Bitterrooters for Planning, Inc. v. Montana Department of Environmental Quality

09/05/2017

DA 16-0429
Case Number: DA 16-0429

IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 222

BITTERROOTERS FOR PLANNING, INC., and
BITTERROOT RIVER PROTECTIVE ASSOCIATION, INC.

Plaintiffs and Appellees,

v.

MONTANA DEPARTMENT OF ENVIRONMENTAL
QUALITY, an agency of the State of Montana,

Defendant and Appellant,

STEPHEN WANDERER and GEORGIA FILCHER,

Defendants, Intervenors and Appellants.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADV 15-32
Honorable Mike Menahan, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Alan F. McCormick (argued), Stephen R. Brown, Garlington, Lohn,
Robinson, Missoula, Montana

Edward Hayes (argued), Kirsten H. Bowers, Special Assistant
Attorneys General, Helena, Montana

For Appellees:

Jack R. Tuholske (argued), Tuholske Law Office, P.C., Missoula,
Montana

David K. W. Wilson, Jr., Morrison, Sherwood, Wilson, & Deola, Helena,
Montana
 For Amicus:

Derf L. Johnson, Montana Environmental Information Center,
Helena, Montana

Argued and Submitted: March 29, 2017
Decided: September 5, 2017

Filed:

__________________________________________
Clerk

2
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 The Montana Department of Environmental Quality (DEQ) appeals from an order

of the Montana First Judicial District Court granting summary judgment to Bitterrooters

for Planning, Inc., and Bitterroot River Protective Association, Inc., (collectively

Bitterrooters) that DEQ violated the Montana Environmental Policy Act1 (MEPA) by

issuing a wastewater discharge permit for an unnamed “big box” retail merchandise store

near Hamilton, Montana, without considering environmental impacts of the construction

and operation of the facility other than water quality impacts and impacts of the

construction of the required wastewater treatment system. Intervenors and current owners

of the site, Stephen Wanderer and Georgia Filcher (Landowners), join that appeal and

further appeal the District Court’s related summary judgment that MEPA requires DEQ to

identify the owner or operator of the contemplated retail store. We reverse, in part, and

affirm, in part.

ISSUES

1. Does MEPA require DEQ to consider non-water quality related environmental
impacts of the construction and operation of a retail store facility as secondary
impacts of the issuance of a Montana Water Quality Act (MWQA) permit to
discharge facility wastewater into the ground from an onsite wastewater treatment
system?

2. Does MEPA require DEQ to identify the actual owner or operator of a wastewater
treatment facility prior to issuing a MWQA groundwater discharge permit?

1
Title 75, Chapters 1-3, MCA.

3
 BACKGROUND

¶2 On April 3, 2014, DEQ received an application for a Montana groundwater

pollution control system (MGWPCS) permit2 to discharge Level 2 wastewater3 into Class 1

groundwater on the site of a contemplated commercial development at the intersection of

U.S. Highway 93 and Blood Lane near Hamilton, Montana. The contemplated discharge

would occur via a proposed onsite wastewater treatment facility and drainfield designed to

treat sanitary and floor drain discharges from a 156,529 square-foot retail store facility to

be constructed on the site. The groundwater discharge would eventually migrate

down-gradient to the nearby Bitterroot River in Ravalli County.

¶3 DEQ received the application under submittal letter, dated March 31, 2014, from

CT Consultants, an engineering firm in Columbus, Ohio. The letter bore the signature of

John D. Zaleha, E.I., “Project Engineer.” The application consisted of DEQ standard

Forms 1 and GW-1 with referenced attachments. As supplemented at DEQ’s request, the

application identified the type and nature of the contemplated facility or operation by

reference to a Standard Industrial Code (SIC 5311) indicating a retail merchandise and

grocery facility. An included project site map indicated a large retail facility and parking

lot that would together cover approximately half of the 16.54 acre site. The application

2
Sections 75-5-401 through -405, MCA (DEQ duty to regulate wastewater discharge pursuant to
Board of Environmental Review rules), and Admin. R. M. Title 17, chapter 30, parts 1 and 10
(MGWPCS rules).
3
A “Level 2 treatment” system is a subsurface wastewater treatment system that “(a) removes at
least 60% of total nitrogen as measured from the raw sewage load to the system or systems or
(b) discharges a total nitrogen effluent concentration of 24 mg/L or less.” Admin. R. M.
17.30.702(11). The proposed wastewater treatment facility was designed to remove greater than
90 percent of total nitrogen.

