Valley seven
miles south of Big Sky of Montana. Early i n 1973 Beaver Creek
submitted t o t h e Bozeman City-County Planning Board a subdivision
p l a t f o r approval by t h a t board and t h e G a l l a t i n County Commissioners,
contemplating development of 95 a c r e s of t h a t t r a c t a s a planned
u n i t development i n two phases. This submission and approval
was required by s e c t i o n s 11-3859 through 11-3876, R.C.M. 1947,
known a s t h e Montana Subdivision and P l a t t i n g Act. A f t e r publica-
t i o n of n o t i c e a public hearing was held on October 11, 1973
where t h e only p u b l i c r e a c t i o n was from t h e S t a t e Department of
F i s h and Game, expressing concern about p o s s i b l e infringement
of w i l d l i f e h a b i t a t along t h e highway. Again, on January 10,
1974, a second public hearing was held a f t e r n o t i c e concerning a
second phase of t h e development was given. A t t h i s second hearing,
no p u b l i c comments were received. Approval of t h e subdivision was
recommended and c a r r i e d o u t , s u b j e c t t o approval of water and
sewer systems by t h e Montana Department of Health and Environ-
mental Sciences a s required by s e c t i o n s 69-4801 through 69-4827,
R.C.M. 1947. The a p p l i c a t i o n f o r t h i s approval had been made
by t h e owner e a r l y i n 1973 a l s o . A t the local level, neither
p l a i n t i f f appeared a t t h e public hearings.
A f t e r s e v e r a l months of conferences and t e s t s t h e Department
issued a d r a f t environmental impact statement on A p r i l 8 , 1974.
The d r a f t statement was issued purportedly because of t h e r e q u i r e -
ments of s e c t i o n 69-6504(b)(3), R.C.M. 1947, t h e Montana Environ-
mental Policy Act (MEPA). A f i n a l impact statement was issued on
June 26, 1974.
-3-
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 sue a state agency, but the Department must be
given an opportunity to exercise its discretion and that an injunc-
tion 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 injunc-
tion 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 alternatives 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 environ-
ment and the maintenance and enhancement of long-term productivity
as required by section 69-6504(b) (3) (iv) , R.C.M. 1947.
( ) The Revised EIS does not include to the fullest
4
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 1 ( ) 6 ,
2b() M.R.Civ.P. and
considered matters outside the pleadings, principally interroga-
tories 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 parti-
culars, 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 that the district court findings and judgment are premised
on the MEPA being the ruling statute; and that the Department of
Health is 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.
The Montana Environmental Policy Act, sections
69-6501 through 6518, R.C.M. 1947. This Act declares as its pur-
pose in section 69-6502:
"The purpose of this act is to declare a state policy
which will encourage productive and enjoyable harmony
between man and his environment; to promote efforts
which will prevent or eliminate damage to the environ-
ment and biosphere and stimulate the health and welfare
of man; to enrich the understanding of the ecological
systems and natural resources important to the state; and
to establish an environmental quality council."
The MEPA then goes on to describe in general terms the environ-
mental impacts that must be assessed when agencies of the state
make major decisions having a significant impact on the human
environment. Section 69-6504 requires state agencies to prepare
detailed statements analyzing the impacts of major actions of
state
--- government in several categories. In that same section
the "responsible state official" shall consult with other state
agencies, and, in subdivision (6) provides that state agencies
shall:
"make available to counties, municipalities,
institutions, and individuals, advice and information
useful in restoring, maintaining, and enhancing the
quality of the environment".
The MEPA also created a legislative branch entity known
as the Environmental Quality Council. This group has been
vested with legislative watchdog authority as a sort of legislative
auditor within the legislative branch of government. This Act
was amended in 1975 to that all voting members of the council
are legislative members. The original Act was passed prior to
the effective date of the 1972 Montana Constitution.
(3) The 1973 Subdivision and Platting Act, sections 11-3859
through 11-3876, R.C.M. 1947. This Act confers upon local governing
bodies the authority to approve or disapprove a subdivision based
on a variety of environmental, economic and social factors (section
11-3863). hat section, 11-3863, describes the content of the
regulations that must be adopted by every local governing body to
insure the ":
9 ** orderly development of their jurisdictional
areas J; 9: J:." The factors that must be considered include the
impact on roads, the need for additional roadways and utility
easements, adequate open spaces, water, drainage, sanitation
facilities and others, including environmental factors. Also
in that section it is provided that the state department of
intergovernmental relations shall prescribe reasonable minimum
requirements for the local governmental units' regulations which
shall include "detailed criteria for the content of the environmental
assessment required by the act." Public hearings are required and
the local governing body "shall consider all relevant evidence
relating to the public health, safety and welfare, including the
environmental assessment ** *.I1
It is also noted that section 69-5001 of the 1967 Sub-
division Sanitation Act (also amended in 1973) limited expressly
the involvement of the Department to "water supply, sewage disposal,
and solid waste disposal1,'.
Further analysis of the 1973 Subdivision and Platting
Act will demonstrate unequivocally a legislative intent to place
control of subdivision development in local governmental units
in accordance with a comprehensive set of social, economic,
and environmental criteria and in compliance with detailed
procedural requirements.
Significantly, no similar mandate is given in the 1971
MEPA. Thus we conclude that the district court's reasoning,
necessarily implied from its holding, that MEPA extends the
Department's control over subdivisions beyond matters of water
supply, sewage and solid waste disposal is in error as it is in
direct conflict with the legislature's undeniable policy of local
control as expressed in the Subdivision and Platting Act.
A further comparison of the local control versus State
control over subdivisions is this---the 1973 legislature charged
local governing bodies with comprehensive control over subdivision
development, and amended that law in 1974 and 1975. If the
1971 MEPA already lodged this control in the state Department,
such legislation was superfluous. Also, the express purpose
I1
of MEPA set out previously herein states to encourage", "promote"
and "enrich" [understanding]. Nowhere in the MEPA is found any
regulatory language.
We refer back to the procedures here. The local governing
unit, the Gallatin County Commission, had already complied with
the laws. It was not made a party to this action. It had a
statutory duty and right to act. The MEPA does not change the
law with regard to that. Accordingly the judgment directed to the
Department's failure to adequately write an environmental impact
statement has nothing to do with the authority of the county
commission to act. As to the Department, it of course, can
- 9 -
supplement information a v a i l a b l e t o l o c a l governing bodies, b u t
i t s only r e g u l a t o r y function i s i n t h e s t a t u t o r i l y prescribed
a r e a s of water supply, sewage and s o l i d waste d i s p o s a l .
W have n o t h e r e i n s e t out t h e f u n c t i o n of t h e Montana
e
Department of Community A f f a i r s which has submitted a b r i e f
amicus c u r i a e . But we do observe t h a t d e t a i l e d procedures f o r
intergovernmental functions a r e s e t out by s t a t u t e s , r e g u l a t i o n s ,
and procedures f o r p r o t e c t i o n of t h e environment.
Finding, a s we have, t h a t t h e r e g u l a t o r y function of
subdivisions i s l o c a l , t h e judgment and i n j u n c t i v e o r d e r of t h e
d i s t r i c t c o u r t i s reversed and t h e complaint ordered dismissed.
WE concur.
~ 6 n o r S b l eA. B. MARTIN
Sitting for Honorable JAMES T.
HARRISON
Mr. Justice Frank I. Haswell dissenting:
The decision of the Court today deals a mortal blow
to environmental protection in Montana. With one broad sweep
of the pen, the majority has reduced constitutional and statutory
protections to a heap of rubble, ignited by the false issue of
local control.
This case does.not concern local approval of subdivision
plats by county commissioners under the Subdivision & Platting
Act. Neither the county commissioners nor the city-county
planning board is a party to this litigation. Nobody claims that
the county commissioners do not have the power of approval of
subdivision plats in conformity with the Subdivision & Platting
Act. State v. local control is simply a "red herring" in this
case.
The real issues in this case concern the right of two
essentially local environmental organizations whose members make
substantial use of nearby public lands for recreational purposes
to compel a state agency to conform to the requirements of the
Montana Environmental Policy Act regarding an Environmental Impact
Statement to the end that an adequate environmental assessment
will be made and considered by the decision makers, be they local
or state or whoever they may be. If they cannot, the inalienable
right of all persons to a clean and healthful environment guaran-
teed by Montana's Constitution confers a right without a remedy;
the requirements of Montana's Environmental Policy Act and related
environmental legislation become meaningless and illusory; and
the mandatory Environmental Impact Statement deteriorates into a
meaningless gibberish, providing protection to no one. These issues
are embodied in the three principal issues raised by the
parties, viz. standing, the validity of the Environmental Impact
Statement, and injunctive relief.
