MEIC v. Westmoreland Rosebud Mining

FILED
11/22/2023
Bowen Greenwood
CLERK OF THE SUPREME COURT

DA 22-0064 STATE OF MONTANA

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 224

MONTANA ENVIRONMENTAL INFORMATION
CTR. and SIERRA CLUB,

Plaintiffs/Appellees,

v.

WESTMORELAND ROSEBUD MINING, LLC, f/k/a
WESTERN ENERGY CO., NAT. RES. PARTNERS, L.P.,
INT'L UNION OF OPERATING ENGINEERS, LOCAL
400, and N. CHEYENNE COAL MINERS ASS’N,

Respondent-Intervenors/Appellants.
__________________________________________________

MONTANA ENVIRONMENTAL INFORMATION
CTR. and SIERRA CLUB,

Petitioners/Appellees,

v.

MONTANA DEP’T OF ENVIRONMENTAL QUALITY,

Respondent/Appellant,

MONTANA BD. OF ENVIRONMENTAL REVIEW,
WESTMORELAND ROSEBUD MINING, LLC, f/k/a
WESTERN ENERGY CO., NAT. RES. PARTNERS L.P.,
INT’L UNION OF OPERATING ENGINEERS, LOCAL
400, and N. CHEYENNE COAL MINERS ASS’N,

Respondents.
_______________________________________________

MONTANA ENVIRONMENTAL INFORMATION
CTR. and SIERRA CLUB,

Plaintiffs/Appellees,

v.

MONTANA DEP’T OF ENVIRONMENTAL QUALITY,
MONTANA BD. OF ENVIRONMENTAL REVIEW,
 Respondents,

and

WESTMORELAND ROSEBUD MINING, LLC, f/k/a
WESTERN ENERGY CO., NAT. RES. PARTNERS L.P.,
INT’L UNION OF OPERATING ENGINEERS, LOCAL
400, and N. CHEYENNE COAL MINERS ASS’N,

Respondent-Intervenors/Appellants.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Rosebud, Cause No. DV 19-34
Honorable Katherine M. Bidegaray, Presiding Judge

COUNSEL OF RECORD:

For Appellant Montana Department of Environmental Quality:

Nicholas A. Whitaker, Jeremiah Langston (argued), Department of
Environmental Quality, Helena, Montana,

For Appellant Montana Board of Environmental Review:

Amy D. Christensen, J. Stuart Segrest, Christensen & Prezeau, PLLP,
Helena, Montana

For Intervenor and Appellant Westmoreland Rosebud Mining, LLC, et al.:

John C. Martin (argued), Holland & Hart LLP, Jackson, Wyoming

Kyle A. Gray, Holland & Hart LLP, Billings, Montana

Samuel R. Yemington, Holland & Hart LLP, Cheyenne, Wyoming

For Appellees:

Shiloh Hernandez (argued), Earthjustice, Bozeman, Montana

Derf Johnson, Montana Environmental Information Center, Helena,
Montana

Roger Sullivan, McGarvey Law, Kalispell, Montana

Walton D. Morris, Morris Law Office, Charlottesville, Virginia

2
 For Amicus Curiae:

Robert L. Sterup, Brown Law Firm. PC, Billings, Montana

Argued: April 3, 2023
Submitted: May 9, 2023
Decided: November 22, 2023

Filed:

Vor-641.—if
__________________________________________
Clerk

3
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Montana Department of Environmental Quality (DEQ or Department), the Montana

Board of Environmental Review (Board), and Westmoreland Rosebud Mining, LLC

(formerly known as Western Energy Co., Natural Resources Partners L.P., International

Union of Operating Engineers, Local 400), and Northern Cheyenne Coal Miners

Association (collectively, Westmoreland), appeal a Sixteenth Judicial District Court ruling

in favor of Montana Environmental Information Center and Sierra Club (collectively,

Conservation Groups) vacating DEQ’s permit for Westmoreland’s proposed coal mine

expansion pursuant to the Montana Strip and Underground Mine Reclamation Act

(MSUMRA).

¶2 We affirm in part, reverse in part, and remand to the District Court for proceedings

consistent with this Opinion. The District Court’s order to vacate the AM4 Permit is

reinstated.

¶3 In 2009, Westmoreland applied for its fourth amendment to its Area B mining

permit (AM4 Permit) seeking to expand coal mining operations at the Rosebud mine in

Colstrip, Montana.1 Pursuant to MSUMRA, DEQ approval of the permit is conditioned on

DEQ’s determination that the proposed mining activity is “designed to prevent material

damage” to the hydrologic balance outside the permit area. Section 82-4-227(3)(a), MCA.

At the time of approval, “material damage” with respect to the protection of the hydrologic

balance was defined as:

1
For a more detailed description of the Rosebud mining operations, see Mont. Envtl. Info. Ctr. v.
Mont. Dep’t of Envtl. Quality, 2019 MT 213, 397 Mont. 161, 451 P.3d 493 (MEIC 2019).
4
 degradation or reduction by coal mining and reclamation operations of the
quality or quantity of water outside of the permit area in a manner or to an
extent that land uses or beneficial uses of water are adversely affected, water
quality standards are violated, or water rights are impacted. Violation of a
water quality standard, whether or not an existing water use is affected, is
material damage.

Section 82-4-203(32), MCA (2015).2

¶4 Area B is located within the watershed of the nearby upper East Fork Armell’s Creek

(Creek), a small watercourse with intermittent to ephemeral flows that eventually drains to

the Yellowstone River. The present appeal centers around the permit’s potential impacts

on the Creek and its alluvium. The Creek’s water quality standard designation is a C-33

surface water, which requires the Creek to be suitable for various uses including, as

relevant here, “growth and propagation of non-salmonid fishes and associated aquatic

life.” Admin. R. M. 17.30.629(1) (2017) (emphasis added). The Creek’s surface water is

not currently subject to any numerical standards for various pollutants. DEQ attainment

documents indicate the Creek has been listed as “impaired” for meeting its aquatic life

support standards.4

2
This definition has since been amended, but we look to the law at the time DEQ approved the
permit for whether it followed the law.
3
Water quality standards are established by the Board pursuant to the federal Clean Water Act,
33 U.S.C. § 1313, and the Montana Water Quality Act, Title 75, chapter 5, MCA. See MEIC 2019,
¶ 40.
4
Since at least 2006, DEQ has designated the stream as impaired and failing to achieve water
quality standards for supporting growth and propagation of aquatic life. DEQ identified excessive
salinity, measured by total dissolved solids (TDS) and specific conductivity as a cause of the
impairment and identified coal mining as an unconfirmed source of excessive salt.
See generally MEIC 2019.
5
¶5 We restate the issues on appeal as follows:

Issue One: Whether the Board of Environmental Review applied the wrong burden
of proof.

Issue Two: Whether the Board of Environmental Review improperly limited
Conservation Groups’ evidence and argument.

Issue Three: Whether the Board of Environmental Review improperly relied on
facts and opinions regarding salinity concentrations that were not included in the
Cumulative Hydrologic Impact Assessment.

Issue Four: Whether the Board of Environmental Review erred in holding that
extending the duration, but not the magnitude, of a water quality violation could not
constitute material damage.

Issue Five: Whether the Board of Environmental Review improperly excluded the
cumulative impact of mining activity from its analysis.

Issue Six: Whether the Board of Environmental Review improperly relied upon
evidence regarding aquatic life.

Issue Seven: Whether the District Court erred in its award of attorney fees.

Issue Eight: Whether the Board of Environmental Review was properly included as
a party on judicial review.

We affirm the District Court on Issues Two, Four, and Five. We reverse the District Court

on Issues One, Three, Six, Seven, and Eight.

FACTUAL AND PROCEDURAL BACKGROUND

¶6 During a six-year permit application review, DEQ and Westmoreland engaged in a

back-and-forth process through which Westmoreland addressed various concerns raised by

DEQ. When DEQ deemed Westmoreland’s application—which contained a lengthy

Probable Hydrological Consequences (PHC) report and addendum—to be acceptable, it

solicited public objections to the proposed permit. Conservation Groups filed objections

6
on August 3, 2015. DEQ subsequently responded to these comments and issued its written

findings and Cumulative Hydrologic Impact Assessment (CHIA) in December 2015. DEQ

found that Westmoreland had made the required showing that the permit proposal was

designed to prevent “material damage” under MSUMRA and greenlit the permit proposal.

¶7 Conservation Groups challenged the decision to the Board. After lengthy discovery,

a Board hearing examiner held a four-day hearing in which Conservation Groups, DEQ,

and Westmoreland presented evidence and argument. After the hearing, the hearing

examiner recommended that the Board uphold DEQ’s permitting decision. The Board

majority adopted in large part the hearing examiner’s proposed findings of fact and

conclusions of law in favor of DEQ, holding that Conservation Groups had failed to carry

the burden of proving that the permit would cause material damage.

¶8 Conservation Groups sought judicial review from the Sixteenth Judicial District

Court, naming the Board as a party along with Westmoreland and DEQ.5 Conservation

Groups challenged the Board’s analysis as erroneously placing the burden of proof on

Conservation Groups, rather than Westmoreland, in proceedings before the Board.

Conservation Groups also challenged the hearing examiner’s evidentiary decisions in

limiting Conservation Groups’ argument and evidence to issues raised in pre-CHIA

objections; allowing Westmoreland and DEQ to present post-decisional evidence and

rationales in support of DEQ’s permitting decision; and admitting testimony by a DEQ

hydrologist on aquatic life. Conservation Groups also challenged the Board’s substantive

5
The District Court denied the Board’s motion to be dismissed as a non-necessary party.
7
reliance upon an allegedly-unreliable aquatic life survey and its ultimate conclusion, in

light of a projected 13% increase in TDS in the Creek’s alluvium, that the Creek would not

suffer material damage in the form of a water quality violation. Further, they question the

Board’s determinations that the duration of the projected increase in TDS and the

cumulative effects of mining in the area are not relevant to an analysis of whether the

proposed mine expansion was designed to prevent material damage to the hydrologic

balance outside the permit area.

¶9 The District Court ruled in favor of Conservation Groups on these issues and

vacated Westmoreland’s AM4 Permit. We stayed the vacatur pending appeal.6 The

District Court also granted Conservation Groups nearly $900,000 in attorney fees and

costs. DEQ and Westmoreland appeal the District Court’s rulings overturning the Board,

its vacatur remedy, and the award of attorney fees. The Board appeals the District Court’s

denial of the Board’s motion to be dismissed from judicial review. Additional factual and

procedural history is presented as relevant below.

STANDARDS OF REVIEW

¶10 The Montana Administrative Procedure Act (MAPA) provides the applicable

standards of judicial review of an agency decision. Section 2-4-704, MCA. On appeal,

this Court applies the same standards of review that a district court applies. Whitehall

Wind, LLC v. Mont. Pub. Serv. Com., 2015 MT 119, ¶ 8, 379 Mont. 119, 347 P.3d 1273.