4
listed the various types of contemplated effluents with their respective characteristics. As

proposed, the treatment system would on average handle 5,100 gallons of effluent from

sanitary wastes (95%) and floor drains (5%). As supplemented, except for identification

of the contemplated facility name and the actual contemplated owner or operator, the

application included all standard information typically required by DEQ for issuance of a

MGWPCS permit.

¶4 The certification and signature sections of both DEQ application forms listed

Ravalli County real estate broker Lee Foss (Foss) as the permit applicant. Section C of

Form 1 also listed Foss as the “Facility Contact.” The “Facility Information” sections of

both forms listed the property’s state property tax identification number (Parcel #698800)

as the “Facility Name.” Section F of Form 1 listed Foss as the “Applicant (Operator)” of

the contemplated facility and that the listed “Operator” was not the property owner.

¶5 By correspondence to Foss dated April 21, 2014, DEQ identified and requested

additional information regarding various application “deficiencies” including, inter alia,

clarification of the name of the facility and the name of the permitee who would be “the

responsible entity” to insure compliance with permit conditions for the authorized

discharge. By subsequent correspondence, CT Consultants, through Project Engineer

Zaleha, reiterated that the facility name was Parcel #698800 and that Foss would be the

permitee, as originally listed. DEQ’s Supplemental Responses to Plaintiffs’ First

Discovery Requests indicated that the agency’s Director specifically “asked Mr. Foss to

disclose the identity of the developer of the property” but “Mr. Foss declined to do so.”

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¶6 It is undisputed on the record that real estate broker Lee Foss had no intention of

actually owning or operating the contemplated facility. He requested the MGWPCS permit

to facilitate the sale of the property to a particular third-party known to Foss and

Landowners. Upon sale of the property, Foss would transfer the permit to the intended

owner or operator who would construct and operate the retail store.4

¶7 In May 2014, DEQ issued a Draft Checklist Environmental Assessment (draft EA),

a draft wastewater discharge permit, and a permit fact sheet. The draft EA identified the

proposed agency action as the issuance of a permit authorizing “discharge of treated

domestic water via a subsurface drainfield [pursuant to] the Montana Groundwater

Pollution Control System (MGWPCS) permit program” established by Admin. R. M.

Title 17, chapter 30, part 10. The draft EA stated that the limited purpose of the permit

was:

to regulate the discharges of pollutants to state waters from the regulated
facility. Issuance of an individual permit will require the applicant to
implement, monitor and manage practices to prevent pollution and the
degradation of ground water.

The draft permit specified allowable discharge limits for total nitrogen and total

phosphorus and specified ongoing water quality monitoring and reporting measures

required by DEQ. The permit fact sheet described the wastewater treatment system, point

of discharge effluent limits, site hydrogeology, and vicinity groundwater quality issues.

4
Opposition comments in the administrative record presume that the contemplated retail store will
be a Walmart store.

6
The fact sheet further explained DEQ’s rationale for the proposed terms and conditions of

the permit.

¶8 The draft EA concluded that, as treated and discharged beyond the “approved

mixing zone” on the property, the contemplated wastewater discharge would not exceed

applicable water quality standards and thus would have no “significant adverse effects [on]

the human and physical environment.” The draft EA referenced a similar lack of

significant impact on various standard physical environment checklist factors. Inter alia,

the draft EA included a statement that “construction of the facility will alter” the existing

undeveloped use of the land but not impact any “listed vegetative species.” Though finding

no significant adverse impact on various standard human environment checklist factors,

the draft EA concluded that the construction and operation of “the facility” would have the

potential to increase commercial activity in the area, increase traffic in the area, create

temporary jobs during construction, create permanent jobs post-construction, and increase

local tax revenue.