In my view, the majority neatly sidesteps these real
issues in this case. Instead, the majority decision effectively
bn
nullifies express state policy/environmental matters contained
in the Montana Environmental Policy Act, House Joint Resolution
73 approved March 16, 1974, and substantially interferes with
and limits the effective operation of the legislature's Environ-
mental Quality Council.
Because this Court has made a 180' turn from its original
position, I set out the original decision of this Court for
comparison. I believe the original decision is correct, legally
sound, and effectuates the purposes and objective of Montana's
Constitution and its statutes relating to the environment.
I . . . . - . '
This i s an a c t i o n by t h e Montana Wilderness A s s o c i a t i o n
and the G a l l a t i n s p o r t s m e n ' s A s s o c i a t i o n , I n c . , for declaratory
and i n j u n c t i v e r e l i e f a g a i n s t a proposed s u b d i v i s i o n development
i n G a l l a t i n County known a s Beaver Creek South. The d i s t r i c t
c o u r t of Lewis and C l a r k County e n t e r e d summary judgment (1) t h a t
t h e environmental impact s t a t e m e n t on t h e proposed s u b d i v i s i o n
was v o i d , ( 2 ) o r d e r i n g r e i n s t a t e m e n t of t h e p r i o r s a n i t a r y r e s t r i c -
t i o n s on t h e proposed s u b d i v i s i o n , and ( 3 ) e n j o i n i n g f u r t h e r
development of t h e proposed s u b d i v i s i o n u n t i l t h e reimposed s a n i t a r y
r e s t r i c t i o n s a r e l e g a l l y removed. One of t h e d e f e n d a n t s and
intervenor appeal.
P l a i n t i f f s i n t h e d i s t r i c t c o u r t were t h e Montana Wilderness
A s s o c i a t i o n , a Montana n o n p r o f i t c o r p o r a t i o n d e d i c a t e d t o t h e
promotion of w i l d e r n e s s a r e a s and a i d i n g environmental c a u s e s
g e n e r a l l y , and G a l l a t i n Sportsmen's A s s o c i a t i o n , I n c . , a Montana
n o n p r o f i t c o r p o r a t i o n organized f o r c h a r i t a b l e , e d u c a t i o n a l and
s c i e n t i f i c purposes i n c l u d i n g t h e c o n s e r v a t i o n of w i l d l i f e ,
w i l d l i f e h a b i t a t and o t h e r n a t u r a l r e s o u r c e s .
Defendants a r e (1) t h e Board of H e a l t h and Environmental
S c i e n c e s and, ( 2 ) t h e Department of H e a l t h and Environmental
S c i e n c e s of t h e S t a t e of Montana. I n t e r v e n o r Beaver Creek South,
I n c . i s a Montana c o r p o r a t i o n and t h e d e v e l o p e r of t h e proposed
subdivision. The Montana Environmental Q u a l i t y Council, a s t a t u t o r y
s t a t e agency, appeared i n t h e d i s t r i c t c o u r t a s amicus c u r i a e .
Beaver Creek South i s l o c a t e d i n t h e canyon of t h e West
G a l l a c i n River a d j a c e n t t o U . S . Highway 191 about seven m i l e s s o u t h
o f Meadow V i l l a g e o f Big Sky of Montana. Beaver Creek c r o s s e s a
p o r t i o n of t h e p r o p e r t y f o r about o n e - q u a r t e r m i l e a l o n g t h e n o r t h
side. The general area where the proposed subdivision is located
is a scenic mountain canyon area presently utilized as a wildlife
habitat and a grazing area for livestock. Beaver Creek supports a
salmonoid fishery. A two lane public highway, U.S. 191, runs
through the canyon.
The developer Beaver Creek South, Inc., hereinafter called
Beaver Creek, intends to subdivide approximately 95 acres into
75 lots for single-family and multi-family residences and a maxi-
mum of seven and one-half acres abutting U.S. Highway 191, for a
neighborhood commercial area. The development of the subdivision
is to be accomplished in two phases.
In 1973 Beaver Creek submitted to the Bozeman City-County
Planning Board its subdivision plat contemplating Beaver Creek South
for approval by the board and the county commissioners as required
by sections 11-3859 through 11-3876, R.C.M. 1947, the Montana Sub-
division and Platting Act. In the spring of 1974 Beaver Creek filed
the subdivision plat and plans and specifications for a water supply
and sewer system with the Montana Department of Health and Environ-
mental Sciences (hereinafter called the Department) for review and
approval as required by sections 69-5001 through 69-5009, R.C.M.
1947, the Sanitation in Subdivisions Act. Section 69-5003 ( ) b
2()
provides that a subdivision plat may not be filed with the county
clerk and recorder until the Department has certified "that it has
approved the plat and plans and specifications and the subdivision
is subject to no sanitary restriction".
In April 1974 the Department circulated a "draft" environ-
mental impact statement on the proposed subdivision in order to
obtain comments on the proposal pursuant to section 69-6504(b)(3),
R.C.M. 1947, of the Montana Environmental Policy Act (MEPA).
Written comments were received and the Department issued its
"finall'environmental impact statement in June 1974. The following
month plaintiff Associations commenced this action seeking a
permanent injunction against the ~epartment'sremoval of sanitary
restrictions on the proposed Beaver Creek South. The Associations
alleged failure of compliance with subdivision laws, administrative
rules, Environmental Quality Council guidelines, and MEPA. The
district court issued a temporary restraining order and an order to
show cause. The Department and the Associations entered into a
stipulation vacating the show cause hearing and the Department re-
vised its final environmental impact statement, submitting a copy
to the district court in October 1974. This revised final environ-
mental impact statement is hereinafter called the Revised EIS.
Meanwhile, in September 1974, Beaver Creek was granted leave
to intervene, Motions to dismiss and briefs were filed, and on
February 11, 1975, the district court ordered the temporary restrain-
ing 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 sue 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 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) (I), R.C.M. 1947.
(2) The Revised EIS does not include a detailed statement of
alternatives 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) ( ) R.C.M.
4,
1947.
(3) The Revised EIS does not contain a detailed statement
of the relationship between local short-term uses of man's environ-
ment and the maintenance and enhancement of long-term productivity
as required by section 69-6504(b)(3)(iv), R.C.M. 1947.
( ) The Revised EIS does not include to the fullest extent
4
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 Environ-
mental Quality Council was granted leave to file a brief as amicus
c u r i a e ; b r i e f s were f i l e d by a l l p a r t i e s ; and t h e m a t t e r was sub-
mitted t o the d i s t r i c t court f o r decision.
The d i s t r i c t c o u r t considered t h e motions t o d i s m i s s a s
motions f o r summary judgment under Rule 1 2 ( b ) ( 6 ) , M.R.Civ.P. and
considered m a t t e r s o u t s i d e t h e p l e a d i n g s , p r i n c i p a l l y i n t e r r o g a -
t o r i e s and answers.
On August 29, 1975 t h e d i s t r i c t c o u r t i s s u e d i t s o p i n i o n and
d e c l a r a t o r y judgment. I n substance t h e d i s t r i c t c o u r t h e l d t h e
p l a i n t i f f s have s t a n d i n g t o prosecute t h i s a c t i o n , t h a t t h e Revised
EIS does n o t meet s t a t u t o r y requirements i n v a r i o u s p a r t i c u l a r s ,
and p l a i n t i f f s a r e e n t i t l e d t o i n j u n c t i v e r e l i e f . Judgment was
entered accordingly.
Defendant Department of Health and Environmental Sciences and
i n t e r v e n o r Beaver Creek South, I n c . a p p e a l from t h e judgment.
The i s s u e s can be summarized i n t h i s f a s h i o n :
1) Do p l a i n t i f f A s s o c i a t i o n s have s t a n d i n g t o m a i n t a i n t h i s
action?
2) Does t h e Revised EIS s a t i s f y t h e p r o c e d u r a l requirements
of t h e Montana Environmental P o l i c y Act (MEPA)?
3) Are p l a i n t i f f A s s o c i a t i o n s e n t i t l e d t o i n j u n c t i v e r e l i e f ?
A p p e l l a n t s c h a l l e n g e t h e s t a n d i n g of t h e A s s o c i a t i o n s t o
bring t h i s s u i t . A p p e l l a n t s ' arguments f a l l i n t o t h r e e main c a t e -
gories: a ) t h a t t h e A s s o c i a t i o n s have s u f f e r e d no c o g n i z a b l e i n j u r y ;
b ) t h a t any i n j u r y s u f f e r e d o r t h r e a t e n e d i s i n d i s t i n g u i s h a b l e from
t h e i n j u r y t o t h e p u b l i c g e n e r a l l y ; and c ) t h a t n e i t h e r MEPA, t h e
Montana A d m i n i s t r a t i v e Procedure Act, n o r any o t h e r s t a t u t e g r a n t s
s t a n d i n g t o t h e s e A s s o c i a t i o n s t o sue a g e n c i e s of t h e s t a t e .