A court may reverse or modify the decision if the petitioner’s substantial rights have been

6
MEIC v. Western Energy, No. DA 22-0064, Order (Mont. Aug. 9, 2022).
8
prejudiced through findings, inferences, conclusions, or decisions that violate

constitutional or statutory provisions, exceed the agency’s statutory authority, are made

upon unlawful procedure, are affected by some other error of law, are clearly erroneous in

view of the record evidence, or are arbitrary, capricious, or characterized by abuse of

discretion. Section 2-4-704(2)(a), MCA. While we do not substitute our judgement for

that of the agency as to the weight of the evidence on factual questions, § 2-4-704(2), MCA,

a finding of fact may be reversed for clear error if “it is not supported by substantial

evidence in the record, if the fact-finder misapprehended the effect of the evidence, or if a

review of the record leaves the court with a definite and firm conviction that a mistake has

been made.” Nw. Corp. v. Mont. Dep’t of Pub. Serv. Reg., 2016 MT 239, ¶ 26, 385 Mont.

33, 380 P.3d 787. “Where the agency’s interpretation of its rule or regulation is within the

range of reasonable interpretation, it is lawful and deserves deference.” MEIC 2019, ¶ 22

(citing Clark Fork Coal. v. Mont. Dep’t of Envtl. Quality, 2008 MT 407, ¶¶ 20, 27,

347 Mont. 197, 197 P.3d 482 (Clark Fork 2008)). We recognize an agency’s superior

specific, technical, and scientific knowledge, but the agency must still be able to “articulate

a satisfactory explanation for its actions and provide a rational connection between the facts

found and the choice made.” MTSUN, LLC v. Mont. Dep’t of Pub. Serv. Reg., 2020 MT

238, ¶ 52, 401 Mont. 324, 472 P.3d 1154. We ask whether agency interpretation of the law

is correct but defer to agency interpretations of its own rules or regulations that fall within

a reasonable range of interpretation. Vote Solar v. Mont. Dep’t of Pub. Serv. Reg.,

2020 MT 213A, ¶¶ 35, 37, 401 Mont. 85, 473 P.3d 963.

9
¶11 In evaluating requests for attorney fees, Montana courts first look to whether legal

authority exists to award those fees. Folsom v. City of Livingston, 2016 MT 238, ¶ 13,

385 Mont. 20, 381 P.3d 539. Whether legal authority exists to support an award of attorney

fees is a question of law, reviewed for correctness. Chase v. Bearpaw Ranch Ass’n,

2006 MT 67, ¶ 14, 331 Mont. 421, 133 P.3d 190.

¶12 If the legal authority exists to support an award of attorney fees, then the amount of

the award falls within a district court’s discretion, which we will not disturb unless the

district court acted arbitrarily, without conscientious judgment, or exceeded the bounds of

reason in making the award. Shephard v. Widhalm, 2012 MT 276, ¶ 35, 367 Mont. 166,

290 P.3d 712.

DISCUSSION

¶13 Issue One: Whether the Board of Environmental Review applied the wrong burden
of proof.

¶14 The District Court concluded that the Board had erroneously placed the burden of

proof on Conservation Groups in the contested case hearing, a conclusion DEQ and

Westmoreland now challenge. Under MSUMRA, DEQ may not approve a permit

application “unless the application affirmatively demonstrates that . . . the proposed

operation of the mining operation has been designed to prevent material damage to the

hydrologic balance outside the permit area.” Section 82-4-227(3)(a), MCA. MSUMRA

also allows an applicant, permittee, or person with an interest in a decision to grant a permit

to request a hearing before the Board within 30 days of DEQ’s decision. Section

82-4-206(1), MCA. The parties agree the statute requires Westmoreland to bear the burden

10
of proving no “material damage” in order to succeed in applying for the AM4 Permit from

DEQ. The parties disagree, however, on which party should have been required to carry

the relevant burden in the subsequent contested case before the Board challenging DEQ’s

permitting decision. Conservation Groups assert that the burden remains on Westmoreland

to prove an absence of “material damage,” while DEQ asserts that the burden properly

shifted to Conservation Groups to prove that DEQ’s grant of the AM4 permit violated

Montana law.

¶15 MSUMRA provides that a contested case on a DEQ permit decision will be held

pursuant to the procedures provided for by MAPA. Section 82-4-206(2), MCA.7 MAPA,

in turn, provides that a contested case is bound by common law and statutory rules of

evidence unless otherwise provided for. Section 2-4-612(2), MCA. Title 26, chapter 1,

MCA, is entitled “Statutory Provisions on Evidence” while Part 4 of that Chapter is entitled

“Burdens of Proof.” Section 401, titled “Who Has Burden Of Producing Evidence,”

descriptively defines the burden of evidentiary production as resting “on the party who

would be defeated if no evidence were given on either side.” Section 26-1-401, MCA.

Section 402 provides that “[e]xcept as otherwise provided by law, a party has the burden

of persuasion as to each fact the existence or nonexistence of which is essential to the claim

for relief or defense the party is asserting.” Section 26-1-402, MCA.

7
Montana, as a “primacy” state pursuant to the federal Surface Mine Control Reclamation Act
(SMCRA), see 30 U.S.C. § 1253(a) and 30 C.F.R. §§ 926.10–926.30, has jurisdiction over the
regulation of coal mining operation and, as such, Montana law applies to this proceeding. Mont.
Envtl. Info. Ctr. v. Opper, 2013 U.S. Dist. LEXIS 29184, at *8 (D. Mont. Jan. 22, 2013) aff’d on
other grounds, 766 F.3d 1184 (9th Cir. 2014).
11
¶16 DEQ points us to Mont. Envtl. Info. Ctr. v. Dep’t of Envtl. Quality, 2005 MT 96,

326 Mont. 502, 112 P.3d 964 (MEIC 2005), where we relied on §§ 26-1-401 and -402,

MCA, to determine that the Board appropriately placed the burden on the party challenging

DEQ’s issuance of an air quality permit in a contested case. MEIC 2005, ¶ 16 (concluding

that, “as the party asserting the claim at issue, MEIC had the burden of presenting the

evidence necessary to establish the facts essential to a determination that the Department’s

decision violated the law.”).

¶17 Conservation Groups, for their part, point to Bostwick Props., Inc. v. Mont. Dep’t of

Natural Res. & Conservation, 2013 MT 48, 369 Mont. 150, 296 P.3d 1154, and

In re Application for Change of Appropriation Water Rights Nos. 101960-41S

& 101967-41S, 249 Mont. 425, 816 P.2d 1054 (1991) (In re Royston). In Bostwick, we

heard an appeal from judicial review of a Department of Natural Resources and

Conservation (DNRC) decision denying a water use permit. On appeal from judicial

review, we repeatedly rejected Bostwick’s efforts in arguments before this Court to shift

the burden of proof to DNRC on disputed factual matters, as § 85-2-311, MCA, had clearly

placed the burden on the applicant of demonstrating the lack of any adverse effect.

Bostwick, ¶¶ 36, 38, 40–41. Similarly, in In Re Royston, we held that the Water Use Act

placed a burden of proving an absence of adverse effect on the applicant and that, when

the agency proposed to deny it and thereafter held a hearing, the evidentiary burden of

proving those facts did not shift to the objector. In re Royston, 249 Mont. at 428, 816 P.2d

at 1057. As DEQ points out, in both these cases, the applicant had initially been denied

12
the permit, and was therefore the challenger, rather than the defender, of the agency’s initial

permitting decision at the hearing stage.

¶18 Both DEQ and Conservation Groups are partially correct, but miss the key point.

Conservation Groups are correct that MSUMRA requires the applicant, Westmoreland, to

bear the evidentiary burden of proving no material damage to be entitled to approval of its

permit application. See Bostwick, ¶ 10 (burden of proving necessary factual elements for

issuance of a water use permit is on the applicant); In re Royston, 249 Mont. at 428,

816 P.2d at 1057 (same); § 82-4-227(3)(a), MCA (application for MSUMRA permit must

“affirmatively demonstrate[] that . . . the proposed operation of the mining operation has

been designed to prevent material damage . . . .”); § 26-1-401, MCA (burden of producing

evidence is on the party that would be defeated if no evidence were given). However, DEQ

is correct that Westmoreland, having succeeded in this showing before the DEQ’s permit

issuers, need not re-prove the factual elements of its case a second time before the Board.

Rather, Conservation Groups—as challengers to a DEQ permitting decision—are the party

that must bear a burden before the Board. See MEIC 2005, ¶ 16; Admin. R. M.

17.24.425(7) (2012) (“The burden of proof at such hearing is on the party seeking to reverse

the decision of the [Department].”).8

8
DEQ contends that the words “of the board” were erroneously inserted in place of the words “of
the department” pursuant to a scrivener’s error during a 2012 rulemaking implementing a transfer
of responsibility for MSUMRA contested case hearings from DEQ to the Board, resulting in the
word “department” being replaced by the word “board” throughout the administrative rules and
accidentally inserted here. See State v. Heath, 2004 MT 126, ¶ 32, 321 Mont. 280, 90 P.3d 426
(interpretation leading to absurd results should be avoided where reasonable alternatives consistent
with the provision’s purpose); 24 Mont. Admin. Reg. 2735–36 (Dec. 22, 2011); 2005 Mont. Laws
ch. 127, § 6(9). We agree, as the regulatory provision is entitled “Administrative Review” and
remainder of the provision exclusively describes proceedings before the Board to review DEQ
13
¶19 During a challenge to a DEQ decision pursuant to a MAPA contested case

proceeding, the question becomes whether DEQ followed the law in appropriately applying

the correct procedural and substantive requirements of MSUMRA.9 The challenger to

DEQ’s permitting decision—Conservation Groups, in this case—has the burden of

persuading the Board that the answer is no. See MEIC 2005, ¶ 16.

¶20 “[A] party has the burden of persuasion as to each fact the existence or nonexistence

of which is essential to the claim for relief or defense the party is asserting.” Section

26-1-402, MCA. Here, the fact essential to the claim for relief Conservation Groups

asserted before the Board was that DEQ had erred in its permitting decision. This layering

of burdens upon review should be familiar: a defendant appealing from a conviction must

bear the burden of proving reversible error, but not of proving innocence beyond a

reasonable doubt. See State v. Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, 87 P.3d 1032

(while it is the State’s burden to prove guilt beyond a reasonable doubt in a criminal trial,

on appeal, “[i]t is the appellant’s burden to establish error by a district court”);

see also §§ 2-4-612(2), 82-4-206(2), MCA (providing that MAPA, contested case,

permitting decisions, otherwise making no reference to judicial review of Board decisions.
See Admin. R. M. 17.24.425(7) (2012).
9
The relevant requirements here are that DEQ may not issue a permit without an “assessment of
the probable cumulative impact of all anticipated mining in the area on the hydrologic
balance . . . by the department” and a determination that the application “affirmatively
demonstrates” that the “proposed operation of the mining operation has been designed to prevent
material damage to the hydrologic balance outside the permit area.” Section 82-4-227(3), MCA;
§ 82-4-206, MCA (contested case hearing is held subsequent to the department’s decision that the
interested party seeks to challenge).
14
incorporated into MSUMRA Board review, is bound by common law and statutory rules

of evidence unless otherwise provided for).

¶21 Thus, Conservation Groups were required to show before the Board that DEQ’s

decision violated the law, by methods including evidence or argument sufficient to show

that DEQ’s conclusion—that Westmoreland’s application had produced enough evidence

to bear its burden of proving that the proposal was designed to prevent material damage—

was in error. See MEIC 2005, ¶ 16.

