State Ex Rel. Department of Health & Environmental Sciences v. Green

No. 86-453
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

STATE OF MONTANA, ex rel., DEPARTMENT
OF HEALTH AND ENVIRONMENTAL SCIENCES,
Plaintiff and Appellant,
-vs-
THOMAS GREEN, d/b/a GREEN'S SALVAGE,
Defendant and Respondent.

APPEAL FROM: The District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Katherine J. Orr, Dept. of Health, Helena, Montana
For Respondent:
Thomas Green, pro se, Wolf Point, Montana

Submitted on Briefs: March 12, 1987
Decided: June 29, 1987

Filed :JUN 2 9 1987

*#
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.

The State of Montana ex rel. Department of Health and
Environmental Sciences appeals an order in favor of Green's
Salvage on a charge of failure to obtain a license for
Green's motor vehicle wrecking facility and for failure to
shield the facility from public view.
We reverse and remand.
There appear to be three main issues on appeal. They
are :
1. Did the trial court err in finding that Green's
Salvage business was not within "public view" and that
certain portions of the junk yard are exempt from shielding
requirements?
2. Did the trial court err when it failed to find a
violation by defendant of a separate statute requiring him to
obtain a license to operate or does defendant have an
inalienable right to acquire junk vehicle property without a
license and without shielding?
3. Does defendant's practice of not purchasing junk
cars from insurance companies make a license unnecessary?
The defendant, Thomas Green, owns and operates a motor
vehicle wrecking facility approximately 3 miles west of Wolf
Point, Montana. From the record we have before us it appears
that Green collected some junk cars but did not begin to
significantly accumulate junk vehicles until 1978. At
present the facility contains approximately 1,200 junk
vehicles covering 35 acres of land. Green's is one of the
largest junk vehicle yards in the State.
The yard complained of is situated at a lower elevation
than and approximately 4,000 feet to the south of U.S.
Highway 2, a main access road into Wolf Point for interstate
traffic from the west. It also sits to the north of and in
close proximity to the Bureau of Indian Affairs Highway Route
One, the so-called "Indian Highway," which angles around the
junk vehicle yard to the west, south, and east sides of the
facility. Both U.S. Highway 2 and the "Indian Highway" are
paved public roads.
The Department contends that the wrecking facility
should be shielded around its entire perimeter since the
facility can be seen from both of the public roads from
various directions. Green has been operating without a
license for his motor vehicle wrecking facility since he
began his operation. He submitted various license
applications over the years but each application was found to
be incomplete or contain unworkable solutions to the
shielding requirement. In 1985, Green sent the required
$50.00 fee to obtain his license which was also denied
because the plan for shielding his facility was incomplete
and inadequate.
Since 1982, Department employees, Larry Mitchell and
John Geach, charged with implementing the Motor Vehicle
Recycling and Disposal Act and Junk Yards Along Roads Act,
worked with Green to help him come into compliance by
assessing Green's yard on four different occasions and by
providing detailed compliance advice.
They worked with Green for several years but he did not
complete any of his various plans for complying with the
shielding requirements. From letters dated September 30,
1982, June 15, 1983, April 3, 1985, and July 31, 1985, Green
was advised that he was operating without a license and
needed to obtain one. In the letters of October 19, 1982,
June 15, 1983, April 3, 1985, and July 31, 1985, Green was
advised that his application was incomplete or inadequate.
 The Department appeals the judgment for Green which
found his facility was not within public view from U.S.
Highway 2; that the facility could not be considered to be an
eyesore; and that Green need not obtain a license. There is
some confusion in the record because the trial court appears
to base its decision at least in part on the visual
inspection of the premises. However, subsequent to entry of
these findings, in its order of October 20, 1986, the Court
agreed to limit the record to oral and written evidence - not
including the visual inspection since the court reporter did
not prepare a verbatim transcript of the testimony given
during the visual inspection by car. We look to the record
as it was submitted to this Court.
The Department first argues the lower court erred in
finding Green's Salvage business was not in "public view."
It claims that the preponderance of the evidence shows that
the defendant's business was within public view.
In a Preliminary Environmental Review dated July 1, 1985
the Department stated "[tlhis facility is visible from two
public roads; U.S. Highway 2 to the north and the Indian
Highway to the east, south and west. All sides of this
facility must be properly shielded from public view."
U.S. Highway -
2
The trial court order stated that by driving down U.S.
Highway 2:
Commencing where 6th Avenue North intersects with
U. S. Highway No. 2, you go West on Highway No. 2
for 1.9 miles before Green's Salvage can be
noticed. Then for a distance of 3.2 miles the
salvage yard can be noticed, then for a distance of