I n i t i a l l y , t h e q u e s t i o n of environmental s t a n d i n g under M P
EA
i s one of f i r s t impression i n Montana. Therefore, the Associations
and amicus curiae have presented this Court with numerous authori-
ties from other jurisdictions on the issue of environmental standing.
We have reviewed these authorities in detail. We find none are
controlling as to the question before us, but a brief review of such
authorities aids in the illumination of the determinative factors
regarding this issue.
The Associations urge this Court to adopt the rationale of
the federal courts in finding environmental standing because the
relevant portions of MEPA in issue here are patterned virtually
verbatim after corresponding portions of the National Environmental
Policy Act of 1969, 42 U.S.C. $ 5 4321 through 4347, (NEPA).
In the federal courts, citizen challenges to alleged illegal
agency action are often brought pursuant to the federal Administra-
tive Procedure Act, 5 U.S.C. $ 5 701 through 706. The companion
cases of Association of Data Processing Service Organizations v.
Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L ed 2d 184,188; and Barlow
v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L ed 2d 192 (1970),
established the federal two-pronged test for standing to sue adminis-
trative agencies. The United States Supreme Court held that persons
have standing to obtain judicial review of federal agency action
under the federal Administrative Procedure Act where they allege
that the challenged action causes them injury in fact and where the
alleged injury is to an interest "arguably within the zone of
interests to be protected or regulated" by the statutes that the
agencies are claimed to have violated.
Data Processing and Barlow did not concern environmental
matters, but such a case was presented in Sierra Club v. Morton, 405
U.S. 727, 92 S.Ct. 1361, 31 L ed 2d 636, 641, (1972). In Sierra Club,
a conservation organization alleged its "special interest" in
conservation and sound management of public lands, and sued the
Secretary of the Interior for declaratory and injunctive relief
against the granting of approval or issuance of permits for commer-
cial exploitation of a national game refuge area in California.
Petitioner invoked the judicial review provisions of the federal
Administrative Procedure Act. The Supreme Court commenced its
discussion of standing with this statement:
"* * * Wherethe party does not rely on any specific
statute authorizing invocation of the judicial process,
the question of standing depends upon whether the party has
alleged such a 'personal stake in the outcome of the con-
troversy,' Baker v. Carr, 369 U.S. 186, 204, 7 L ed 2d 663,
678, 82 S.Ct. 691, as to ensure that 'the dispute sought
to be adjudicated will be presented in an adversary context
and in a form historically viewed as capable of judicial
resolution.' Flast v. Cohen, 392 U.S. 83, 101, 20 L ed 2d
947, 962, 88 S.Ct. 1942. Where, however, Congress has
authorized public officials to perform certain functions
according to law, and has provided by statute for judicial
review of those actions under certain circumstances, the
inquiry as to standing must begin with a determination of
whether the statute in question authorizes review at the
behest of the plaintiff ."
The Supreme Court held that petitioner lacked standing solely
because it did not sufficiently allege "injury in fact1'to its
"individualized interests", that is, its individual members. Thus
the Court did not reach the question of whether petitioner satis-
fied the "zone of interestt'test.
In United States v. Students Challenging Regulatory Agency
Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L ed 2d 254,
269, (1973), proceedings were brought against the Interstate Commerce
Commission (ICC) to enjoin the enforcement of certain administra-
tive orders. Plaintiff organization alleged injury in that each of
its members used the natural resources in the area of their legal
residences for camping, hiking, fishing, sightseeing, and other
- 8 -
recreational and aesthetic purposes. The alleged illegal activity
was that the ICC failed to include with its orders a detailed en-
vironmental impact statement as required by NEPA. The Court found
the allegations of the complaint with respect to standing were
sufficient to withstand a motion to dismiss in the district court.
The Court also reiterated from Sierra Club that "injury in fact" is
not confined to economic harm:
"* * *Rather, we explained [in Sierra Club] : 'Aesthetic
and environmental well-being, like economic well-being,
are important ingredients in the quality of life in our
society, and the fact that particular environmental interests
are shared by the many rather than the few does not make them
less deserving of legal protection through the judicial
process.' ** * Consequently, neither the fact that the
appellees here claimed only a harm to their use and enjoy-
ment of the natural resources of the Washington area, nor
the fact that all those who use those resources suffered the
same harm, deprives them of standing."
It was undisputed that the "environmental interests" asserted by
plaintiff were within the "zone of interests" to be protected or
regulated by NEPA, the statute claimed to have been violated.
Sierra Club and SCRAP underscore the fact that in the federal
courts environmental standing has developed in the statutory context
of the federal Administrative Procedure Act.
The lower federal courts have, of course,fo.llowed the "injury
in fact" and "zone of interest1'test. For example, in the Ninth
Circuit Court: National Forest Preservation Group v. Butz, 485 F.2d
408 (1973); Cady v. Morton, 8 ERC 1097, 527 F.2d 786 (1975); City
of Davis v. Coleman, 521 F.2d 661 (1975).
Here, the Associations also cite several cases from California
and Washington in support of their standing argument. The experience
in the state of Washington has some pertinence to our inquiry.
washington's State Environmental Policy Act, Washington Revised Code,
Ch. 43.21C (1974) (SEPA) , is also modeled after NEPA and has been
interpreted by the Washington courts in several cases. The leading
case as to standing is Leschi Improvement Council v. Washington State
Highway Commission, 84 Wash.2d 271, 525 P.2d 774, 786, (1974).
Washington's SEPA, like MEPA, contains no express provision for
judicial review at the behest of private parties. In Leschi peti-
tioners obtained review of a state highway commission's limited
access and design hearings and of the commission's environmental
impact statement, not pursuant to any statutory grant of standing,
but by way of certiorari in the stafe's lower court. Petitioners
also sought an injunction. The Washington Supreme Court held the
petitioners had standing because they raised the question of whether
a nonjudicial administrative agency committed an illegal act violative
of fundamental rights. An illegal act was said to be one which is
contrary to statutory authority. More important, the court held that
petitioners sufficiently alleged violation of a fundamental right
because of the language in SEPA that each person has a "fundamental
and inalienable right to a healthful environment." Washington Revised
Code 543.21C.020(3). This section schematically corresponds to MEPA
section 69-6503(b), which recognizes that "each person shall be en-
titled to a healthful environment * * *."
In Leschi four justices dissented. They objected to the
standing of petitioners because:
' * * * Judicial review of the administrative proceeding
I
involved, at the instance of persons standing in the
position of the appellants, is not authorized by any
statute or any doctrine of the common law, and there is
no suggestion that it is mandated by any provision of
the state or federal constitutions." (Emphasis supplied.)
Here, appellants suggest this Court follow certain Montana
cases in denying standing on the ground that the Associations lack
standing to enjoin public officers from acting. This argument fails
- 10 -
t o d i s t i n g u i s h between t h e s e p a r a t e q u e s t i o n s of s t a n d i n g and of
injunctive r e l i e f . The p a r t i c u l a r i s s u e of i n j u n c t i o n s w i l l be
treated separately hereinafter.
I n Montana, t h e q u e s t i o n of s t a n d i n g t o sue government
agencies has a r i s e n i n t h e c o n t e x t of taxpayer and e l e c t o r s u i t s .
S t a t e ex r e l . M i t c h e l l v. D i s t r i c t Court, 128 Mont. 325, 339, 275
P.2d 642, involved a complaint seeking t o e n j o i n t h e s e c r e t a r y of
s t a t e from c e r t i f y i n g nominees f o r e l e c t i o n t o a c e r t a i n o f f i c e .