¶22 The members of the Board discussed the appropriate burden of proof at length

before issuing its order, modifying some of the language regarding burdens of proof

contained in the hearing examiner’s proposed findings of fact and conclusions of law. The

Board presented the burden correctly at one point in its order, stating that “[i]n this

contested case hearing, therefore, MEIC has the burden of proving by a preponderance of

the evidence that DEQ’s decision to issue the permit violated the law.” However, at

multiple other points throughout the order, the Board used somewhat confusing language

indicating a reliance on other burdens of proof and persuasion. The Board determined that

Conservation Groups had “the burden to show, by a preponderance of the evidence, that

DEQ had information available to it at the time of issuing the permit that indicated that the

project at issue is not designed to prevent” material damage, and that “the burden of proof

in this action falls to Conservation Groups to present a more-likely-than-not probability

that a water quality standard could be violated by the permitted action,” that Conservation

Groups failed “to present evidence necessary to establish the existence of any water quality

standard violations with respect to the AM4 Amendment,” or “the facts essential to a
15
determination that the AM4 Permit is not designed to prevent material damage.”

(Emphases added.)

¶23 The District Court concluded that reversal of the burden of proof was plainly

prejudicial error. Implicit with the court’s ruling was that the Board required Conservation

Groups to prove that material damage would occur if the mining activity was expanded.

However, a review of the record does not leave this Court with a definite and firm

conviction that such a mistake has been made. Throughout the briefing it is clear that DEQ

acknowledges that Conservation Groups had the burden of proof to show DEQ’s decision

violated the law. See MEIC 2005, ¶ 16. Their reply brief cites to the Board’s twelfth

conclusion of law to support their position:

Conservation Groups have the burden to show, by a preponderance of the
evidence, that DEQ had information available to it at the time of issuing the
permit that indicated that the project at issue is not designed to prevent land
uses or beneficial uses of water from being adversely affected, water quality
standards from being violated, or water rights from being impacted.

¶24 Conclusion of Law No. 12 is not inconsistent with our discussion above regarding

the burden of proof required from Conservation Groups—showing that the permit approval

was in violation of the law.

¶25 The District Court’s conclusion that reversal of the burden of proof was “plainly

prejudicial error” is reversed. In any event, we conclude below that other District Court

rulings are affirmed and agree that this matter must be returned to the Board for additional

proceedings. We anticipate the parties will be clear as to respective burdens of proof

required by Montana law.

16
¶26 Issue Two: Whether the Board of Environmental Review improperly limited
Conservation Groups’ evidence and argument.

¶27 Prior to DEQ’s issuance of a CHIA and findings of fact providing reasoning for

approving Westmoreland’s permit application, Conservation Groups filed objections with

DEQ opposing the permit. During subsequent proceedings before the Board, DEQ and

Westmoreland made motions in limine to bar Conservation Groups from raising any issues

(or presenting argument or evidence related to such issues) that they did not already raise

in their pre-CHIA objections to Westmoreland’s permit application. The hearing examiner

granted the motion, determining that Conservation Groups would be limited to presenting

evidence and argument at the contested hearing either (a) relevant to only those issues it

had raised in prior objections or (b) if Conservation Groups could show that they had

somehow been caught unawares by a portion of the CHIA. At the hearing, the hearing

examiner repeatedly sustained Westmoreland’s objections to Conservation Groups’

questioning of its witnesses as relating to unpreserved issues.10

¶28 The hearing examiner limited Conservation Groups to argument and evidence

regarding the following issues, which she deemed to have been sufficiently preserved by

their pre-CHIA objections to Westmoreland’s permit application:

10
During the hearing, the parties vigorously argued about option (a)—whether the testimony could
be tied back to something said in pre-CHIA objections—but seemingly failed to mention
option (b), whether the testimony related to new analysis in the CHIA that was a surprise to
Conservation Groups.
17
  the material damage determination regarding increased TDS levels in the Creek;

 the material damage determination regarding increased nitrogen levels in the Creek;
and

 the material damage determination regarding aquatic life use of the Creek.

¶29 During the hearing, Conservation Groups were prevented from soliciting testimony

from its witnesses relating to the following issues pertinent to our discussion here:

 alleged impacts of the Permit on Rosebud Creek;

 alleged impacts from blasting;

 the CHIA’s definition of “anticipated mining” to exclude consideration of proposed
unpermitted mining operations in Area F from its cumulative impact analysis;

 the CHIA’s failure to make a determination on de-watering of the Creek through the
permit and past mining;

 the impact of dissolved oxygen levels in the Creek on aquatic life; and

 the impact of chloride levels in the Creek on aquatic life.

¶30 The District Court reversed, finding no statutory authority for the Board hearing

examiner to preclude Conservation Groups from presenting argument and evidence on

issues not raised prior to the contested case. On appeal, DEQ points to § 2-4-702(1), MCA,

which requires a challenger to “exhaust[] all administrative remedies available within the

agency,” arguing that filing a “written objection” to a MSUMRA permit application

pursuant to § 82-4-231(8)(e), MCA, is an administrative remedy that must be taken.

However, exhaustion of administrative remedies under § 2-4-702(1), MCA, speaks to a

party’s duty to obtain a final decision from an agency before proceeding to judicial review.

The doctrine of administrative issue exhaustion can limit issues considered on judicial

18
review to those raised during an administrative appeal. See Sims v. Apfel, 530 U.S. 103,

107–08, 120 S. Ct. 2080, 2084 (2000) (distinguishing exhaustion of administrative

remedies (i.e., no judicial review until the final agency decision has been reached) from

administrative issue exhaustion—issues not raised during an administrative appeal are not

reviewable on judicial review when statute so provides); Vote Solar, ¶ 48 (“A party forfeits

argument as to an issue not raised during the administrative process.”).

¶31 DEQ’s argument fits within neither exhaustion of administrative remedies nor

administrative issue exhaustion, as it seeks to impose an issue preservation requirement

within the administrative process, not on judicial review. DEQ points us to nothing in

MSUMRA, MAPA, or associated regulations, limiting the issues a party may raise in a

contested case to those that were raised earlier. DEQ appears to argue that the doctrine of

administrative issue exhaustion should be transplanted from the judicial review context to

the administrative hearing context, even in the absence of statutory or regulatory authority.

¶32 The United States Supreme Court has noted that “it is common for an agency’s

regulations to require issue exhaustion in administrative appeals,” which are generally

approved of by the courts. Sims, 530 U.S. at 108–09, 120 S. Ct. at 2084. However, DEQ

points us to no such requirement in its regulations. To the contrary, § 82-4-206, MCA,

provides that a “person with an interest” adversely affected by a MSUMRA permitting

decision may request a hearing before the Board on such a decision “by submitting a

written request stating the reason for the request within 30 days after the department’s

decision.” Moreover, § 2-4-612(1), MCA, provides that “[o]pportunity shall be afforded

to all parties to respond and present evidence and argument on all issues involved” in a
19
contested case. (Emphasis added.) See also MEIC 2005, ¶ 22. The relevant statutes do

not appear to require an aggrieved party to have raised prior objections with DEQ at all in

order to bring a challenge before the Board.

¶33 The “requirements of administrative issue exhaustion are largely creatures of

statute,” and courts only impose them in the absence of such statute where the

administrative proceeding below was analogous to normal adversarial litigation in courts

and the parties were expected to develop the issues in an adversarial proceeding. Sims,

520 U.S. at 109–110, 120 S. Ct. 2084–85. There is nothing prior to the Board contested

case that is sufficiently analogous to an adversarial proceeding to justify imposing an issue

preservation requirement at that stage.

¶34 DEQ points to Westmoreland’s permit application process as a potential analogue,

noting that the public had access to Westmoreland’s pending application, containing a

lengthy PHC report and addendum, and had ample opportunity to object to its sufficiency

before a permit was issued. Admin. R. M. 17.24.401(3)(d) (2012), -402(2) (1996), -404(3)

(2004).11 However, nothing in MSUMRA or MAPA envision an adversarial process

between applicant and objector, with DEQ as adjudicator. The first truly adversarial

process that appears in the MSUMRA process is between objector (Conservation Groups)

and permitter (DEQ) in a contested case. There is no earlier adversarial posture between

Conservation Groups and DEQ in which issues regarding DEQ’s decision making could

have been raised and preserved prior to a contested case.

11
Conservation Groups took this opportunity to object on numerous grounds.
20
¶35 DEQ complains that this puts it in the unenviable position of having to defend

against an untold amount of nitpicking of perceived flaws in its CHIA—after years of

preparation—for the first time in a litigation context (the contested case), rather than giving

the agency an opportunity to in good faith address and remedy any concerns prior to

finalizing its decision. This is a problem of DEQ’s own making. In contrast to the Montana

Environmental Procedure Act process for producing an Environmental Impact Statement

or Environmental Assessment, which have draft and final versions, DEQ does not publish

a draft CHIA to give the public an opportunity to view and comment on the substance of

DEQ’s decision-making rationale before making a final decision. Admin. R. M.

17.24.405(1) (2004).12 DEQ’s proposed approach essentially shields its substantive

analysis from any form of review. However, MSUMRA itself, § 82-4-231, MCA, provides

three separate opportunities for public comment—when the application is administratively

complete (§ 82-4-231(6), MCA); following the Department’s determination that the

application is acceptable (§ 82-4-231(8)(e), MCA); and, significantly here, after the

Department makes a decision on the permit, subsection (9) allows “[t]he applicant, a

landowner, or any person with an interest that is or may be adversely affected by the

department’s permit decision” to submit a written notice requesting a hearing and stating

the “grounds upon which the requester contends that the decision is in error”

(§ 82-4-231(9), MCA). This statute is not restricted to a person who has submitted

12
Though the CHIA draws heavily upon information in the application and PHC, it does not track
it precisely. Unlike the PHC, the CHIA applies the factual information to the relevant legal
standards, engaging in lengthy “material damage” analysis.
21
comments earlier in the process, much less to comments that may have been previously

submitted.

¶36 Conservation Groups sought to challenge DEQ’s analysis on issues related to

anticipated mining, dewatering of the Creek, high levels of chloride, and low levels of

dissolved oxygen that could affect invertebrates in the Creek. These issues had not hitherto

been made available to the public. The first time this analysis was subjected to an

adversarial process was in the contested case hearing, and it was therefore inappropriate to

apply an administrative issue exhaustion requirement at that stage. The District Court held

that issue exhaustion does not apply to administrative review of permits under MSUMRA.

Moreover, the court held that error was prejudicial as it precluded a “merits-based” ruling

on Conservation Groups’ claims.

¶37 We affirm the District Court’s order and remand to the District Court to return to

the Board for additional considerations consistent with this Opinion. Foreseeing an

appealable issue, the hearing examiner allowed Conservation Groups to present substantial

offers of proof on each of these issues, with the stated intent of allowing the Board to reach

a substantive ruling without necessitating further testimony should her evidentiary

decisions be reversed. On remand, it is within the purview of the Board to determine

whether additional testimony is needed on these issues or whether the offers of proof

contained in the contested case transcripts are sufficient for the Board to address the merits

of Conservation Groups’ claims.

22
¶38 Issue Three: Whether the Board of Environmental Review improperly relied on
facts and opinions regarding salinity concentrations that were not included in the
Cumulative Hydrologic Impact Assessment.