.6 miles it is out of view and then can be noticed
again for a short distance of .2 of a mile... The
facility could be noticed but not within "public
view" as contemplated by ARM 16.14.202(1).
 Section 16.14.202 (1) of the Administrative Rules of
Montana states:
All junk vehicles, motor vehicle wrecking
facilities, and county motor vehicle graveyards are
required to be shielded from public view. Public
view is any point six feet above the surface of the
center of any public road from which the wrecking
facility and junk vehicles can be seen.
Department employees Mitchell and Geach on a number of
occasions viewed Green's Salvage from U.S. Highway 2. Both
have testified that Green's Salvage is in public view from
U.S. Highway 2.
Green neither admits nor denies that his facility can be
seen from U.S. Highway 2. He testified that he failed to
obtain a license because of certain individual property
rights guaranteed by the Constitution and not because of the
cost of shielding his facility. The defendant gave the
following written response to an interrogatory posed by the
Department:
INTERROGATORY NO. 12: (a) Please state whether it
is your position that your facility cannot be seen
from Highway 2. (b) If you admit that your
facility can be seen from any point on Highway 2,
please describe whether you believe it should be
shielded to some degree. (c) If you object to a
shield from public view from Highway 2, please
state the basis for your objection.
ANSWER NO. 12: (a) What can be seen is not always
comprehended and what is sometimes seen and
comprehended is not always seen. At night, during
blizzards and due to heavy fog my business cannot
always be seen from Highway 2. (b) I do not
believe shielding is necessary, neither do the
approximately 2,500 people that signed the
petition. (c) Prejudice on the part of the State
of Montana over my choice of property to acquire
and possess.
 In the judge's chambers prior to trial, the Department
contends Green described that all but 50 cars can be seen
from U.S. Highway 2.
The "Indian Highway"
The transcript does not disclose what the 1ndian ~ighway
is, but a letter to the Solid Waste Bureau from the United
States Department of the Interior attached to the Appellant's
brief indicates that it is a public road built with federal
funds and "in accordance with 25 Code of Federal Regulations,
Part 170.8, free public use is required."
From the record it appears that the Green facility can
be publicly viewed from the Indian Highway as claimed by the
Department.
However, the lower court concluded:
In addition the court finds that the Indian Highway
was built after the wrecking facility and the law
does not apply to the Indian Highway, and
therefore that is not a consideration before the
Court. If a person were offended by traveling the
Indian Highway and driving by the facility, they
could detour North approximately two miles on oil
to Highway No. 2 and avoid passing by the facility
without increasing the miles traveled to Wolf
Point.
If the evidence preponderates against a trial court's
finding, this Court may review the record to evaluate the
evidence and make independent findings of fact. Hagfeldt v.
Mahaffey (1978), 176 Mont. 16, 575 P.2d 915. Such a review
of the record is proper in this case for the purposes of
determining if it preponderates against the trial court's
findings.
The testimony of the witnesses and the court's order
found that the facility could be seen from both the Indian
Highway and U.S. Highway 2. It is of no consequence to the
enforcement of the Motor Vehicle Recycling and Disposal Act
and the Junk Yards Along Roads Act, that a person might have
to have a certain eyesight acuity to identify it as a junk
yard, that a particular highway was built after the wrecking
facility was started, or that a particular highway was
thought to be an unnecessary road. These factors are not
relevant here.
The applicable laws were in effect since 1967 and apply
to Green's business which substantially began in 1978. A
review of the record discloses the preponderance of the
evidence indicates defendant's facility is in public view.
It is one of the largest facilities in the State. Defendant
has known of the laws mandating shielding compliance for
several years and has not brought his facility into
compliance at any time during the growth and expansion of his
business.
Defendant is not immune from the shielding regulations
and is required to bring his facility into compliance with
the applicable laws and regulations.
The second issue raised by Department is whether the
trial court erred when it failed to find a violation of S
75-10-511, MCA, the separate statute requiring defendant to
obtain a license to operate his motor vehicle wrecking
facility. The trial court found that defendant was eligible
to receive a license from the Department upon payment of the
statutory fee because the shielding requirements did not
apply to the defendant.
As we have found in the previous issue, the shielding
requirements do apply to the defendant's facility.
These requirements are only one aspect of operating a
motor vehicle wrecking facility within the mandates of the
law. Section 75-10-511, MCA, states that any person
operating a motor vehicle wrecking facility must obtain a
license. It states:
 (1) A person may not conduct, maintain, or operate
a motor vehicle wrecking facility ...without a
license issued by the department.