This Court s a i d :
"The complaint which t h e p l a i n t i f f *** filed in
t h e d i s t r i c t c o u r t shows t h a t h i s only i n t e r e s t i s
a s a taxpaying, p r i v a t e c i t i z e n and p r o s p e c t i v e a b s e n t e e
v o t e r . I t wholly f a i l s t o show t h a t he w i l l be i n j u r e d
i n any p r o p e r t y o r c i v i l r i g h t . Thus does [ h i s ] own
p l e a d i n g show him t o be w i t h o u t s t a n d i n g o r c a p a c i t y t o
invoke e q u i t a b l e cognizance of a p u r e l y p o l i t i c a l q u e s t i o n
** *.'I (Emphasis s u p p l i e d . )
Holtz v . Babcock, 143 Mont. 341, 380, 390 P.2d 801, was an
a c t i o n t o e n j o i n t h e governor and o t h e r s t a t e o f f i c e r s from performing
an agreement r e g a r d i n g an a i r p l a n e l e a s e . I t was h e l d t h a t p l a i n t i f f
lacked s t a n d i n g t o sue a s a c i t i z e n , r e s i d e n t , taxpayer and a i r p l a n e
owner. O p e t i t i o n f o r r e h e a r i n g t h e Court s t a t e d :
n
'I* ** The only complaint a taxpayer can have i s when
[ t h e a l l e g e d s t a t e a c t i o n ] a f f e c t s h i s pocketbook by
u n l a w f u l l y i n c r e a s i n g h i s t a x e s . Appellant h e r e does
n o t a l l e g e any p a r t i c u l a r i n j u r y which he p e r s o n a l l y
would s u f f e r . I 1 (Emphasis s u p p l i e d . )
I n S t a t e ex r e l . Conrad v. Managhan, 157 Mont. 335, 338,
485 P.2d 948, t h e Court summarily s t a t e d :
"* * * We hold t h a t r e l a t o r s a s a f f e c t e d t a x p a y e r s ,
have s t a n d i n g t o b r i n g a d e c l a r a t o r y judgment a.ction
[ a g a i n s t county a s s e s s o r s and t h e s t a t e board of e q u a l -
i z a t i o n ] concerning a t a x c o n t r o v e r s y ** *." (Emphasis
supplied.)
Chovanak v. Matthews, 120 Mont. 520, 525-527, 188 P.2d
582, concerns an attack against the constitutionality of a statute
rather than a challenge to particular agency action. However, we
look to Chovanak for its general discussion of the principles of
standing. There the plaintiff sued the state board of equalization
for a declaratory judgment that a slot machine licensing act was
constitutionally void. Plaintiff alleged he was a resident, citizen,
taxpayer and elector of the county where the action was commenced.
We quote Chovanak for the sound rules of jurisprudence mmciated:
"It is by reason of the fact that it is only
judicial power that the courts possess, that they are
not permitted to decide mere differences of opinion
between citizens, or between citizens and the state, or
the administrative officials of the state, as to the
validity of statutes. * * *
"* >k * The judicial power vested in the district
courts and the Supreme Court of Montana, by the pro-
visions of the Montana Constitution extend to such
'cases at law and in equity' as are within the judicial
cognizance of the state sovereignity. Article 8, secs.
3, 11. By 'cases' and I controversies' within the judicial
power to determine, is meant real controversies and not
abstract differences of opinion or moot questions. Neither
federal nor state Constitution has granted such power.
"The only interest of the appellant in the premises
appears to be that he is a resident, citizen, taxpayer and
elector of the county * * *. He asserts no legal right of
his that the said board has denied him, and sets forth no
wrong which they have done to him, or threatened to inflict
upon him.
"Appellant's complaint is in truth against the law,
not against the board of equalization. He represents no
organization that has been denied a slot machine license.
He seeks no license for himself. In fact it appears from
his complaint that slot machines, licensed or unlicensed,
are utterly anathema to him. There is no controversy
between him and the board of equalization.
" I t i s h e l d i n Montana, a s i t i s h e l d i n t h e
United S t a t e s Supreme Court, and by c o u r t s throughout
t h e n a t i o n , t h a t a showing only of such i n t e r e s t i n t h e
s u b j e c t of t h e s u i t a s t h e p u b l i c g e n e r a l l y h a s i s n o t
s u f f i c i e n t t o w a r r a n t t h e e x e r c i s e of j u d i c i a l power.
** *I'
I t i s c l e a r from t h e s e Montana c a s e s t h a t t h e f o l l o w i n g
f a c t o r s c o n s t i t u t e s u f f i c i e n t minimum c r i t e r i a , a s s e t f o r t h i n
a complaint, t o e s t a b l i s h s t a n d i n g t o sue t h e s t a t e :
1) The complaining p a r t y must c l e a r l y a l l e g e p a s t ,
present o r threatened injury t o a property o r c i v i l r i g h t .
2) The a l l e g e d i n j u r y must be d i s t i n g u i s h a b l e from t h e
i n j u r y t o t h e p u b l i c g e n e r a l l y , b u t t h e i n j u r y need n o t be ex-
c l u s i v e t o t h e complaining p a r t y .
II
3) The i s s u e must r e p r e s e n t a case" o r "controversy" a s
i s w i t h i n t h e j u d i c i a l cogniza* of t h e s t a t e s o v e r e i g n t y .
With t h e foregoing c r i t e r i a i n mind, we hold p l a i n t i f f
A s s o c i a t i o n s have s t a n d i n g t o seek j u d i c i a l review o f t h e Department's
a c t i o n s under MEPA.
F i r s t , t h e complaint a l l e g e s a t h r e a t e n e d i n j u r y t o a c i v i l
r i g h t of t h e A s s o c i a t i o n s ' members, t h a t i s , t h e " i n a l i e n a b l e ***
r i g h t t o a c l e a n and h e a l t h f u l environment", A r t i c l e 11, S e c t i o n 3 ,
1972 Montana C o n s t i t u t i o n . This c o n s t i t u t i o n a l p r o v i s i o n , e n a c t e d i n
r e c o g n i t i o n of t h e f a c t t h a t Montana c i t i z e n s ' r i g h t t o a c l e a n and
h e a l t h f u l environment i s on a p a r i t y w i t h more t r a d i t i o n a l i n a l i e n -
a b l e r i g h t s , c e r t a i n l y p l a c e s t h e i s s u e of unlawful environmental
d e g r a d a t i o n w i t h i n t h e j u d i c i a l cognizance.
W have s t u d i e d a p p e l l a n t s ' arguments t h a t A r t i c l e I X ,
e
S e c t i o n 1, 1972 Montana C o n s t i t u t i o n , s t a t e s t h a t t h e l e g i s l a t u r e
s h a l l provide f o r t h e enforcement of t h e s t a t e ' s duty t o "maintain
and improve a c l e a n and h e a l t h f u l environment i n Montana", and t h e
- 13 -
l e g i s l a t u r e s h a l l provide f o r "adequate remedies" t o p r o t e c t i t .
W have s t u d i e d t h e C o n s t i t u t i o n a l Convention minutes surrounding
e
A r t i c l e I X and a r e aware t h e i n t e n t of t h e d e l e g a t i o n was f o r t h e
l e g i s l a t u r e t o a c t pursuant t o A r t i c l e I X . But, we cannot i g n o r e
the bare f a c t t h a t the l e g i s l a t u r e has not given e f f e c t t o the
A r t i c l e I X , S e c t i o n 1 mandate over a p e r i o d of y e a r s . Moreover,
t h e d e c l a r a t i o n of r i g h t s i n A r t i c l e 11, t h e A r t i c l e d e a l i n g w i t h
c i t i z e n s ' Eundamental r i g h t s , g i v e s " A l l persons" i n Montana a
s u f f i c i e n t i n t e r e s t i n t h e Montana environment t o e n a b l e them t o
b r i n g an a c t i o n based on t h o s e r i g h t s , provided they s a t i s f y t h e
other c r i t e r i a s e t forth.
I n t e r v e n o r s urge t h i s Court t o c o n s i d e r t h e l e n g t h y d i s s e n t
i n t h e Washington Leschi c a s e a s p e r s u a s i v e a u t h o r i t y t h a t t h e
p l a i n t i f f Associations lack standing. The p o r t i o n of t h a t d i s s e n t
r e l i e d upon, d e a l s w i t h t h e p r o p o s i t i o n t h e p e t i t i o n e r s t h e r e came
under no s t a t u t o r y g r a n t of s t a n d i n g and were t h e r e f o r e excluded
from t h e c o u r t s i n a SEPA c a s e . However, t h a t d i s s e n t a c t u a l l y
s u p p o r t s o u r holding h e r e . The d i s s e n t a s s a i l s t h e p u r p o r t e d
s t a t u t o r y c r e a t i o n of a "fundamental r i g h t " i n SEPA upon which
s t a n d i n g may be founded, and argues t h a t a fundamental r i g h t can
only be d e r i v e d from t h e fundamental law. W concur and f i n d a n
e
i n a l i e n a b l e , o r fundamental, r i g h t was c r e a t e d i n our fundamental
law, A r t i c l e 11, S e c t i o n 3 , 1972 Montana C o n s t i t u t i o n .
Second, t h e complaint a l l e g e s on i t s f a c e an i n j u r y t o t h e
A s s o c i a t i o n s which i s d i s t i n g u i s h a b l e from t h e i n j u r y t o t h e
general public. When t h e p l a i n t i f f s do n o t r e l y on any s t a t u t o r y
g r a n t of s t a n d i n g , a s h e r e , c o u r t s must look t o t h e n a t u r e of t h e
whether
i n t e r e s t s of p l a i n t i f f s t o d e t e r m i n e / p l a i n t i f f s a r e i n a p o s i t i o n
t o r e p r e s e n t a " p e r s o n a l s t a k e i n t h e outcome of t h e controversy"
ensuring an "adversary context" for judicial review. Sierra Club
v. Morton, supra; Chovanak v. Matthews, supra. Both Associations
allege, in effect, that they are relatively large, permanent,
nonprofit corporations dedicated to the preservation and enhance-
ment of wilderness, natural resources, wildlife and associated concerns.