¶39 During the permitting phase, DEQ requested that Westmoreland provide additional

information regarding the predicted long-term effects of mining on surface water quality

in the Creek, particularly how “increased saturation of spoil adjacent to the stream [is]

likely to affect long term water quality in the stream and alluvium.” Westmoreland

responded in a February 2015 addendum to its PHC that “[t]he best projection that can be

made at this time is that, in the long term, the average TDS concentrations in the alluvium

and stream would have a net increase of about 13 percent over baseline concentrations,”

fueling much of the current litigation. (Italicized emphasis added.) Westmoreland advised

that the rate of that increase was “impractical to predict” but that the time frame “likely

involves several decades after mining in Area A and B ceases.” Referencing this material,

DEQ’s CHIA stated that “mass balance calculations estimate that average TDS in alluvium

between areas Area A and Area B is expected to experience a 13% increase over the

baseline TDS,” and that “[a]n increased volume of spoil would also be created in mining

AM4 resulting in a longer period of recovery of . . . water quality.” Nonetheless, it

concluded that “[w]ater quality of the alluvium is expected to meet narrative standards for

current and postmine water uses and will not exceed numeric HHS [(Human Health

Standards)]” and that, while “[w]ater quality in the stream may change with spoil

saturation, . . . suitability for aquatic life, are expected to be maintained.”

¶40 Conservation Groups challenged these conclusions before the Board and filed a

motion in limine, seeking to bar expert testimony by Westmoreland or DEQ’s witnesses
23
that would bolster such conclusions with evidence or reasoning beyond that contained in

the CHIA. Conservation Groups contended that the administrative ruling In re Bull

Mountain Mine, No. BER-2013-07 SM (Jan. 14, 2016), established that the information in

the CHIA must be sufficient, alone, to maintain DEQ’s permitting decision, without resort

to post-hoc rationales. The hearing examiner issued an order granting in part and denying

in part the motion, stating that DEQ and Westmoreland’s evidence “will be limited to

evidence that explains and demonstrates that the evidence before the agency at the time of

its permitting decision and the analysis within the CHIA satisfy applicable legal standards.”

(Internal quotation omitted and cleaned up.) The order indicated that the hearing examiner

would address proffered evidence on a case-by-case basis as it came up at the hearing.

¶41 At the contested case hearing, Westmoreland presented evidence by its expert,

William Schafer, Ph.D. (soil science), who had worked on Westmoreland’s permit

application. Conservation Groups lodged a standing objection to any testimony on material

that was not submitted in the permitting process. Westmoreland contended that Schafer’s

testimony was in rebuttal to the testimony of Conservation Groups’ expert witness, William

Gardner, who testified that mining would lead to an “observable” 20 percent increase in

alluvial TDS concentrations in the Creek. Schafer disputed Gardner’s characterization,

testifying that he did not believe that the projected increase in the Creek alluvial TDS would

be “measurable,” as any such increase was dwarfed by the natural variability the Creek

experienced between typical low-volume baseflows (dominated by groundwater sources

and subject to significant evaporation resulting in high TDS concentrations) and spring

24
runoff (during which periods the Creek experienced high flows and correspondingly-low

concentrations of TDS).

¶42 Schafer went on to describe an analysis that predicted that any TDS increase in the

Creek’s alluvial groundwater or surface water, when accounting for natural variability,

would not be reliably statistically significant using a sample set of twelve pre- and

post-mine conditions.13 The parties stipulated that Schafer’s probabilistic analysis was not

contained in DEQ’s CHIA or Westmoreland’s PHC or addendum to the PHC.

¶43 Another Westmoreland expert, Dr. Nicklin, who had also worked on the PHC,

similarly testified that large variations in the Creek’s flow rates between spring runoff and

summer months led to correspondingly-large variations in TDS concentrations.

Dr. Nicklin testified that he did not use a “robust statistical analysis to draw that

conclusion” but instead based his “interpretation more on experience,” knowing that “a

change that small is not going to be observable in a system like this.”

¶44 The hearing examiner’s Proposed Findings of Fact and Conclusions of Law

concluded as a matter of law that “[t]he only relevant facts are those concluded by the

agency in the permitting process before the agency makes its permitting decision.”

However, its findings of fact—incorporated into its final conclusions of law on material

damage—cited to Schafer’s testimony regarding his statistical analysis as showing that any

increase in TDS “would not be statistically significantly measurable” due to the “inherent

13
Schafer testified that the permit itself would have no “effect on any of these calculations” and
that the permit would add a mass of salinity to the Creek’s alluvium that would not translate to an
increase in concentration in the water, but, rather, extend the duration of that heightened
concentration.
25
variability of the system.” The hearing examiner’s only citation to the CHIA is to a graph

of the Creek’s measured flow rates and TDS concentrations since 1979, showing values

ranging from above 3500 mg/L to below 2000 mg/L during that time. The Board’s final

order adopted the substance of these findings and reasonings.

¶45 Admin. R. M. 17.24.405(6) (2004) provides that DEQ cannot approve a permit

application unless DEQ’s “written findings confirm, on the basis of information set forth

in the application or information otherwise available that is compiled by the department”

that no material damage will result. (Emphasis added.) Likewise, Admin. R. M.

17.24.314(5) (2012) provides that DEQ’s CHIA “must be sufficient to determine, for

purposes of a permit decision, whether the proposed operation has been designed to prevent

material damage . . . .” In In re Bull Mountain Mine, ¶ 66, the Board held that, in a

contested case challenging the sufficiency of a CHIA, “the only relevant analysis is that

contained within the four corners of the CHIA and the only relevant facts are those

concluded by the agency in the permitting process before the agency makes its permitting

decision.”

¶46 On judicial review, we defer to reasonable agency interpretations of its own rules

implementing statutes. “[T]his Court affords ‘great deference’ to agency decisions

implicating substantial agency expertise.” MEIC 2019, ¶ 20 (quoting Winchell v. Mont.

Dep’t of Nat. Res. & Conservation, 1999 MT 11, ¶ 11, 293 Mont. 89, 972 P.2d 1132). Bull

Mountain’s interpretation of Admin. R. M. 17.24.405(6) (2004) and 17.24.314(5) (2012)

as requiring DEQ’s permitting decision to be supportable before the Board without

26
reference to information that was not available to and relied upon by DEQ at the time of

the permitting decision is reasonable.

¶47 Conservation Groups assert that Schafer’s statistical analysis demonstrating that the

projected increase in alluvial TDS was not statistically significant in light of natural

variations was not contained in the CHIA and not otherwise available or relied upon by

DEQ at the time of its decision. Westmoreland argues that Schafer’s testimony was

properly admitted as rebuttal to testimony by Conservation Groups’ expert, Gardner,

asserting that mining would lead to a 20% increase in alluvial TDS. Additionally, the

Board relied on Dr. Nicklin’s testimony that an experienced professional would know that

such a small, expected increase in TDS would not be significant in light of the Creek’s

natural variations is consistent with the information demonstrated by Figure 9-23 of the

CHIA, and is indicative of information DEQ officials would have had and relied upon at

the time of the CHIA.

¶48 The District Court determined that allowing DEQ and Westmoreland to present

post-decisional evidence and analyses simultaneously limiting Conservation Groups to

evidence and argument contained in their pre-decisional comments “created an uneven

playing field” and was plainly prejudicial. To the extent that the District Court relied on

the “uneven playing field” rationale, the court was correct. We note that we affirm the

District Court on Issue Two—that it was reversible error to preclude Conservation Groups

from presenting argument on certain evidence.

¶49 MAPA, as incorporated into MSUMRA pursuant to § 82-4-206(2), MCA, provides

that “all parties” may “respond and present evidence on all issues involved.” Section
27
2-4-612(1), MCA; MEIC 2005, ¶ 22. DEQ asserts this section allows DEQ to supplement

its reasoning beyond that provided in the CHIA.

¶50 We reverse the District Court conclusion to the extent that the court determined it

was reversible error to admit Schafer’s report and testimony as proper rebuttal, given that

his opinion is drawn from information contained in the CHIA or otherwise compiled by

DEQ during the permit approval process. Information regarding projected increase in TDS

and its potential impact was present throughout this entire process. Montana law is clear

that a court may not substitute its judgment for that of the agency as to the weight of the

evidence or factual issues. Nw. Corp, ¶ 26; § 2-4-704(2), MCA. Rulings may be reversed

for clear error if a review of the record leaves the court with a definite and firm conviction

that a mistake has been made. Nw. Corp., ¶ 26. We cannot conclude such a mistake has

been made here.

¶51 MSUMRA states DEQ’s permitting decisions appealed to the Board are subject to

“[t]he contested case provisions of [MAPA].” Section 82-4-206(2), MCA. MAPA’s

contested case hearing provision states “[o]pportunity shall be afforded all parties to

respond and present evidence and argument on all issues involved.” Section 2-4-612(1),

MCA (emphasis added); MEIC 2005, ¶ 22.

¶52 DEQ’s permit must base a decision on whether material damage will occur on the

basis of information “set forth in the application or information otherwise available that is

compiled by the department.” Admin. R. M. 17.24.405(6) (2004). Based on all of the

evidence and material presented at the hearing, it was not reversible error to admit

28
Schafer’s statistical analysis in support of his opinions. We reverse the District Court on

this issue.

¶53 Issue Four: Whether the Board of Environmental Review erred in holding that
extending the duration, but not the magnitude, of a water quality violation could not
constitute material damage.

¶54 As noted, the Board order reviewed the evidence that Area A and Area B mining

would lead to a projected 13% increase in TDS concentrations in the Creek’s alluvium.

See ¶¶ 39, 44 of this Opinion. Because the surface water of the Creek was already saturated

with salt, the additional salts in the alluvium would not statistically significantly increase

the surface water’s TDS concentrations. However, as noted in Schafer’s testimony, the

additional salt in the alluvium was expected to increase the duration for which the Creek’s

surface water would remain at a heightened TDS level—extending recovery time after

reclamation for “some tens or hundreds of years” according to DEQ’s expert, Dr. Emily

Hinz. The Board found that “as a matter of law,” the “increase in duration of time is

not . . . relevant for a material damage analysis” because “material damage is merely a

magnitude threshold” and the permit “will not increase the pollutant concentration.”

¶55 The District Court found the Board’s exclusion of increased duration of heightened

salinity in the material damage analysis to be an error of law. On appeal, Westmoreland

argues that extended duration is like “driving a car . . . for a longer distance,” and that “[a]s

long as the car’s speed remains below the speed limit, the higher speed does not violate the

law even if it occurs over a longer” time period. Conservation Groups respond that

Westmoreland has the right analogy but the wrong facts; it contends that the Creek is

already violating water quality standards due to excess salinity and that extending the
29
duration of this violation is akin to continuing to drive over the speed limit after receiving

a ticket, thereby putting the driver in jeopardy of multiple speeding violations.