¶9 DEQ received written comments from approximately 160 individuals and members

of local organizations. More than 80 people attended a public hearing on September 18,

2014. Due to the high level of public interest and technical difficulties with its electronic

public comment submission system, DEQ extended the public comment period until

October 15, 2014. On November 17, 2014, DEQ released a final EA and associated fact

sheet and concurrently issued the requested wastewater discharge permit to Foss as

originally recommended in the draft EA.

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¶10 With a few exceptions, the final EA mirrored the draft EA. Based on new

information provided by commenters regarding the existence of a down-gradient natural

spring near the project area, the final EA noted that DEQ lowered the permissible level of

phosphorous discharge from the proposed wastewater treatment facility. Inter alia, the

document concluded that the treatment system and expected wastewater discharges to

groundwater would result in “no potential adverse impact to elk winter range.”

¶11 DEQ organized public comments by topic and prepared 106 formal responses to

address public concerns. The agency noted that most issues raised by commenters were

“beyond the scope” of the agency’s EA analysis, and declined to address various stated

public concerns about non-water quality related impacts of the construction and operation

of the larger retail facility, including the potential spread of noxious weeds, “light

pollution,” noise pollution, air pollution, soil pollution, permanent traffic increases, traffic

safety, building aesthetics, scenic degradation, the risk of decreases in nearby residential

property values, and the effect of marketplace competition on other local businesses and

employees. The final EA further stated that DEQ had no authority to require the developer

to build at an alternative site in Hamilton to allow connection to the city sewage treatment

system and thereby eliminate the need for the contemplated groundwater discharge. The

final EA did address questions regarding the adequacy of self-monitoring of the treatment

facility by the owner or operator and public perception of a need for additional down-

gradient water quality monitoring.

¶12 The final EA referenced various secondary impacts identified in the draft EA, but

this time more narrowly characterized them as impacts resulting from the construction of

8
the subject wastewater treatment system rather than impacts of the larger construction and

operation of the retail facility. The final EA ultimately concluded that MEPA did not

require a formal environmental impact statement (EIS) “because the project lacks

significant adverse effects to the human or physical environment.” With reference to

DEQ’s limited authority to regulate groundwater discharges “to ensure the protection of

the beneficial uses of state waters and compliance with the applicable water quality

standards,” the EA concluded that DEQ complied with all applicable MEPA requirements.

¶13 On January 14, 2015, Bitterrooters petitioned the Montana First Judicial District

Court for judicial review on the asserted grounds that DEQ’s wastewater discharge

permitting process violated the Montana Water Quality Act (MWQA), MEPA, and the

public’s right to participate in governmental deliberations under Article II, Section 8 of the

Montana Constitution and § 2-3-101, MCA, et seq. Bitterrooters alleged that the issuance

of the wastewater discharge permit violated MWQA by failing to adequately consider the

impact of the contemplated wastewater discharge on the water quality of the nearby

Bitterroot River and tributaries. They alleged that the permit violated both MWQA and

MEPA by failing to adequately consider the cumulative water quality impacts of

wastewater discharges from the contemplated retail facility in conjunction with previously

permitted discharges from the nearby Grantsdale subdivision. Bitterrooters asserted that

the process further violated MEPA by failing to adequately consider the secondary impacts

of the larger construction and operation of the retail facility unrelated to water quality. On

May 16, 2016, on consideration of the parties’ respective motions to dismiss and for

summary judgment pursuant to M. R. Civ. P. 12(b)(6) and 56, the District Court:

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 (1) dismissed Bitterrooters’ right-to-participate claim as time-barred by the
applicable statute of limitations, §§ 2-3-114 and -213, MCA;

(2) granted summary judgment that DEQ violated MWQA by failing to
adequately consider:

(A) the effect of the contemplated discharge of nitrate-contaminated
groundwater on the quality of nearby surface waters in violation of
§ 75-5-301(5)(d), MCA, and Admin. R. M. 17.30.715(1)(d); and

(B) the cumulative water quality effects of wastewater discharges from
the contemplated retail facility and the nearby Grantsdale subdivision
in violation of Admin. R. M. 17.30.715(2)(a);

(3) granted summary judgment that DEQ violated MEPA by failing to
adequately consider:

(A) the cumulative water quality effects of wastewater discharges from
the contemplated retail facility and the nearby Grantsdale subdivision
as required by § 75-1-208(11), MCA, and Admin. R. M. 17.4.603(7)
and (12); .609(3)(d) and (e);

(B) impacts of the construction and operation of the contemplated retail
facility as secondary impacts of issuance of the wastewater discharge
permit in violation of Admin. R. M. 17.4.603(12) and (18) and
.609(3)(d) and (e); and

(4) granted summary judgment that Admin. R. M. 17.4.609(3)(d) (criteria for
evaluation of cumulative and secondary impacts of state action on physical
environment) required DEQ to identify the “facility operator if the operator’s
identity has the potential to impact vegetation, aesthetics, human health and
safety, industrial and commercial activities, employment, tax revenues,
demand for government services, or other environmental resources.”

¶14 DEQ appeals only the District Court’s ruling that it violated MEPA by failing to

consider environmental impacts of the construction and operation of the facility other than

water quality impacts and impacts of the related construction of the required wastewater

treatment system. Landowners join DEQ’s appeal and further separately appeal the District

10
Court’s ruling that Admin. R. M. 17.4.609(3)(d) requires disclosure of the identity of the

actual contemplated owner or operator of the retail facility.

STANDARDS OF REVIEW

¶15 We review a district court’s grant or denial of summary judgment, and related

conclusions of law, de novo for correctness. Smith v. BNSF Railway, 2008 MT 225, ¶ 10,

344 Mont. 278, 187 P.3d 639; Montana Trout Unlimited v. Montana Dep’t of Nat. Res. &

Conserv., 2006 MT 72, ¶ 17, 331 Mont. 483, 133 P.3d 224. The standard of review of the

sufficiency of an agency’s environmental review under MEPA is whether the decision was

unlawful or arbitrary and capricious. Section 75-1-201(6)(a)(iii), MCA; Montana Wildlife

Fed. v. Mont. Bd. of Oil & Gas Conserv., 2012 MT 128, ¶ 25, 365 Mont. 232, 280 P.3d

877. An agency decision is unlawful if it does not comply with governing laws and

administrative rules. North Fork Preservation Ass’n v. Dep’t of State Lands, 238 Mont

451, 459, 778 P.2d 862, 867 (1989). We will sustain an agency’s interpretation of its rule

“so long as it lies within the range of reasonable interpretation permitted by” the language

of the rule. Clark Fork Coal. v. Montana Dep’t of Envt’l Quality, 2008 MT 407, ¶ 20, 347

Mont. 197, 197 P.3d 482.

¶16 An agency decision is arbitrary and capricious if made without consideration of all

relevant factors or based on a clearly erroneous judgment. Clark Fork Coal., ¶ 21; North

Fork Preservation Ass’n, 238 Mont at 465, 778 P.2d at 871. However, the arbitrary and

capricious standard does not permit reversal “merely because the record contains

inconsistent evidence or evidence which might support a different result.” Montana

Wildlife Fed., ¶ 25. Rather, the decision “must appear to be random, unreasonable or

11
seemingly unmotivated based on the existing record.” Montana Wildlife Fed., ¶ 25. We

cannot substitute our judgment for that of the agency but will not defer to an agency

decision without a searching and careful review of the record to verify that the agency

made a reasoned decision. Friends of the Wild Swan v. Dep’t of Nat. Res. & Conservation,

2000 MT 209, ¶ 28, 301 Mont. 1, 6 P.3d 972; North Fork Preservation Ass’n, 238 Mont.

at 465, 778 P.2d at 871.

DISCUSSION

¶17 Mindful of the Legislature’s constitutional duty to maintain and provide for a clean

and healthful environment,5 and for the purpose of protecting our environment in balance

with the right to use and enjoy private property free from undue government regulation,

MEPA requires state agencies to conduct an environmental review of any

contemplated agency action that may have an impact on the human environment. Sections

75-1-102, -201(1), and -220(5), MCA. Within the required scope of review, MEPA

requires agencies “to take a hard look” at the environmental impacts of contemplated

agency action. Montana Wildlife Fed., ¶ 43. “Implicit in the requirement that an agency

take a hard look at the environmental consequences of its actions is the obligation to make

5
Montana Constitution, Article IX, Section 1, provides:
(1) The state and each person shall maintain and improve a clean and healthful
environment in Montana for present and future generations.

