May 27 2009
DA 08-0368
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 189N
THE RATTLESNAKE COALITION, LOREEN FOLSOM,
WILLIAM HOLLENBAUGH and DANIEL JENSEN,
Plaintiffs and Appellants,
v.
CITY OF MISSOULA, STATE OF MONTANA, and
MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY,
Defendants and Appellees.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 05-1087
Honorable Douglas G. Harkin, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Carolyn Kay Vinci, Attorney at Law; Missoula, Montana
Craig Murdock, Attorney at Law; San Francisco, California
For Appellees:
Steve Bullock, Montana Attorney General; Helena, Montana
John F. North, Carol E. Schmidt; Special Assistant Attorneys General;
Helena, Montana
James P. Nugent, City Attorney; Missoula, Montana
Submitted on Briefs: April 15, 2009
Decided: May 27, 2009
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 In filing this suit for injunctive and mandatory relief, the Rattlesnake Coalition
(hereinafter “the Coalition”) argued that the 1999 Wastewater Treatment Plan’s
environmental review document and the Montana Department of Environmental
Quality’s (MDEQ) 2007 Environmental Assessment (EA) failed to comply with the
Montana Environmental Policy Act (MEPA), § 75-1-101 et seq., MCA. In November,
2007, the District Court denied the Coalition’s Motion for Partial Summary Judgment
and in July, 2008, granted summary judgment in favor of the City of Missoula
(hereinafter “the City”) and the MDEQ, concluding the Coalition’s challenge to the 1999
review document is barred by the doctrine of laches. It further concluded the 2007 EA
complied with the MEPA, § 75-1-101 et seq., MCA. The Coalition appeals from the July
2008 order.
¶3 In its order granting summary judgment, the District Court found that the 2007 EA
prepared for the City’s proposed sewer project was a stand-alone document, therefore the
challenge to the EA prepared in 1999 was either barred by laches, (see Montana
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Wilderness Ass’n v. Fry, 310 F. Supp. 2d 1127, 1140) (D. Mont. 2004) for a discussion of
the laches analysis); or, since the projects addressed in the 1999 EA are now mostly
completed, a controversy no longer exists regarding the 1999 EA, and the issue was
therefore moot.
¶4 As to the 2007 EA, the Coalition argued that it violated MEPA because it failed to:
(1) address cumulative impacts, and (2) analyze alternatives. The District Court
concluded the Coalition had failed to raise any genuine issues of material fact; that the
2007 EA complied with the MEPA given that MDEQ had addressed cumulative impacts
within the 2007 EA and had addressed five alternatives to the proposed action, including
an extensive in-depth analysis of on-site treatment that the Coalition had advocated.
¶5 In its summary judgment order of July 2, 2008, the court references its November
29, 2007 Order, which concludes that the Coalition had “not met their burden of proof”
[to demonstrate that the EA is inadequate] and that “MDEQ’s conclusion that there are no
significant adverse impacts of the sewer project and, therefore, that an environmental
impact statement is not required cannot be said to be arbitrary, capricious, or unlawful.”
See Friends of the Wild Swan v. Dept. of Nat. Resources & Conservation, 2000 MT 209,
¶ 27, 301 Mont. 1, 6 P.3d 972.
¶6 We have determined it is appropriate to decide this case pursuant to our Order of
February 11, 2003, amending Section 1.3 of our 1996 Internal Operating Rules and
providing for memorandum opinions. It is manifest on the face of the briefs and the
record before us that the appeal is without merit because the District Court correctly
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concluded that there are no genuine issues as to material facts. Further, the District Court
correctly interpreted settled Montana law and determined that the defendants were
entitled to judgment as a matter of law.
¶7 We affirm the judgment of the District Court.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ PATRICIA COTTER
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