¶56 By definition, material damage under MSUMRA includes any violation of a water

quality standard. Section 82-4-203(32), MCA (2015). Westmoreland and DEQ argue that

inserting Montana Water Quality Act (MWQA) requirements into a MSUMRA proceeding

was error, citing Clark Fork Coal. v. Mont. Dep’t of Nat. Res. & Conservation, 2021 MT

44, 403 Mont. 225, 481 P.3d 198 (Clark Fork 2021). Although Clark Fork 2021 occurred

within the context of a proposed mining operation, the issue in the case was the availability

of water pursuant to a beneficial use permit from DNRC for the projected exercise of a

water right pursuant to § 85-2-311(1)(a)(ii), MCA (water quantity). Objectors

unsuccessfully argued that issues of water quality pursuant to § 85-2-311(1)(g), MCA (the

non-degradation provisions of the Water Quality Act), had to be applied by DNRC in

making a determination that the use of water proposed in the application was “legally

available.” Under its facts, Clark Fork 2021 has no precedential value on the issues

relevant to material damage in MSUMRA.

¶57 We have not previously determined whether delaying an already-impaired water

body’s return to compliance with water quality standards could constitute

“degradation . . . by coal mining and reclamation operations of the quality . . . of

water . . . to an extent that . . . water quality standards are violated”—constituting “material

damage” under MSUMRA. Section 82-4-203(32), MCA; see also § 82-4-227(3)(a), MCA

(permit applicant must show proposal is “designed to prevent material damage to the

hydrologic balance outside the permit area”). We have noted that Montana’s main
30
degradation policy “applies during permitting to all new or increased discharges after April

1993. This policy outlines three levels of water protection and stipulates what degradation,

if any, is allowable in each level.” MEIC 2019, ¶ 12 n.6 (citing § 75-5-303, MCA;

Admin. R. M. 17.30.701–718). Montana’s water quality statutes provide for assessment

of penalties for water quality violations on a daily basis, indicating that each additional day

of failure to comply with a water quality standard is regarded as a new violation.

Section 75-5-611(9)(a), MCA (allowing for an administrative penalty of up to “$10,000

for each day of each violation” (emphasis added)). Therefore, each day that a stream that

otherwise would have complied with water quality standards, but does not because of coal

mining, constitutes a “degradation . . . by coal mining . . . to an extent that . . . water

quality standards are violated” and therefore is “material damage” under MSUMRA.

Sections 82-4-227(3)(a), -203(32), MCA. We conclude that the Board erred as a matter of

law in holding that delaying a stream’s return to compliance to water quality standards

cannot constitute material damage under MSUMRA.

¶58 The Board erred when it concluded that no water quality standard violation could

occur because:

[w]ater quality standards are . . . evaluated through pollutant concentrations.
Essentially, either a pollutant concentration is exceeded, or it is not; and, if
the pollutant concentration is not exceeded, then there is no water quality
violation. Here, the AM4 will not violate a water quality standard for TDS
because it will not increase the pollutant concentration.

(Internal citations omitted.) First, it is undisputed that the Creek does not currently have a

numeric water quality standard for TDS or any other pollutant concentration. Rather, it

31
has a narrative water quality designation for ability to support associated aquatic life.14

Second, as described above, a water quality violation may consist of an increase in duration

of an existing violation without requiring an increase of magnitude.

¶59 On the record before the Court at this time, it is not necessary for us to address the

question of whether increasing the magnitude of a preexisting water quality violation

constitutes material damage under MSUMRA. See Friends of Pinto Creek v. United States

EPA, 504 F.3d 1007, 1011–13 (9th Cir. 2007) (federal NPDES permitting program does

not allow for permitting of new point source discharge into a stream that is already in excess

of numerical limit for pollutant unless the existing dischargers into the segment are subject

to compliance schedules designed to bring segment back into compliance with water

quality standards (citing 40 C.F.R. § 122.4(i) (2000))).

¶60 It is unclear to what extent the Board’s ultimate conclusion rested on this erroneous

legal interpretation. For one, it remains disputed and unclear on this record the extent to

which: (1) the Creek is in fact currently in violation of water quality standards,

(2) heightened salinity is connected to any violation of aquatic life support water quality

standards, (3) mining, generally, causes heightened salinity in the Creek, and (4) the

permit, specifically, will cause heightened salinity in the Creek’s alluvium. These factual

matters are within the purview of the Board to resolve on remand as necessary to its

ultimate conclusion. We remand to the District Court to remand to the Board for additional

proceedings consistent with this Opinion.

14
As noted, the Creek is designated as C-3 surface water—suitable for various uses including
bathing, swimming, and propagation of non-salmonid fishes.
32
¶61 Issue Five: Whether the Board of Environmental Review improperly excluded the
cumulative impact of mining activity from its analysis.

¶62 Conservation Groups maintain that the Board order dismissed the importance of a

13% increase in the Creek’s alluvium as attributable to all mining in areas A and B and

relied on a finding that the permit project, alone, would not cause a water quality violation.

The District Court faulted the Board for failing to properly consider cumulative impacts of

mining. DEQ contends that the Board did not improperly examine the permit amendment

in isolation and that the District Court improperly excised MSUMRA’s requirement that a

causal relationship exist between the proposed permit activity and the material damage.

¶63 In MEIC 2019, we noted that the permit acknowledged the Creek was impaired and

that there was no established total maximum daily load (TMDL) budget. MEIC 2019, ¶ 11.

Additional effluent limitations apply to impaired waters, which are waters not meeting a

water quality standard required by the water’s classification. Section 75-5-103(13), MCA;

MEIC 2019, ¶ 40.

¶64 Section 82-4-227(3)(a), MCA, states that DEQ may not approve a MSUMRA

permit until (1) DEQ makes an “assessment of the probable cumulative impact of all

anticipated mining in the area on the hydrologic balance” and (2) the application

affirmatively demonstrates that “the proposed operation of the mining operation has been

designed to prevent material damage to the hydrologic balance outside the permit area.”

(Emphases added.) Conservation Groups emphasize the first requirement, an assessment

of cumulative impacts, while DEQ emphasizes the second, that the application demonstrate

33
that “the” proposed mining operation—not some other mining operation—will not cause

material damage.

¶65 Both parties are partially correct. An anticipated “material damage” must actually

be caused by the proposed mining operation for which a permit is being sought. Section

82-4-227(3)(a), MCA (“the proposed operation of the mining operation has been designed

to prevent material damage” (emphasis added)); Bull Mountain, ¶¶ 84–88 (substantive

MSUMRA standard is whether the “proposed mining operation will cause violation of

water quality standards”). Thus, a proposed mining operation that would have no impact

whatsoever on water quality would not be prohibited under § 82-4-227(3)(a), MCA, even

if other mining operations in the area were causing a water-quality-standard violation.

However, while the proposed mining operation must have some causal connection to a

material damage, both the statute and the Department’s rules require the Department to

consider the effects of the proposed operation combined with “the impacts of all previous,

existing and anticipated mining on surface and ground water systems.” Admin. R. M.

17.24.301(32) (2012) (defining “cumulative hydrologic impact area”) (emphasis added).

See also Admin. R. M. 17.24.301(31) (2012) (“‘cumulative hydrologic impacts’ means the

expected total qualitative and quantitative, direct and indirect effects of mining and

reclamation operations on the hydrologic balance.”).

¶66 If the proposed mining operation will have some causal effect on water quality,

DEQ cannot ignore its combination with the “cumulative impact” stemming from “all

previous, existing, and anticipated mining” in the area in its determination of whether the

proposal will lead to a violation. Thus, a proposed mining operation that will have only a
34
small impact on a stream may still fail to be “designed to prevent material damage” if other

anticipated mining in the area has pushed the water body 99% of the way to a water-quality

violation, and the new proposed operation’s small impact is the proverbial straw to break

the water-quality camel’s back. See Trustees for Alaska v. Gorsuch, 835 P.2d 1239, 1246

(Alaska 1992) (interpreting Alaska’s coal mining statute as requiring the agency to

consider the “cumulative impact of all anticipated activities . . . whether or not the activities

are part of the permit under review” and withhold permit approval if “cumulative impact

is problematic” until such problems are resolved).

¶67 The Board found “no evidence that the AM4 Amendment, which is the only

permitting decision at issue in this case, will cause any increase in salinity to the [Creek]

alluvium,” noting that the increase represented “the overall TDS that is added to the

groundwater by all the mining in the area, including previously permitted areas.”

(Emphases in Board order.) But the order also found no “convincing evidence that the

Creek’s existing impairment was previously attributed to operations of the Rosebud Mine.”

In fact, the Board concluded, the evidence indicated that impairments in the lower part of

the Creek likely were attributable to downstream sources such as the town of Colstrip and

those in the upper part of the Creek region likely were “attributable to its inherent nature

as an ephemeral stream and the loss of streamside vegetation, most likely as a result of

agriculture.” The Board emphasized that “there must be some causal connection between

the permitted mining activity and a water quality violation.” DEQ maintains that the

Board’s determination is based on DEQ’s findings: (1) that the 13% increase would be

indistinguishable from natural variations of salinity in the Creek, (2) that the Creek’s
35
existing impairment is likely from non-mining sources, and (3) that the permit amendment

would not change the groundwater class of the Creek’s alluvium. But in the same

discussion, the Board relied on its finding that the permit amendment would not cause

material damage “because it will not increase the pollutant concentration” but only “the

duration of time” during which salt loads are higher. For the same reasons discussed above,

it is unclear from the Board’s order whether its determination of “no material damage”

depends on its discussion of an increase in the duration of water quality impairment as

opposed to other factors in the record. It is further unclear from the Board’s emphasis on

the 13% increase being attributable to “all the mining in the area, including previously

permitted areas,” whether the Board considered the AM4 Permit amendment in the context

of all other mining activities when it determined that the operation was designed to

“prevent material damage to the hydrologic balance outside the permit area.” Section

82-4-227(3)(a), MCA.

¶68 Pursuant to § 82-4-227(3)(a), MCA, the relevant questions the Board should have

asked in reviewing DEQ’s CHIA were (1) whether the cumulative impacts of the permit

proposal and all other “previous, existing and anticipated mining” in the area would lead

to a water quality violation and (2) whether the proposed permit amendment is a cause of

such a violation. Answering both questions in the affirmative would indicate that DEQ

had made an error in issuing the permit.

¶69 In Water for Flathead’s Future, Inc. v. Mont. Dep’t of Envtl. Quality, 2023 MT 86,

412 Mont. 258, 530 P.3d 790, a citizen’s group made a similar argument regarding a

challenge to a Montana Pollutant Discharge Elimination System (MPDES) permit issued
36
pursuant to § 75-5-402, MCA, to a corporation seeking to operate a water bottling facility.

We held that an agency, at the time of issuing a final permit, must consider the individual,

cumulative, and secondary environmental impacts of a proposed action pursuant to

Admin. R. M. 17.4.609(3)(d) (1989). Water for Flathead’s Future, ¶ 31. The Court cited

the definition of “cumulative impact” as:

the collective impacts on the human environment of the proposed action
when considered in conjunction with other past and present actions related
to the proposed action by location or generic type. Related future actions
must also be considered when these actions are under concurrent
consideration by any state agency through preimpact statement studies,
separate impact statement evaluation, or permit processing procedures.

Admin. R. M. 17.4.603(7) (1989). In the case at bar, we consider a different set of

Administrative Rules. However, the definition of cumulative impacts is informative.

Similar to the MPDES rules, Admin. R. M. 17.24.405(6)(c) (2004) also specifies the

applicant must demonstrate that “cumulative hydrologic impacts will not result in material

damage.”