Both Associations allege substantial use of the public lands ad-
jacent to Beaver Creek South by their members for various recrea-
tional purposes. The Gallatin Sportsmen's Association contributed
to the Department's Revised EIS by way of written comments to the
draft environmental impact statement. These facts are sufficient
to permit the Associations to complain of alleged illegal state
action resulting in damage to the environment.
Third, there can be no doubt that unlawful environmental
degradation is within the judicial cognizance of the state sover-
eignty. The constitutional provisions heretofore discussed and
MEPA itself unequivocably demonstrate the state's recognition of
environmental rights and duties in Montana. The courts of the state
are open to every person for the remedy of lawfully cognizable in-
juries. Article 11, Section 16, 1972 Montana Constitution; Section
93-2203, R.C.M. 1947.
Finally, we reiterate these Associations are citizen groups
seeking to compel a state agency to perform its duties according
to law. This concept is novel in Montana only insofar as it is
raised here in the context of the state's explicit environmental
policy. Were the Associations denied access to the courts for the
purpose of raising the issue of illegal state action under MEPA,
the foregoing constitutional provisions and MEPA would be rendered
useless verbiage, stating rights without remedies, and leaving the
state with no checks on its powers and duties under that act.
The statutory functions of state agencies under MEPA cannot be left
unchecked simply because the potential mischief of agency default
in its duties may affect the interests of citizens without the
Associations' membership. United States v. SCRAP, supra.
The second major issue concerns the adequacy of the
Revised EIS filed by the Department on the Beaver Creek South
subdivision.
has
Throughout the argument Beaver ~reek/maintainedthat MEPA
has no bearing upon the Department's review of the proposed sub-
division plat and an environmental impact statement is not required.
If such statement is required, then Beaver Creek allies itself with
the Department's position. The Department concedes that an
environmental impact statement is required, but contends its
responsibilities under MEPA are circumscribed by other statutory
authority. In both Beaver Creek's and the Department's arguments,
the thrust is that subdivision review has been comprehensively
provided for in two acts hereinbefore cited: the Subdivision and
Platting Act and the Sanitation in Subdivisions Act. They allege
the clear legislative intent of the Subdivision and Platting Act
is to place final subdivision approval authority in the hands of
local government (e.g., section 11-3866, R.C.M. 1947), and the
Department can interfere with town, city, or county subdivision
approval only to the extent of its particular expertise and authority
under the Sanitation In Subdivisions Act. Thus, they allege, if a
Department environmental impact statement is required, it need deal
in detail only with the environmental effects related to water
supply, sewage disposal, and solid waste disposal.
Montana's Environmental Policy Act was enacted in 1971
and is patterned after the National Environmental Policy Act.
It is a broadly worded policy enactment in response to growing
public concern over the innumerable forms of environmental degra-
dation occurring in modern society. The first two sections of
MEPA state:
"69-6502. Purpose of act. The purpose of this act is
to declare a state policy which will encourage productive
and enjoyable harmony between man and his environment;
to promote efforts which will prevent or eliminate damage
to the environment and biosphere and stimulate the health
and welfare of man; to enrich the understanding of the
ecological systems and natural resources important to the
state; and to establish an environmental quality council."
"69-6503. Declaration of state policy for the environment.
The legislative assembly, recognizing the profound impact
of man's activity on the interrelations of all components
of the natural environment, particularly the profound influ-
ences of population growth, high-density urbanization,
industrial expansion, resource exploitation, and new and
expanding technological advances and recognizing further the
critical importance of restoring and maintaining environ-
mental quality to the overall welfare and development of man,
declares that it is the continuing policy of the state of
Montana, in co-operation with the federal government and local
governments, and other concerned public and private organi-
zations, to use all practicable means and measures, including
financial and technical assistance, in a manner calculated to
foster and promote the general welfare, to create and maintain
conditions under which man and nature can coexist in pro-
ductive harmony, and fulfill the social, economic, and other
requirements of present and future generations of Montanans.
"a
() In order to carry out the policy set forth
in this act, it is the continuing responsibility of
the state of Montana to use all practicable means, con-
sistent with other essential considerations of state policy,
to improve and co-ordinate state plans, functions, programs,
and resources to the end that the state may ---
II
(1) fulfill the responsibilities of each genera-
tion as trustee of the environment for succeeding genera-
tions ;
"(2) assure for all Montanans safe, healthful,
productive, and esthetically and culturally pleasing
surroundings;
" (3) attain the widest range of beneficial uses
o f the environment without degradation, risk to health
or safety, or other undesirable or unintended consequences;
"4
( ) preserve important historic, cultural, and
natural aspects of our unique heritage, and maintain,
wherever possible, an environment which supports diversity
and variety of individual choice ;
"(5) achieve a balance between population and
resource use which will permit high standards of living
and a wide sharing of life's amenities; and
"(6) enhance the quality of renewable resources and
approach the maximum attainable recycling of depletable
resources.
(b) The legislative assembly recognizes that each
person shall be entitled to a healthful environment and that
each person has a responsibility to contribute to the pre-
servation and enhancement of the environment.I 1
These sections unequivocably express the intent of the Montana
legislature regarding environmental policy.
But MEPA does more than express lofty policies which want
for any means of legislative or agency implementation. Section 69-
6504, R.C.M. 1947, contains "General directions to state agencies"
and provides :
"The legislative assembly authorizes and directs that
to the fullest extent possible.
"a
() The policies, regulations, and laws of the
state shall be interpreted and administered in accordance
with the policies set forth in this act, and
"(b) all agencies of the state shall
'I (1) utilize a systematic, interdisciplinary
approach which will insure the integrated use of the natural
and social sciences and the environmental design arts in
planning and in decision making which may have an impact on
man's environment;
" ldentify and develop methods and procedures,
(2)
which will insure that presently unquantified environmental
amenities and values may be given appropriate consideration
in decision making along with economic and technical con-
siderations;
" (3) include in every recomrr~endationor report
on proposals for projects, programs, legislation and
other major actions of state government significantly
affecting the quality of the human environment, a detailed
statement on ---
I' (i) the environmental impact of the pro-
posed action,
"(ii) any adverse environmental effects which
cannot be avoided should the proposal be implemented,
I
' (iii) alternatives to the proposed action,
"(iv) the relationship between local short-
term uses of man's environment and the maintenance and
enhancement of long-term productivity, and
" (v) any irreversible and irretrievable
commitments of resources which would be involved in the
proposed action should it be implemented.
"Prior to making any detailed statement, the responsible
state official shall consult with and obtain the comments
of any state agency which has jurisdiction by law or special
expertise with respect to any environmental impact in-
volved. Copies of such statement and the comments and views
of the appropriate state, federal, and local agencies,
which are authorized to develop and enforce environmental
standards, shall be made available to the governor, the
envir-onmental quality council and to the public, and shall
accompany the proposal through the existing agency review
processes. * * *I1
The "detailed statement" described by subsection ( ) 3
b() is
referred to as the environmental impact statement, or EIS.
Appellants emphasize that the Subdivision and Platting Act
was passed two years after MEPA, and this circumstance expresses a
legislative intent that local review of environmental factors,
particularly under sections 11-3863 and 11-3866, R.C.M. 1947, ob-
viates the necessity for Departmental review. Such an interpreta-
tian, hc~evzr,conflicts with the tern= cf MEPA, in section 69-6507,
R.C.M. 1947;
"The policies and goals set forth in this act are
supplementary to those set forth in existing authoriza-
tions of all boards, commissions, and agencies of the
state .It
Had the legislature intended local review to replace the rigorous
review required by responsible state agencies, it could easily have
so stated. The existing statutes evince a legislative intent that
subdivision decisions be made at the local planning level based
upon factors with an essentially local impact, and that state in-
volvement triggers a comprehensive review of the environmental
consequences of such decisions which may be of regional or state-
wide importance.
An illustration of this interpretation is provided by a
comparison of the provisions of MEPA, hereinbefore set forth,
with certain provisions of the Subdivision and Platting Act. The
statement of policy in the Subdivision and Platting Act contains
a mandate to "require development in harmony with the natural en-
vironment", section 11-3860, R.C.M. 1947. Section 11-3863(1),
R.C.M. 1947, requires local governing bodies to adopt regulations
and enforcement measures for, inter alia, "the avoidance of subdivi-
sion which would involve unnecessary environmental degradation ** *.Iq
Subsection (2) requires the department of community affairs to
prescribe minimum requirements for local government subdivision
regulations, including ''criteria for the content of the environ-
mental assessment required by this act .I1 Subsection (3) provides
that this "environmental assessment" must be submitted to the govern-
ing body by the subdivider. Subsection (4) describes the environ-
mental assessment which emphasizes research as to water, sewage,
soil and local services. While these factors may be among the more
significant immediate environmental problems created by a sub-
division, an assessment of them does not approach the scope of
the inquiry required by MEPA section 69-6504, R.C.M. 1947.
