(specially concurring).
I concur with the result of the other judges in this matter, but not with the reasons stated.
To permanently restrain the operation of the defendant is an extremely harsh remedy and should only be used as a last resort after all else has failed.
The Bliss case cited in the main opinion, states the question: “Can the defendant and the plaintiffs live together?
*363The majority states that the operation of the defendant has changed. That the acts complained of have terminated. Only one act, the defective scrubber, has changed. Even since the hearing of April 1966, the Aero-Tech scrubber is gone. A subsequent scrubber designed and built by the defendant, apparently on the design of the Aero-Tech scrubber, has been scrapped. A temporary Teller scrubber operated for six months and has been scrapped. It is not clear if the defective stack has been repaired or replaced. The juncture of the kiln and the stock or scrubber was leaking so that the scrubber had no chance to scrub the gases. The testimony before the District Court was to the effect that a new gasket arrangement had been recently installed, but then only on one of the kilns and one had not been repaired. Also, throughout the history of the operation of this defendant, since it started in Garrison, and before in Butte, improper maintenance and improper use of materials necessary for the operation of the scrubber system has been a chief factor in the emission of the fluorides and also in the destruction of the scrubber systems.
All this testimony was before Judge Lessley in the District Court. He finally decided not to close the operation. We were informed at the oral argument on this appeal that the new scrubber is being tested by the State Board of Health.
The question in this lawsuit is the safe operation of this plant by the defendant. In my opinion this question has not become moot and certainly it is not merely academic to the plaintiffs in this action.
However, because circumstances have changed as they have been set out by the majority opinion and, further because the executive branch of government through the State Board of Health is policing the operation of the defendant, I feel that the judgment of the District Court should stand.
If there is a violation of the injunction, it can then be brought to the attention of Judge Lessley in the District Court. *364It is difficult to see how this can be accomplished if' the majority rule is adhered to.
That is to say, if the operation has become moot and merely academic, what recourse do the plaintiffs have for violation of Judge Lessley’s restraining order? It may be true that equity is not bound by cast iron rules, but in order to avoid chaos and for anyone to be able to predict with any certainty what must be done in ease of a violation of Judge Lessley’s order, the equity court must be a court of rule.