¶70 We affirm the District Court and order remand to the Board to address the potential

cumulative impacts of the permit amendment pursuant to the requirements of

§ 82-4-227(3)(a), MCA.

¶71 Issue Six: Whether the Board of Environmental Review improperly relied upon
evidence regarding aquatic life.

¶72 As part of its assessment to determine whether AM4 would cause material damage

to the Creek’s aquatic life, the CHIA addresses macroinvertebrate surveys conducted on

37
the Creek in the 1970s and a similar survey (the Arcadis report) conducted in 2014 by

Westmoreland’s consultant, Penny Hunter, at the request of DEQ’s hydrologist, Dr. Hinz.15

¶73 The CHIA concluded that the Arcadis report “demonstrated that a diverse

community of macroinvertebrates was using the stream reach. Therefore, the reach

currently meets the narrative standard of providing a beneficial use for aquatic life.”

¶74 Before the Board, Conservation Groups challenged this determination, pointing to

unrebutted evidence that the Arcadis report was neither intended nor appropriate for use in

determining whether the Creek was meeting its C-3 aquatic life support water-quality

standards under MWQA.16 The Board determined that the “narrative standard of providing

a beneficial use for aquatic life” under MSUMRA was distinguishable from the same

standard under MWQA, such that use of a metric that would be unacceptable for the latter

was acceptable for the former. The District Court overturned this determination as

arbitrary and capricious, which Appellants now challenge.

¶75 Appellants contend that the Board and CHIA’s use of the term “beneficial use for

aquatic life” was not a direct reference to the C-3 water-quality standard under MWQA

but, rather, a reference to a distinct standard of the same name under MSUMRA, pointing

15
We note as an initial matter that this issue is a narrow evidentiary issue on whether DEQ could
consider a prior study on aquatic life to support a finding that AM4 is designed to prevent material
damage in the future. We conclude that it was proper for DEQ to evaluate this evidence in its
CHIA, especially given the little weight it was afforded and the other evidence DEQ considered.
16
DEQ uses other metrics, such as the physical characteristics of the streambanks to make such
determinations on ephemeral eastern Montana streams.
38
to Clark Fork 2021 for the proposition that MSUMRA and MWQA serve differing

purposes.

¶76 However, MSUMRA does incorporate water-quality standards by defining

“material damage” to include degradation by coal mining to such an extent that “water

quality standards are violated.” See §§ 82-4-227(3)(a), -203(32), MCA (defining “material

damage”). There is no contention that this reference to “water quality standards” somehow

excludes the detailed water quality standards provided by MWQA. As noted above, Clark

Fork 2021 does not support Appellants’ contentions. Nevertheless, while MSUMRA

incorporates water-quality standards, it does so only in a predictive sense, requiring that a

proposed mining operation be “designed to prevent” such a water-quality standard

violation from happening in the future. Section 82-4-227(3)(a), MCA (emphasis added).

The current status of the Creek’s aquatic life support—whether assessed against a MWQA

standard or some other, lesser standard—is only legally relevant to the MSUMRA

permitting decision inasmuch as it is predictive of future material damage (including

violations of water quality standards).17

¶77 It was within DEQ’s fact-finding purview, in its CHIA, to determine what weight,

if any, to give to the Arcadis Report in making such a prediction about the permit’s effects

on the Creek. DEQ determined in its CHIA that the Arcadis Report established the

existence of “a diverse community of macroinvertebrates” in a particular reach of the

17
The current status of the Creek’s compliance with MWQA water-quality standards could
become relevant under MSUMRA because, as noted elsewhere in this Opinion, extending the
duration of an existing violation may constitute material damage under MSUMRA.
39
Creek, indicating that it was, to a certain extent, “providing a beneficial use for aquatic

life.” Conservation Groups point to no evidence suggesting that DEQ was unaware of the

Arcadis report’s limitations or otherwise inferred too much from its results.18

¶78 Conservation Groups note that the Board’s findings of fact regarding invertebrate

studies on the Creek repeatedly referenced comparisons between the data produced in the

2014 Arcadis Report and that produced in the 1970s, which it described as a baseline

“before a large amount of mining” and that current aquatic life is consistent “with historic

data.” The groups contend that both the CHIA and uncontroverted expert witness

testimony established that direct numerical comparisons were likely to be unreliable in

light of changes in methodology.

¶79 The Board’s action was not arbitrary and capricious. The CHIA’s reference to the

Arcadis Report as demonstrating some amount of aquatic life existing in the Creek did not

render DEQ’s permitting decision unlawful. “[T]o ensure that agency decision-making is

scientifically-driven and well-reasoned, this Court affords ‘great deference’ to agency

decisions implicating substantial agency expertise.” MEIC 2019, ¶ 20 (quoting Winchell,

¶ 11).

¶80 Additionally, the District Court found that the hearing examiner erroneously

allowed the author of the CHIA, Dr. Hinz, to testify as an expert witness on a topic she was

not qualified as an expert on—aquatic life—in violation of M. R. Evid. 702. However, the

hearing examiner ruled that Dr. Hinz would be able to testify as “to what [she] used the

18
Dr. Hinz, who authored that portion of the CHIA, testified as to the limited use to which the
results of the Arcadis Report were put.
40
report for—how [she] used the report, what [she] did with it in terms of the CHIA, and

why [she] needed it, but to the extent that it starts going into this expert area that [she]

admittedly [is] not [an] expert[] in, it will be excluded.” The factual findings in the portion

of the Board order cited to by the District Court and Conservation Groups do not reference

Dr. Hinz’s testimony in support of, or regarding any, substantive assertions on aquatic life.

Rather, the Board order’s factual findings on aquatic life only reference portions of

Dr. Hinz’s testimony that clearly comply with the hearing examiner’s ruling, explaining

her decision-making process in requesting and using the Arcadis Report in the process of

formulating the CHIA and permitting decision. Dr. Hinz did not testify as an expert about

aquatic life, she testified as a fact witness regarding her own decision-making process in

formulating the CHIA that Conservation Groups were challenging as inadequate. The

record contained no indication of a violation of M. R. Evid. 702.

¶81 Montana courts may not substitute their judgment for that of the agency as to the

weight of the evidence on questions of fact. Section 2-4-704(2), MCA. “A finding of fact

is clearly erroneous if it is not supported by substantial evidence in the record, if the

fact-finder misapprehended the effect of the evidence, or if a review of the record leaves

the court with a definite and firm conviction that a mistake has been made.” Nw. Corp.,

¶ 26. “The agency’s experience, technical competence, and specialized knowledge may be

utilized in the evaluation of evidence.” Section 2-4-612(7), MCA. “We therefore defer to

consistent, rational, and well-supported agency decision-making.” MEIC 2019, ¶ 26. The

District Court’s conclusions on the Board’s reliance on admissibility of aquatic life in the

Creek are reversed.
41
¶82 Issue Seven: Whether the District Court erred in its award of attorney fees.

¶83 DEQ appeals from the District Court’s rulings that granted Conservation Groups

attorney fees against DEQ. DEQ argues the District Court erred both in the scope and the

amount of attorney fees awarded. First, it argues the court incorrectly awarded attorney

fees that resulted from the Board proceedings because the court is statutorily limited to

awarding only those attorney fees that arose out of the judicial review. Second, DEQ

argues the court erred in the amount of the award because it found DEQ liable for fees

generated by work Conservation Groups’ attorneys performed specific to the case against

Westmoreland and because it calculated an excessive hourly rate for Conservation Groups’

lead attorney.

¶84 In the proceedings below, the District Court first made a determination as to the

scope of the attorney fees it could award, concluding in its April 21, 2022 Order on

Peti[ti]oners’ Motion for Fees and Costs that, under MSUMRA, Conservation Groups had

demonstrated they were eligible for reasonable attorney fees because they obtained some

degree of success on judicial review, and this favorable ruling arose as a result of their

advocacy efforts. The court further concluded that it was authorized to award Conservation

Groups reasonable attorney fees not only for their actions pertaining to judicial review, but

also for their advocacy at the administrative hearing level. After an evidentiary hearing,

the court awarded Conservation Groups attorney fees of $862,755.00 and reimbursement

of costs in the amount of $33,275.25.19

19
DEQ has not explicitly challenged the award of costs on appeal.
42
¶85 We first consider whether the District Court awarded attorney fees in excess of its

statutory authorization. Section 82-4-251(7), MCA, provides:

Whenever an order is issued under this section or as the result of any
administrative proceeding under this part, at the request of any person, a sum
equal to the aggregate amount of all costs, expenses, and attorney fees as
determined by the department to have been reasonably incurred by the person
for or in connection with the person’s participation in the proceedings,
including any judicial review of agency actions, may be assessed against
either party as the court, resulting from judicial review, or the department,
resulting from administrative proceedings, considers proper.

The District Court concluded that this statute authorized it to award Conservation Groups

their attorney fees for their efforts expended both before that court and before the Board.

¶86 DEQ raised objections in the District Court and renews its argument here, asserting

that § 82-4-251(7), MCA, constrains a district court to awarding attorney fees resulting

from district court proceedings while DEQ has sole authority to make the initial

determination on attorney fees arising from administrative proceedings, including

proceedings before the Board.

¶87 Section 82-4-251, MCA, enacted and numbered § 50-1050 R.C.M. in 1973, initially

contained no provision for the award of attorney fees. In 1979, and after renumbering,

§ 82-4-251(7), MCA, was added as part of Senate Bill 515. The language of this subpart

remains largely the same in the current version, with minor stylistic changes. The purpose

of SB 515 was “to bring [MSUMRA] into Compliance with Public Law 95-87, the Surface

Mining Control and Reclamation Act of 1977.”20 If MSUMRA complied with federal law,

20
Surface Mining Control and Reclamation Act of 1977, Pub. L. 95-87, 91 Stat. 445 (codified as
30 U.S.C. §§ 1201 et seq. (1982)).
43
Montana could assume primary jurisdiction for the regulation of coal mining upon approval

of the Department of the Interior. 30 C.F.R. §§ 730–732. As such, SB 515 included “only

those amendments absolutely essential for compliance with the federal act.” Hearing on

SB 515 before the House Natural Resources Committee, 46th Legislature (Mar. 20, 1979)

(testimony of Sen. Carroll A. Graham, chief sponsor).

¶88 The Legislature enacted SB 515 with the contingency that it would “not become

effective until the secretary of interior has conditionally or finally approved the state’s

permanent regulatory program under Public Law 95-87.” Section 82-4-202, MCA (1979),

Annotations, Compiler’s Comments. On April 1, 1980, the Department of the Interior

conditionally approved Montana’s regulatory program. Conditional Approval of the

Permanent Program Submission From the State of Montana Under the Surface Mining

Control and Reclamation Act of 1977, 45 Fed. Reg. 21560 (April 1, 1980). The Secretary

of the Interior determined that Montana had met the minimum requirements of SMCRA

and the Federal permanent program regulations except for minor deficiencies. Conditional

Approval, 45 Fed. Reg. at 21560. The Secretary determined, in relevant part, “[t]he

Montana program does not provide for award of costs in administrative proceedings,

including attorneys fees, in accordance with Sections 520 and 525 of SMCRA and 43 CFR

4.1290 et seq. . . . [A] State program must include [similar] provisions.” Conditional

Approval, 45 Fed. Reg. at 21569. The Secretary provided that the conditional approval

would terminate on November 1, 1980, unless Montana submitted “copies of fully enacted

regulations containing provisions which are the same or similar to those in 43 CFR

4.1290-4.1296, relating to the award of costs, including attorneys fees, in administrative
44
proceedings, or otherwise amends its program to accomplish the same result” by that date.