!!ILK chermore , there is no irreconcilable repugnancy be tween
these d c c s which would render either the Subdivision and Platting
Act or MEPA a nullity. It is suggested the district court's
judgment leads to the proposition that the Department could "vetot'
a local subdivision approval solely on the basis of its EIS ---
in direct contravention of the intent of the Subdivision and
Platting Act. While this "veto" prospect is feasible, two points
are disregarded by the argument. First, MEPA was enacted to
mitigate environmental degradation "to the fullest extent possible".
Second, MEPA does not call for a halt to all further development;
its express direction to agencies is to "utilize a systematic,
irtterdisciplinary approach" to foster sound environmental planning
and decision making. A state agency acting pursuant to this
directive does not invoke the specter of state government vetoing
viable local decisions. The concurrent functions of local and state
governments with respect to environmental decisions serve to enhance
the environmental policy expressed in all of the statutes here
considered, that action be taken only upon the basis of well-informed
decisions.
Thus, the statutes must be read together as creating a
complementary scheme of environmental protection. As stated in
Fletcher v. Paige, 124 Mont. 114, 119, 220 P.2d 484:
"The general rule is that for a subsequent
statute to repeal a former statute by implication,
the previous statute must be wholly inconsistent and
incompatible with it. United States v. 196 Buffalo
Robes, 1 Mont. 489, approved in London Guaranty &
Accident Co. v. Industrial Accident Board, 82 Mont.
304, 309, 266 Pac. 1103, 1105. The court in the latter
case continued: 'The presumption is that the Legislature
passes a law with deliberation and with a full knowledge
of all existing ones on the same subject, and does not
intend to interfere with or abrogate a former law relating
to the same -matter unless the repugnancy between the two is
irreconcilable. "'
See: City of Billings v. Smith, 158 Mont. 197, 490 P.2d 221;
State ex rel. Esgar v. District Court, 56 Mont. 464, 185 P. 157.
Support for our interpre~ationof the scope of MEPA is found
in a Leading federal case interpreting the NEPA. In Colvert Cliffs'
Coordinating Committee, Inc. v. United States Atomic Energy Commis-
sion, 449 F.2d 1109, 1112, 17 ALR Fed 1 (D.C.Cir. 1971), regulations
proposed by the Atomic Energy Commission (AEC) were challenged on
the basis that the proposed regulations did not adequately provide
for consideration of all environmental factors as mandated by NEPA.
The AEC argued that its authority extended only to nuclear related
matters and that it was prohibited from independently evaluating
and balancing environmental factors which were considered and certi-
fied by other federal agencies. The Calvert cliffs' court found the
AEC'S interpretation of NEPA unduly restricted, stating:
"NEPA * * * makes environmental protection a part
of the mandate of every federal agency and department.
The Atomic Energy Commission, for example, had contin-
ually asserted prior to NEPA, that it had no statutory
authority to concern itself with the adverse environmental
effects of its actions. Now however, its hands are no
longer tied. It is not only permitted, but compelled, to
take environmental values into account."
The district court was correct in treating MEPA as the
controlling statute in this case.
The district court held the Revised EIS does not comply
procedurally with MEPA on eight separate grounds. The court expressly
declined to venture into a review of the substantive merits of the
Department's reasoning and conclusions.
A preliminary question is the inquiry into the proper scope
of review of the Revised EIS by the courts. Because MEPA is modeled
after NEPA, it is appropriate to look to the federal interpretation
of NEPA. This Court follows the rule found in Ancient Order of
Hiberians v. Sparrow, 29 Mont. 132, 135, 74 P. 197:
"'* * that the construction put upon statutes by the
courts of the state from which they are borrowed is
entitled to respectful consideration, and * * * only
strong reasons will warrant a departure from it."'
Again, in State v. King Colony Ranch, 137 Mont. 145, 151, 350
"The State Board of Equalization was and is
warranted in following the Federal interpretation of
the language which the Legislature of this state adopted
from the Act of Congress .I1
See: Cahill-Mooney Construction Co. v. %
4 140 Mont. 464,
373 P.2d 703; Roberts v. Roberts, 135 Mont. 149, 338 P.2d 719;
Lowe v. Root, 166 Mont. 150, 531 P.2d 674, 32 St.Rep. 122.
In determining the proper scope of judicial review of
environmental impact statements under NEPA, the federal courts have
framed the question in terms of whether NEPA is merely a procedural
statute or whether it is a substantive statute creating substantive
duries reviewable by the courts. See Note:: The Least Adverse
Alternative Approach to Substantive Review under NEPA, 88 Harvard
Law Review 735 (1975). However because the district court ruled
on procedural grounds, we limit our inquiry to procedural matters.
The United States Supreme Court recently stated in Aberdeen
& Rockfish R.R.Co. v. SCRAP, 422 U.S. 289, 95 S.Ct. 2336, 45 L ed
"* * * NEPA
does create a discreet procedural
obligation on government agencies to give written
consideration of environmental issues in connection
with certain major federal actions * * *."
In Calvert Cliffs', supra, (449 F.2d 1109, 1115), the
District of Columbia Court of Appeals stated:
"* * * But if the decision was reached procedurally
without individualized consideration and balancing of
environmental factors---conducted fully and in good
faith---it is the responsibility of the courts to reverse.
* * *"
The Ninth Circuit Court of Appeals firmly bases its
reviewing standard on the federal Administrative Procedure Act.
Lathan v. Brinegar, 506 F.2d 677 (1974); Cady v. Morton, 527
F.2d 786 (1975); Trout Unlimited v. Morton, 509 F.2d 1276, 1282,
1283 (1974). In Trout Unlimited the court expanded on its explan-
ation:
"The 'without observance of procedure required
by law' ยง706(2)(D) standard, however, is less helpful
in reviewing the sufficiency of an EIS than one might
wish * * *.
"It follows, therefore, that in determining
whether the appellees prepared an adequate EIS we
will be guided in large part by 'procedural rules'
rooted in case law. * * * All such rules should be
designed so as to assure that the EIS serves sub-
stantially the two basic purposes for which it was
designed. That is, in our opinion an EIS is in
compliance with NEPA when its form, content and
preparation substantially (1) provide decision-makers
with an environmental disclosure sufficiently detailed
to aid in the substantive decision whether to proceed
with the project in the light of its environmental
consequences, and (2) make available to the public,
information of the proposed project' s environmental
impact and encourage public participation in the
development of that information."
We are also mindful that the policies set forth in section
69-6503, R.C.M. 1947, are to be implemented by state agencies in
accordance with sections 69-6504(a) and 69-6507, R.C.M. 1947.
In light of the foregoing, the scope of judicial review of
the Revised EIS in this case is limited to a consideration of
whether the Department provided a sufficiently detailed consideration
and balancing of environmental factors which will ensure that the
procedure followed will give effect to the policies of MEPA, aid
the Department in decision making, and publicize the environmental
impact of its action.
We will consider each factor of the Revised EIS found
legally Jeficient by the district court in the sequence set forth
in its opinion.
The district court held the Department failed to include
in the Revised EIS anything rising to the dignity of an economic
analysis, as required by MEPA and by House Joint Resolution No. 73,
approved March 16, 1974. A joint resolution is not binding as
Law on this Court, but we give it consideration as a clear mani-
festation of the legislative construction of MEPA. State v. Toomey,
135 Mont. 35, 335 P.2d 1051; State ex rel. Jones v. Erickson, 75
Mont. 429, 244 P . 287. House Joint Resolution No. 73 states in
relevant part :
"WHEREAS, it is a matter of serious concern to
the legislature that this enactment [MEPA] be fully
implemented in all respects,
"NOW, THEREFORE, BE IT RESOLVED ***
"That all agencies of state government are
hereby directed to achieve forthwith the full im-
plementation of the Montana Environmental Policy
Act including the economic analysis requirements of
sections 69-6504 through 69-6514 * *
* and
'I* **
that economic analysis shall accompany envir-
orlmental impact statements as required by the fore-
going sections of the act and shall encompass an analysis
of the costs and benefits to whomsoever they may accrue,
including considerations of employment, income, investment,
energy, the social costs and benefits of growth, oppor-
*
tunity costs, and the distribution effects * *."