(3) An annual fee of $50 shall be paid to the
department for the license .. .

(6) The license expires on December 31 of the year
issued.
The specific requirements for obtaining a license are
set out in 5 16.14.201, Administrative Rules of Montana which
provides:
(1) Application for license to operate a motor
vehicle wrecking facility shall be made on forms
furnished by the department ...
(a) All the information requested on the
application form must be completed before the
department can act on the application.
(2) When the completed application is received,
the department is to approve the site location
before a license will be issued.
(3) Before an application will be approved and a
license to operate will be issued, the facility
must be in compliance with the shielding
requirements of ARM 16.14.202.
Defendant contends he has an inalienable right to
acquire junk vehicles on his property without a license.
While it is true that he does have certain constitutional
rights to acquire and possess real and personal property,
these property rights must be balanced with the rights of the
public which the Department is mandated to protect.
This question of balance was addressed in State of
Montana v. Cecil Bernhard (1977), 173 Mont. 464, 568 ~ . 2 d136
as follows:
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be determined by the trial court pursuant to 5 5 75-20-541 and
75-10-542, MCA.
Reversed and remanded.

We Concur:

Chief Justice

Justices
Mr. Chief Justice J. A. Turnage dissenting:
Appellant contends that he has a constitutional right
to operate his motor vehicle wrecking facility without the
statutorily-required license. This contention is not
correct.
Section 75-10-501 (7), MCA, is the statutory basis for
appellant's problem and provides:
"Public view" means any point 6 feet
above the surface of the center of a
public road from which junk vehicles can
be seen.
I have some concern that this definition meets the
constitutional test of due process when analyzed with the
statutory purpose of beautification of the state. The stat-
ute is vague in that it offers no rational guide as to what
public view may require, whether a pervasive intrusion upon
the public view or a fleeting glimpse from a high point on
the public road.
District Judge James Sorte applied common sense when he
ruled that the Green facility was not within public view from
U. S. Highway No. 2 as contemplated by the statute. A person
may have been able to espy the vehicles from Highway 2;
however, to have one ' s aesthetic senses offended thereby
would require a bent for automotive voyeurism. Apparently,
the over 2000 residents of R.oosevelt County who signed a
petition in support of Green's facility had no complaint.
The gravel country road referred to as the "Indian
Road" apparently affords a better view of the facility and
places it within the technical grasp of the rule and statute.
However, in light of the purpose of the statute to enhance
beauty, this may well be a de minimus intrusion on
regulation.
 Judge Sorte has wisely forecast the result that will
surely follow in the event of a closure of the Green facili-
ty. The approximate 1200 vehicles located there, or their
successors, would be strung out across Roosevelt County,
probably resting on knolls and prairie dog mounds in clear
public view.
The solution, not to be taken as a precedent, would be
to affirm the District Court. This would be an application
of judicial common sense and in the best interests of the
citizens of Roosevelt County.
The claim of appellant that he has a constitutional
right to operate the facility without a license is rejected.
In all events, the parties to this cause are encouraged
to continue to work out a rational solution.

Chief Justice

Mr. Justice L. C. Gulbrandson, dissenting:
I join in the dissent of

Justpce