Conditional Approval, 45 Fed. Reg. at 21579.

¶89 In response, the Board of Land Commissioners and Department of State Lands

proposed new administrative rules “outlining the situations in which attorney fees, costs,

and expenses may be awarded in administrative proceedings under [MSUMRA] and

providing procedures for petitioning for such an award.” 15 Mont. Admin. Reg. 2329-2331

(Aug. 14, 1980). These proposed new rules were ultimately adopted, with revisions after

public comment, and became effective on October 31, 1980. Admin. R. M.

26.4.1307-1309 (1980) (renumbered as Admin. R. M. 17.24.1307–1309 (1996)). Thus

MSUMRA met the federal requirements and Montana’s regulatory program was fully

compliant with SMCRA.

¶90 In determining whether it could award attorney fees to Conservation Groups for

both the judicial review and administrative hearings process, the District Court considered

the similarities between MSUMRA and SMCRA and further considered the legislative

history that culminated in the Department of Interior approving MSUMRA, including the

addition of the Administrative Rules at issue here. The court determined that under

MSUMRA, like SMCRA, a member of the public may receive an award of reasonable

costs and attorney fees upon a showing of eligibility and entitlement. Under MSUMRA,

the criteria for determining eligibility and entitlement are found in § 82-4-251(7), MCA,

and Admin. R. M. 17.24.1307–1309 (1996).

¶91 The District Court first determined that Conservation Groups are eligible for an

award of attorney fees because they obtained some degree of success under the court’s
45
order, and they are entitled to an award because the order resulted from their advocacy

efforts. See W. Va. Highlands Conservancy, Inc. v. Norton, 343 F.3d 239, 245 (4th Cir.

2003) (interpreting the corresponding provisions of SMCRA). As noted in the Order on

Petitioners’ Motion for Fees and Costs, DEQ does not dispute that Conservation Groups

are eligible for and entitled to some of their attorney fees, but it alleges the District Court

exceeded its authority with the scope of the attorney fees awarded.

¶92 DEQ maintains that § 82-4-251(7), MCA, gives DEQ the authority to determine

attorney fees resulting from administrative proceedings like those before the Board, while

the District Court has the authority to determine the same for court proceedings. The

District Court rejected DEQ’s argument that the court was limited in awarding attorney

fees to those incurred solely on judicial review. According to the court, because

Conservation Groups’ eligibility for attorney fees under § 82-4-251(7), MCA, was

“triggered” when the District Court issued its order, that was the point when Conservation

Groups achieved some degree of success. See § 82-4-251(7), MCA (“Whenever an order

is issued . . . .”). The court reasoned that Conservation Groups could not have sought

attorney fees from the Board’s final order because that order did not result in any eligibility

or entitlement to such award, and neither DEQ nor the Board issued a “final order” that

entitled Conservation Groups to an award. Rather, the work Conservation Groups’

attorneys performed at the administrative level, where they were unsuccessful, led to

Conservation Groups’ success upon judicial review. Thus, the District Court concluded

that the entirety of Conservation Groups’ entitlement to attorney fees resulted solely from

46
the judicial review and pursuant to § 82-4-251(7), MCA, and therefore the court could

assess those fees against DEQ.

¶93 As the court explained, the administrative proceedings “ultimately culminate[d]” in

a successful ruling on judicial review. Thus, the question of whether DEQ determines the

amount of attorney fees resulting from administrative proceedings is irrelevant here, as

Conservation Groups had no entitlement to fees for work they did at the administrative

level until they succeeded upon judicial review. See Save Our Cumberland Mountains,

Inc. v. Hodel, 651 F. Supp. 1528, 1533 (D.D.C. 1986) (rejecting government’s argument

that petitioners were not entitled to attorney fees for work undertaken on unsuccessful

appeal because they ultimately achieved success on a petition for rehearing). Therefore,

under § 82-4-251(7), MCA, and the associated administrative rules, the District Court had

the legal authority to award attorney fees to Conservation Groups for their work at the

administrative level and on judicial review.

¶94 The cases that DEQ relies upon are distinguishable. As DEQ noted in its brief in

opposition to Conservation Groups’ motion for attorney fees below, in conducting judicial

review, the District Court “sits in an appellate posture,” and in this case Conservation

Groups only obtained success upon judicial review. In most of the cases DEQ relies on in

its brief before this Court, the litigant first obtained a favorable ruling at the administrative

level. Norton, 343 F.3d at 241–42 (litigant achieved some level of success at the

administrative level when the Interior Board of Land Appeals remanded the case to the

Department of Interior’s Office of Surface Mining Reclamation and Enforcement for the

development of an adequate record and a new agency decision); Black Mesa Water Coal.
47
v. Jewell, 776 F.3d 1055 (9th Cir. 2015) (litigant was part of consolidated challenges that

obtained some favorable rulings at the administrative level); Powder River Basin Res.

Council v. Wyo. Envtl. Quality Council, 869 P.2d 435 (Wyo. 1994) (litigant substantially

prevailed at the administrative level). In the remaining case, the trial court determined

attorney fees were not available because of the type of administrative proceeding that

occurred. Utah Int’l, Inc. v. Dep’t of Interior, 643 F. Supp. 810 (D. Utah 1986) (attorney

fees not available for non-adversarial, non-enforcement administrative proceedings). They

are thus inapposite.

¶95 Next, DEQ argues that the District Court abused its discretion in the amount of

attorney fees it awarded to Conservation Groups by failing to parse the hours claimed by

Conservation Groups’ attorneys, and by setting the hourly rate for attorney Shiloh

Hernandez at $350 per hour. DEQ objected to both the number of hours billed and the

rates requested by Conservation Groups in the District Court. DEQ reserved its right to

challenge the reasonableness of the requested attorney fees and present arguments and

expert witnesses at a hearing.

¶96 The court held this hearing on May 6, 2022. Conservation Groups offered attorney

Randy Bishop as their expert witness. On cross-examination, counsel for DEQ

unsuccessfully attempted to elicit from Bishop specific information regarding Hernandez’s

work habits and billing practices. DEQ’s counsel then asked that Conservation Groups’

attorneys be made available to testify; attorney Roger Sullivan, representing Conservation

Groups, responded that Hernandez was available. DEQ’s counsel then complained that

there was insufficient time left to question both Hernandez and DEQ’s expert witness. The
48
court then advised, “[i]f you have questions about Mr. Hernandez’s bill he’s probably the

only one that can answer those. . . [i]f you want to point out parts that you think are inflation

of time or whatever you can probably do that in a proposed order and draw attention to

those parts of the bill that you think are problematic . . . .” Ultimately, DEQ did not call

Hernandez as a witness.

¶97 The hearing proceeded with DEQ calling its expert witness, attorney Maxon Davis,

to testify. On cross examination, Davis was asked to clarify whether he proposed reducing

the number of hours Conservation Groups’ attorneys were claiming. Davis responded that

he was not challenging the number of hours billed but only the hourly rate at which those

hours were billed. Davis was also asked his “opinion about DEQ being expected to pay

for fees that were in response to another party’s filing.” Davis opined that it was an open

question whether such fee shifting was proper and while he believed the answer was best

left to the court, he was bothered by the idea that Montana taxpayers might have to pay for

time spent by Conservation Groups’ attorneys responding to Westmoreland.

¶98 At the close of the hearing, the court asked the parties to provide proposed orders

by May 11, 2022. On May 13, 2022, the District Court issued the order that DEQ

challenges on appeal. Pertinent to the challenges DEQ makes, the District Court declined

to reduce the hours claimed by Conservation Groups, explaining that it was “disinclined to

second-guess the reasonableness of the hours invested by counsel for the Conservation

Groups.” It quoted Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008), in

support: “By and large, the court should defer to the winning lawyer’s professional

judgment as to how much time he was required to spend on the case; after all, he won, and
49
might not have, had he been more of a slacker.” Next, it concluded that Hernandez was

entitled to an hourly rate of $350. Given Hernandez’s billing of 1,826.65 hours, the court

calculated his portion of the awarded attorney fees at $639,327.50—the vast majority of

the total attorney fees awarded.

¶99 DEQ argues that this Court should conclude that the District Court abused its

discretion in awarding attorney fees in two ways: (1) part of the award was for time

Conservation Groups billed for litigating against Westmoreland, even though DEQ was

aligned with Conservation Groups on some of those issues; and (2) the rate of $350 per

hour for Hernandez’s work is too high.

¶100 In response, Conservation Groups argue that this Court should not address DEQ’s

argument regarding the hours Conservation Groups’ attorneys billed for litigating against

Westmoreland because DEQ did not adequately make this argument before the District

Court. Conservation Groups note that DEQ’s prehearing brief did not raise this argument,

its expert witness declined to challenge the number of hours billed but challenged only the

hourly rate, and DEQ only briefly addressed this argument in its posthearing proposed

order.

¶101 In reply, DEQ points to the District Court’s direction at hearing that DEQ had leave

to point out “parts that you think are inflation of time” in its posthearing proposed order.

DEQ asserts that it then enumerated specific billing entries to the court that it alleges were

incurred against Westmoreland, along with other billing entries that DEQ disputes. DEQ

accuses the District Court of “failure to engage in meaningful analysis parsing the hours

claimed by [Conservation Groups’] attorneys.”
50
¶102 In Utah Int’l, the U.S. District Court of Utah held that under SMCRA, the

petitioners, who were otherwise entitled to attorney fees because they had obtained some

degree of success, were not entitled to attorney fees against the United States on those

issues where the petitioners and the United States were aligned against another party to the

litigation. Utah Int’l, 643 F. Supp. at 818–20. Noting that the petitioners in Utah Int’l had

cited no cases in which one prevailing party recovered fees from another prevailing party,

the U.S. District Court concluded that such award would not be proper under § 525(e) of

SMCRA, 30 U.S.C. § 1275(e)—the federal equivalent of § 82-4-251(7), MCA. Utah Int’l,

643 F. Supp. at 819.

¶103 We similarly conclude that it is proper to remand consideration of this issue to the

District Court for the purpose of excluding from the attorney fee award any hours billed

for work Conservation Groups’ attorneys performed in relation to those issues in the

litigation on which Conservation Groups and DEQ were aligned against Westmoreland.21

We disagree with Conservation Groups’ argument that DEQ failed to preserve this issue,

as it set forth specific objections in its posthearing proposed order with leave of court.

¶104 Finally, DEQ argues that the District Court abused its discretion when it concluded

that Hernandez was entitled to a billing rate of $350 per hour. In reaching its determination,

the District Court used the lodestar calculation, one of the primary methods of calculating

reasonable fees that is recognized by Montana courts. Gendron v. Mont. Univ. Sys.,

21
Whether Conservation Groups could recover their remaining fees from Westmoreland under
§ 82-4-251(7), MCA, is not at issue because Conservation Groups did not seek such relief in the
District Court. See Utah Int’l, 643 F. Supp. at 819.
51
2020 MT 82, ¶ 12, 399 Mont. 470, 461 P.3d 115. There is a strong presumption that the

lodestar represents the reasonable fee to which counsel is entitled. Norval Elec. Coop.,

Inc. v. Lawson, 2022 MT 245, ¶ 52, 411 Mont. 77, 523 P.3d 5. In determining the lodestar

calculation, the court further evaluated the reasonableness of hours and rates using the

seven factors enumerated in Plath v. Schonrock, 2003 MT 21, ¶ 36, 314 Mont. 101, 64 P.3d

984.