With the exception of a discussion of educational costs, the
Revised EIS contains scant economic analysis. The Department
seeks to explain this away with a reference to the function of local
governing bodies in compiling economic data, and states it would
be a duplication of effort for the Department to so engage itself.
Earlier in this opinion we discussed this attempt to circumvent
the intent of MEPA as expressed by the legislature---in this instance
as recen~lyas 1974. The Department may not abdicate its duties
under MEPA to local governments.
The cost-benefit analysis required by MEPA, as construed
by the legislature, encompasses a broad consideration of several
factors categorized in House Joint Resolution No. 73, approved
March 16, 1974. A reasonsonable cost-benefit economic analysis
undertaken pursuant to these criteria would, in effect, accomplish
most of the purposes sought to be served by an environmental impact
statement. Here, for example, the Revised EIS asserts that
Beaver Creek South will provide necessary housing for many em-
ployees at nearby Big Sky of Montana. This comment, however, is
not accompanied by any data to support the conclusion that Big Sky
employees could afford, or would desire, to live at Beaver Creek
South. In other words, the Revised EIS does not consider or
disclose the approximate costs of the residential units, the
average incomes of Big Sky employees, or even the likelihood that
this projected housing use will come to pass. Such data is con-
templated by MEPA.
The Department clearly ignored its duties to provide an
economic analysis in its Revised EIS, as the district court found.
Also the cooperative inter- and intra-governmental approach fostered
by MEPA section 69-6503, R.C.M. 1947, should encourage the free
exchange of data compiled by local and state agencies; if the local
government prepares an economic analysis, such could be incorporated
as part of the Department's environmental impact statement.
he gist of the Revised EIS, p.23, with respect to
aesthetic considerations is demonstrated by its comments on visual
impact :
"A visual i m p d c t would certainly result from the
proposed development. The severity of this visual
impact is purely speculation, and the desirability is
a matter of personal aesthetic values.
"* * * Any development, including the proposed Beaver
Creek South, placed within this scenic canyon setting
would be considered aesthetically offensive by a
majority of people.1 1
Again, the Revised EIS, p. 24, affirms that visual impact is a
matter of "speculation" because "Economists have not developed an
acceptable process to place an economic valuation on such intangibles
as aesthetics .I1
This latter comment betrays a fundamental weakness of the
lleparcnlent's approach to its responsibilities under MEPA. In
decrying the absence of a precise quantitative or qualitative
measure, the Department ignores the recognition of this variable
factor in section 69-6504(b) ( 2 ) , as one which must "be given
appropriate consideration in decision making along with economic
and technical considerations". (Emphasis supplied). Under section
6 9 - 6 5 0 4 (b) (3) (i) , the Department is required to prepare a detailed
statement on "the environmental impact of the proposed action" and
visual impact falls within the meaning of this subsection. There is
no detailed description of the design of the proposed residential
units, the compatability of the architecture with the surrounding
landscape, the obstruction or availability of views, or the relation-
ship of the open spaces to these factors. The Revised EIS comments
i this regard are not sufficiently detailed under any standard
n
conceivable to give meaning to the act or inform decision makers and
the public of the probable aesthetic consequences of the development.
Section 69-6504(b) (3) (iii) , R.C.M. 1947, requires an
environmental impact statement to contain "alternatives to the
proposed action". Section 69-6504(b) ( 4 ) , R.C.M. 1947, requires
II
agencies to study, develop and describe appropriate alternatives
to recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available re-
sources". The latter section appears to be operable whether or
not an environmental impact statement is prepared. Trinity
Episcopal School Corporation v. Romney, 8 ERC 1033, 523 F.2d 88,
(2d Cir. 1975). The district court correctly concluded the sub-
section (b) (4) description is to be included in a subsection (b) (3)
environmental impact statement.
However, the district court erred in its opinion that
discussion of alternatives in the Revised E I S is "patently inade-
quate". The district court merely viewed the last two pages of
the Revised E I S under the "Alternatives1'heading, wherein various
alternatives are essentially stated as conclusions. This review
ignores the reasonable discussion of alternatives contained in
other portions of the Revised E I S regarding such factors as water
supply, wastewater, and police and fire protection. As stated
by the Ninth Circuit Court of Appeals in Life of the Land v.
Brinegar, 485 F.2d 460, 472 (1973):
"NEPA's ' alternatives' discussion is subject to a con-
struction of reasonableness. * **
Certainly, the statute
should not be employed as a crutch for chronic faultfinding.
Accordingly, there is no need for an E I S to consider an
alternative whose effect cannot be reasonably ascertained,
and whose implementation is deemed remote and speculative.1 I
The discussion of alternatives in the Revised E I S viewed in
its entirety is sufficiently detailed to comply with the procedural
requirements of MEPA.
The Revised E I S c o n t a i n s r e p r o d u c t i o n s of l e n g t h y comments
Erom t h e s t a t e Department of F i s h and Game and t h e G a l l a t i n
Sportsmen's A s s o c i a t i o n r e g a r d i n g impact of t h e proposed develop-
ment on w i l d l i f e i n t h e G a l l a t i n Canyon. Other comments a r e a l s o
mentioned. - of
All t h e comments i n d i c a t e d t h a t an a d v e r s e e n v i r o n -
mental e f f e c t on w i l d l i f e c o u l d n o t be avoided i f t h e p r o p o s a l
were t o be implemented. S e c t i o n 6 9 - 6 5 0 4 ( b ) ( 3 ) ( i i ) , R.C.M. 1947.
The Revised EIS, p. 2 8 , r a t h e r than d e a l i n g w i t h a c o n s i d e r a t i o n
o f t h e s e a d v e r s e e f f e c t s , c o n t a i n s a p r o t r a c t e d d i s c u s s i o n of t h e
l e g i s l a t i v e h i s t o r y of t h e S u b d i v i s i o n and P l a t t i n g Act and t h e
Local l e v e l h e a r i n g s on t h e i n s t a n t p l a t p r o p o s a l , and concludes
by s t a t i n g :
" T h e r e f o r e , t h e r e i s an o p p o r t u n i t y t o e f f e c t
r e j e c t i o n o r r e v i s i o n of a s u b d i v i s i o n f o r e n v i r o n -
mental r e a s o n s a t t h e county l e v e l . T h i s would appear
t o s a t i s f y t h e s p i r i t i n which t h e Montana Environmental
P o l i c y Act was enacted."
W f i n d t h i s j u s t i f i c a t i o n f o r i n a c t i o n and ad hoc agency
e
" l e g i s l a t i n g " t o be i n a p p r o p r i a t e i n an environmental impact s t a t e -
ment. The Department's r e s p o n s i b i l i t y i n pursuing i t s d u t i e s
under MEPA i s t o c o n s i d e r a l l r e l e v a n t environmental v a l u e s a l o n g
with o t h e r f a c t o r s and come t o a c o n c l u s i o n w i t h r e g a r d t o them.
Although we do n o t s u g g e s t t h e Department h a s t h e i n t e r n a l r e s o u r c e s
and e x p e r t i s e w i t h which t o expand upon o r r e f u t e t h e w i l d l i f e
comments r e c e i v e d from o u t s i d e s o u r c e s , we do h o l d i t i s w i t h i n t h e
~ e p a r t m e n t ' sp r o v i n c e under MEPA t o r e a c h its d e c i s i o n based upon
a procedure which encompasses a c o n s i d e r a t i o n and b a l a n c i n g of
environmental f a c t o r s . The d i s t r i c t c o u r t was c o r r e c t i n h o l d i n g
t h a t t h e mere t r a n s m i t t a l of comments a d v e r s e t o t h e p r o p o s a l i s
insufficient .