¶105 We will not reiterate the court’s analysis here but will focus on the two ways in

which DEQ alleges the court erred in its calculation. First, DEQ argues that the District

Court improperly took the hourly rate charged by Westmoreland’s attorneys into

consideration in determining whether the rate requested by Conservation Groups was

appropriate. As noted above, the District Court evaluated the reasonableness of hours and

rates using the Plath factors. However, as Plath, ¶ 36, holds, the trial court may consider

other factors in addition to those enumerated. In this case, in addition to its application of

the Plath factors, the District Court set forth additional considerations, one of which is that

Westmoreland’s counsel indicated to the court that, “in 2017 his firm charged rates

‘generally higher’ than $295–$395 per hour ‘for the specialized services involved in this

case.’” However, the court was not persuaded by this evidence, finding DEQ’s argument

that Admin. R. M. 17.24.1309(1)(c) (1996)—which provides that the determination of the

rate for attorney fees should consider “the customary commercial rate of payment for such

services in the area”—and Davis’s testimony regarding the hourly rate had convinced the

court to reduce the requested hourly rate to $350 per hour for Hernandez’s work in this

matter. The mere fact that the court considered the rates charged by Westmoreland’s
52
attorneys in 2017 in determining the hourly rate to award Conservation Groups does not

constitute an abuse of discretion.

¶106 Next, DEQ argues that the District Court failed to explain why it awarded

Hernandez an hourly rate of $350 when his supervisor Jenny Harbine was awarded only

$175 per hour “in a similar environmental case.” However, the court addressed this

argument in its order: it noted that the case DEQ relied upon was decided in February 2009

and while Harbine is now a more senior attorney than Hernandez, she was not at that time

and hourly rates for attorneys have increased in the 14 years since that award was made.

We conclude the District Court did not abuse its discretion in awarding Hernandez a higher

hourly rate of pay because his now-supervisor, who at that time had significantly less

experience than Hernandez does now, received a lower hourly rate in a matter that was

litigated over 14 years ago.

¶107 Finally, we address Conservation Groups’ request that we award them additional

attorney fees on appeal. In support of their request, they rely on § 82-4-251(7), MCA, and

Houden v. Todd, 2014 MT 113, 375 Mont. 1, 324 P.3d 1157. Houden is readily

distinguishable, as we awarded attorney fees in that case because the contract which the

parties had litigated provided the prevailing party the right to attorney fees and costs.

Houden, ¶ 53. Section 82-4-251(7), MCA, provides that attorney fees may be assessed on

judicial review if the court considers it proper. We decline to award additional attorney

fees in this instance.

¶108 We remand to the District Court for recalculation of the amount of fees consistent

with the holdings on this issue herein.
53
¶109 Issue Eight: Whether the Board of Environmental Review was properly included as
a party on judicial review.

¶110 Finally, the Board appeals from the March 12, 2020 Order Denying Respondent

Montana Board of Environmental Review’s Motion to Dismiss. The Board argues that the

District Court erred in ruling that the Board is a proper party in this case.

¶111 The Board is a quasi-judicial board that consists of seven members appointed by the

governor. Section 2-15-3502(2), (4), MCA. “‘Quasi-judicial function’ means an

adjudicatory function exercised by an agency, involving the exercise of judgment and

discretion in making determinations in controversies.” Section 2-15-102(10), MCA.

¶112 The Board is attached to DEQ for administrative purposes only. Section

2-15-3502(5), MCA. As such, it exercises its quasi-judicial function independently, and

without approval or control, of DEQ. Section 2-15-121(1)(a)(i), MCA.

¶113 When Conservation Groups filed the Petition for Review of Final Agency Action in

the District Court, they named the Board as a defendant. The Board then moved to dismiss,

arguing that it was not a proper party to the request for judicial review. The court denied

its motion, concluding that although the Board was not a required party pursuant to

M. R. Civ. P. 19, the agency that issues a final decision in a contested case may be a party

to a case seeking judicial review of that final decision. Relying on Forsythe v. Great Falls

Holdings, LLC, 2008 MT 384, 347 Mont. 67, 196 P.3d 1233, the court denied the motion

to dismiss, concluding that the Board may be a party because Conservation Groups alleged

specific errors on the Board’s part and sought relief against the Board.

54
¶114 On appeal, the Board argues that Conservation Groups should not have named it as

a party, and in denying its motion to dismiss, the District Court misapprehended Forsythe’s

applicability. The Board argues that this case is more similar to Young v. Great Falls, 194

Mont. 513, 632 P.2d 1111 (1981), and Hilands Golf Club v. Ashmore, 277 Mont. 324, 922

P.2d 469 (1996), in which this Court determined that the respective adjudicating boards

were not parties to those requests for judicial review. The Board asserts that it has been

needlessly forced to expend attorney fees and time monitoring this case and argues that we

should hold that the Board shall not be named a party to judicial reviews of its decisions

unless the Board is a party to the contested case, designated a party by statute, or the issuer

of a contested permit.

¶115 Conservation Groups maintain that the District Court correctly denied the Board’s

motion to dismiss because the Board was a permissible party even though it was not a

necessary party under M. R. Civ. P. 19. They also point out that agencies that issue rulings

subject to judicial review often appear as parties on judicial review, although these agencies

participate in differing degrees. Conservation Groups assert that agencies regularly

participate as parties to judicial reviews outside of the three circumstances suggested by

the Board and urge this Court not to limit participation to the categories the Board requests.

¶116 In Forsythe, Great Falls Holdings, LLC (GFH), applied to the Montana Department

of Revenue (DOR) to transfer ownership of a beer/wine license. Forsythe, ¶ 8. Certain

individuals (Protestors) objected to GFH’s application, and DOR then appointed a hearing

examiner to conduct a contested case hearing. Forsythe, ¶ 9. The hearing examiner

ultimately granted summary judgment in GFH’s favor, in effect granting its application to
55
transfer ownership of the license. Forsythe, ¶ 11. Protestors then petitioned for judicial

review in the District Court, arguing in part that the hearing examiner incorrectly took

judicial notice of findings of fact from a similar proceeding and that the hearing examiner

unlawfully restricted Protestors’ arguments. Forsythe, ¶ 12. Protestors opposed DOR’s

attempts to appear as a party to the judicial review. Forsythe, ¶ 12. However, the District

Court ruled that DOR could participate as a party and appear in the proceedings. Forsythe,

¶ 16.

¶117 Protestors appealed that ruling, among others. Forsythe, ¶ 16. On appeal, Protestors

relied on Young, 194 Mont. at 515–16, 632 P.2d at 1112–13, in which we held that an

administrative board is not an indispensable party for purposes of judicial review, and

Hilands, 277 Mont. at 327, 922 P.2d at 471, in which we did not disturb a district court

ruling that denied an agency’s motion to intervene on judicial review. We found Young

and Hilands distinguishable because those cases “involved situations . . . where a party

sought redress through the administrative process against another party for alleged

improper conduct.” Forsythe, ¶ 30. However, Forsythe involved a situation where the

judicial review was a review of DOR’s conduct in deciding to allow GFH’s license transfer

application. Forsythe, ¶ 31. Thus, we held that DOR “must be granted the opportunity on

judicial review to defend its conduct [in issuing the license].” Forsythe, ¶ 31.

¶118 In the present case, the District Court determined that the Board is a proper party

under Forsythe’s reasoning because it concluded that Conservation Groups would be

unable to obtain relief for alleged errors made by the Board if the Board was not a party.

The court noted that Conservation Groups had petitioned for specific relief against the
56
Board, including a declaration that the Board violated MAPA, MSUMRA, and the

Montana Constitution, and reversal of the June 6, 2019 Board order. On appeal, however,

the Board points out that the agency at issue in Forsythe was a proper party because it was

the entity that decided to grant the licensing application whereas in the present case, the

Board was only the entity that heard the contested case regarding DEQ’s decision to grant

the AM4 Permit. We agree with the Board.

¶119 The Board’s role in a contested case proceeding is to receive evidence, enter

findings of fact based on the preponderance of the evidence presented, and then enter

conclusions of law based on those findings. MEIC 2005, ¶ 22. Had the Board not been a

party to this action, the specified relief—declarations of legal errors and reversal of the

decision—would have still been available. A declaration that a deciding body erred as a

matter of law and overturning the decision of a judicial entity are within the types of relief

that courts routinely grant when they are reviewing the decision of a lower tribunal. And

yet in those instances, and in the present case, it is not necessary that the tribunal be a party

for that relief to be available. We agree with the Board that the District Court erred in not

granting dismissal in this instance and we reverse the District Court’s order on this issue.

¶120 We remand to the District Court for an order dismissing the Board as a party in this

matter.

CONCLUSION

¶121 DEQ and Westmoreland argue that any errors were not prejudicial and the Board

order should therefore have been upheld. We have concluded that the following constituted

errors in the Board’s decision:
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  Declining to address Conservation Groups’ arguments regarding the CHIA’s
analysis that Conservation Groups did not raise before the CHIA was published;

 Ruling as a matter of law that an extension of the duration of an existing water
quality violation could not constitute material damage under MSUMRA; and

 Ruling that impacts from mining operations other than the permit area could not be
considered as cumulative impacts, even if the permit itself played some causal role
in a violation.

¶122 These errors are not harmless. The record shows that DEQ erred in its assessment

and permitting decision. Remand to the Board will require reanalyzing much of the

applicable administrative record and resolving numerous factual questions to then examine

the ultimate conclusion on material damage.22 Reweighing of evidence is not an

appropriate role for a court on judicial review of agency decisions. Section 2-4-704(2),

MCA. The Board has technical expertise that this Court lacks and is the appropriate venue

for resolving these issues. See MTSUN, ¶ 52 (recognizing agency’s superior technical

knowledge). On remand, it is within the purview of the Board to determine if more

fact-finding is needed, or if a decision can be reached pursuant to the correct legal standards

described in this Opinion. See MEIC 2005, ¶ 26.

¶123 The District Court’s conclusions regarding Issues One, Three, Six, Seven, and Eight

are reversed. We affirm the District Court on Issues Two, Four, and Five. This matter is

remanded to the District Court for recalculation of attorney fees as determined herein in

Issue Seven, and for dismissal of the Board as a party as determined herein in Issue Eight.

22
Additional fact finding will likely be needed as Conservation Groups were only able to admit
offers of proof on their remaining issues, which we concluded were proper under Issue Two.
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Moreover the District Court is directed to remand this matter to the Board of Environmental

Review for proceedings consistent with this Opinion.

¶124 Finally, we affirm and reinstate the District Court’s order vacating the AM4 Permit

pending remand to the Board for rehearing and analysis consistent with this Opinion.

See Park Cty. Envtl. Council v. Mont. Dep’t of Envtl. Quality, 2020 MT 303, 402 Mont.

168, 477 P.3d 288.

/S/ MIKE McGRATH

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE

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