- 29 -
The department of Highways commented on t h e e f f e c t o f t h e
proposed s u b d i v i s i o n w i t h r e s p e c t t o t r a f f i c flow on U.S. Highway
191. The Department of Highways s t a t e s t h e Beaver Creek South
S u b d i v i s i o n " w i l l g e n e r a t e a l a r g e amount of t r a f f i c " , citing
f i g u r e s , and s t a t e s t h i s i n c r e a s e d volume " w i l l n o t w a r r a n t t h e
c o n s t r u c t i o n of a f o u r l a n e f a c i l i t y i n t h i s v i c i n i t y . " Several
c h a l l e n g i n g comments c a l l f o r more d e t a i l e d and a c c u r a t e informa-
t i o n , b u t t h e Revised EIS, a t p. 3 3 , s t a t e s t h e Department of
Highways r e a f f i r m s i t s s t a t e m e n t and on t h a t b a s i s s a y s :
"* *
* Beaver Creek South would n o t be t h e development
t h a t would make r e c o n s t r u c t i o n [of t h e highway] n e c e s -
sary. vI
The d i s t r i c t c o u r t found t h i s p o r t i o n of t h e Revised EIS
l a c k i n g because t h e t r e a t m e n t of highways was "incomplete" , there
was no d i s c u s s i o n of t h e e f f e c t of f u t u r e highway c o n s t r u c t i o n ,
and a l s o no d i s c u s s i o n of cumulative s o c i a l , economic and e n v i r o n -
mental impacts of c o n t i n u e d development i n t h e G a l l a t i n Canyon,
W b e l i e v e t h e highway d i s c u s s i o n i s p r o c e d u r a l l y adequate
e
and t h a t t h e d i s t r i c t c o u r t ' s o p i n i o n on t h i s p o i n t r e q u i r e s an
unwarranted c l a i r v o y a n c e on t h e p a r t of t h e Department. In
c o n t r a d i s t i n c t i o n t o t h e w i l d l i f e d i s c u s s i o n where t h e agency
w i t h t h e g r e a t e s t e x p e r t i s e i n t h e f i e l d (Department of F i s h and
Game) r a i s e d s e r i o u s a d v e r s e q u e s t i o n s which were n o t a d d r e s s e d ,
h e r e t h e Department i s j u s t i f i e d i n r e l y i n g on t h e Department of
Highways p r o j e c t i o n s f o r f u t u r e t r a f f i c flow. The p u b l i s h e d comments
and accompanying d i s c u s s i o n demonstrate a r e a s o n a b l e c o n s i d e r a t i o n
and b a l a n c i n g of environmental f a c t o r s .
Comments of Montana Power Company i n t h e Revised EIS
i n d i c a t e t o t h e Department t h a t t h e company would have "no
problem" i n supplying t h e e l e c t r i c i t y needs of t h e proposed sub-
division, and that this capacity could be met with present trans-
mission lines. The Revised EIS notes at p. 36, that the proposed
subdivision "would be a contributing factor toward any future
necessity for additional service." The adverse comments to this in
the Revised EIS concentrate on the issue of whether or not Montana
Power Company is counting on the use of a proposed new power line
into the canyon from the west. The Department's conclusion does
not dispute the information provided it by the power company.
The district court held that this analysis is superficial at best.
The energy needs of the Gallatin Canyon with respect to
Beaver Creek South, and future development, are sufficiently con-
sidered and balanced in the Revised EIS. The Department, through
its inclusion in the Revised EIS of conflicting comments, cannot
be expected to provide detail beyond that which is reasonably
foreseeable. The Department reasonably concluded the proposed
development would contribute to the total power needs of the area
and to any future necessity for additional service. This con-
stitutes procedural compliance with MEPA in that the Departmental
decision makers are made aware of the environmental consequences
regarding energy, and the same information is made available to
other branches of government and the public. Trout Unlimited v.
Morton, 509 F.2d 1276.
The district court held that the "actual necessity" for
the proposed subdivision must be analyzed. As the appellants
correctly point out, there is no provision in MEPA which requires
a study of necessity. Therefore, the district court's opinion on
this point is erroneous.
We point out, however, the necessity of the project was
gratuitously introduced into the Revised EIS by the Department
in order to publishtherein a letter by Big Sky of Montana, Inc.
which suggests that the Beaver Creek South subdivision will
alleviate a housing shortage for employees at Big Sky. In response
to several challenging comments received by the Department, the
Revised EIS then reverses its earlier position by stating that the
objections may be valid, but they have no bearing on whether or not
to approve the plat.
This turnabout of the Department within the Revised EIS
evidences an attitude that an environmental impact statement is
simply window dressing to pacify opponents of the ~epartment'sactions.
MEPA was not enacted to provide the government and public with project
justifications by state agencies. We hold that if the Department deems
the necessity of the development to be a critical factor in its
analysis of the impact of the proposed subdivision, then it is bound
at least to make a reasonable consideration of the necessity of the
project in light of the reasonable objections made to the necessity
premise.
The district court held that cumulative impacts must be
discussed in greater detail. The Revised EIS contains a detailed
analysis of the cumulative impact of increasing the nutrient load
in the Gallatin River from the subdivision's domestic water sources.
No other cumulative impacts are discussed in the same portion of
the Revised EIS. However, the Revised EIS as a whole contains several
references to anticipated future environmental impacts in the vicinity,
and a reasonably detailed summary of the pending comprehensive plan
for the Gallatin Canyon developed by the Gallatin Canyon Planning
Study Committee. This constitutes a sufficiently detailed consider-
ation and disclosure regarding "the relationship between local short-
term uses of man's environment and the maintenance and enhancement of
long-term productivity". Section 69-6504(b) (3) (iv) , R.C.M. 1947.
I n summary, t h e Revised E I S i s p r o c e d u r a l l y i n a d e q u a t e i n i t s
a n a l y s e s of economic c o s t s and b e n e f i t s , a e s t h e t i c c o n s i d e r a t i o n s ,
and w i l d l i f e f a c t o r s . T h i s h o l d i n g i s n o t t o be c o n s t r u e d a s a
mandate f o r t e c h n i c a l p e r f e c t i o n ; r a t h e r , we f i n d simply t h a t t h e
Revised EIS does n o t s u f f i c i e n t l y c o n s i d e r and b a l a n c e t h e f u l l
range of environmental f a c t o r s r e q u i r e d under t h e terms of MEPA.
I f t h e p o l i c y and purpose of M P a r e t o have any p r a c t i c a l meaning,
EA
s t a t e a g e n c i e s must perform t h e i r d u t i e s p u r s u a n t t o t h e d i r e c t i v e s
c o n t a i n e d i n t h a t Act.
Having found t h a t t h e d i s t r i c t c o u r t c o r r e c t l y d e c l a r e d t h e
Revised EIS t o be p r o c e d u r a l l y inadequate and v o i d , t h e f i n a l
question i s whether p l a i n t i f f A s s o c i a t i o n s a r e e n t i t l e d t o i n j u n c -
t i v e r e l i e f a s o r d e r e d by t h e d i s t r i c t c o u r t .
The r u l e i s w e l l s e t t l e d t h a t i n j u n c t i o n a c t i o n s by p r i v a t e
p a r t i e s a g a i n s t p u b l i c o f f i c i a l s must be based upon i r r e p a r a b l e i n -
j u r y and a c l e a r showing of i l l e g a l i t y . S t a t e e x r e l . Keast v .
Krieg, 145 Mont. 521, 402 P.2d 405. Environmental damage a s a l l e g e d
b y t h e A s s o c i a t i o n s i s an i n j u r y w i t h i n t h e scope of t h e j u d i c i a l
cognizance. Furthermore, t h e preceding d i s c u s s i o n i n d i c a t e s t h e
Revised EIS does n o t meet t h e minimum r e q u i r e m e n t s of t h e law under
M P and i s c l e a r l y i l l e g a l .
EA
The Department and Beaver Creek a l l e g e an i n j u n c t i o n i s barred
b y s e c t i o n 93-4203(4), R.C.M. 1947, which s t a t e s :
II
An i n j u n c t i o n cannot be g r a n t e d :
"k **
" ( 4 ) t o p r e v e n t t h e e x e c u t i o n of a p u b l i c s t a t u t e ,
by o f f i c e r s of t h e law, f o r t h e p u b l i c b e n e f i t . "
This argument overlooks t h e cases which hold t h a t i l l e g a l
a c t i o n s by public o f f i c i a l s may be enjoined. I n Larson v. The
S t a t e of Montana and t h e Department of Revenue, 166 Mont. 449, 534
P.2d 854, 32 St.Rep. 377, 384, t h i s Court overruled t h e d i c t a i n
Keast t o t h e e f f e c t t h a t an i n j u n c t i o n a g a i n s t public o f f i c e r s
was banned by s e c t i o n 93-4203(4), s t a t i n g :
"The p r e f e r a b l e law i s enunciated i n Hames
v. City of Polson, 123 Mont. 469, 479, 215
P.2d 950, where i t was held:
If'* ** public bodies and public o f f i c e r s may
be r e s t r a i n e d by i n j u n c t i o n from proceeding
i n v i o l a t i o n of t h e law, t o t h e p r e j u d i c e of
t h e p u b l i c , o r t o t h e i n j u r y of i n d i v i d u a l
rights * * *. "'
W a f f i r m t h e d i s t r i c t c o u r t holding t h a t i n j u n c t i v e
e
r e l i e f i s proper i n t h i s case.
The summary judgment i s affirmed.
- - 34
.............
Justice.
M r . J u s t i c e Gene B . D a l y d i s s e n t i n g :
Time being s h o r t and t o p r e c l u d e a n o t h e r o p i ~ l i o nI
a g a i n d i s s e n t and comment t h a t my o r i g i n a l o b j e c t i o n t o
l e g a l p r i n c i p l e s concerning s t a n d i n g t o b r i n g s u i t have n o t
been d i s c u s s e d n o r answered. ,,2
,'