(2) The legislature shall provide for the administration and enforcement of this duty.

(3) The legislature shall provide adequate remedies for the protection of the
environmental life support system from degradation and provide adequate remedies
to prevent unreasonable depletion and degradation of natural resources.

See also, Mont. Const. art. II, § 3 (individual right to a clean and healthful environment).

12
an adequate compilation of relevant information, to analyze it reasonably, and to consider

all pertinent data.” Clark Fork Coal., ¶ 47.

¶18 However, MEPA requirements are merely “procedural” and do not require an

agency to reach any particular decision in the exercise of its independent authority.

Section 75-1-102(1), MCA; Montana Wildlife Fed., ¶ 32. See also, § 75-1-102(3)(b), MCA

(MEPA provides no additional regulatory authority to an agency and does not affect an

agency’s specific statutory duties to comply with environmental quality standards); § 75-1-

201(4)(a), MCA (reviewing “agency may not withhold, deny, or impose conditions on any

permit or other authority to act based on” MEPA). The essential purpose of MEPA is to

aid in the agency decision-making process otherwise provided by law by informing the

agency and the interested public of environmental impacts that will likely result from

agency actions or decisions. Sections 75-2-102(1)(b) and (3)(a), MCA. Because the

Legislature modeled MEPA on the National Environmental Policy Act (NEPA),6 federal

authority construing NEPA is generally persuasive guidance in the construction of similar

provisions of MEPA. North Fork Preservation Ass’n, 238 Mont. at 457, 778 P.2d at 866;

Ravalli County Fish & Game Ass’n v. Montana Dep’t of State Lands, 273 Mont. 371, 377,

903 P.2d 1362, 1367 (1995).

¶19 Issue 1: Does MEPA require DEQ to consider non-water quality related
environmental impacts of the construction and operation of a retail store facility as
secondary impacts of the issuance of a Montana Water Quality Act (MWQA) permit to
discharge facility wastewater into the ground from an onsite wastewater treatment
system?

6
42 U.S.C. § 4321, et seq.

13
¶20 MEPA requires an agency to produce a formal environmental impact statement

(EIS) if an agency action will significantly affect the quality of the human environment.

Section 75-1-201(1)(b)(iv), MCA; Montana Wildlife Fed., ¶ 43. However, MEPA does

not require an EIS if a preliminary EA determines that the agency action will not

significantly affect the quality of the human environment. Section 75-1-201(1)(b)(iv),

MCA; Admin. R. M. 17.4.607(2) and .608 (general environmental review requirements);

Kadillak v. Anaconda Co., 184 Mont. 127, 134, 602 P.2d 147, 152 (1979). An EA thus

serves as both the initial tool for determining whether a more intensive EIS is necessary

and as the mechanism for required environmental review of agency actions that will likely

impact the environment but not sufficiently to require an EIS. Sections 75-1-102(1) and

(3)(a), -201(1)(a) and (b)(i)(B), and -220(5), MCA (EIS/EA purposes, definitions,

legislative intent, and general requirements for “adequate review” of environmental impact

of “state actions”); Admin. R. M. 17.4.607(2) through (4) and 17.4.608, (environmental

review requirements and significant impact evaluation criteria). On appeal, Bitterrooters

do not contest DEQ’s determination that an EA would suffice as the mechanism for

required environmental review based on its threshold determination that issuance of the

contemplated wastewater discharge permit will not significantly affect the quality of the

human environment.7 Bitterrooters similarly do not challenge DEQ’s identification and

evaluation of alternatives to the issuance of a discharge permit as required by §§ 75-1-

7
It is undisputed on the record that the contemplated wastewater discharge will not exceed a 7.5
mg/L nitrate concentration thus effecting a “nonsignificant change” in groundwater quality that
will not cause degradation to surface water under § 75-5-301(5)(d), MCA (MWQA water quality
standards).

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201(1)(b)(i)(B) and -220(1), MCA. Therefore, we review Bitterrooters’ assertion of error

only as it relates to the sufficiency of the final EA as the mechanism of required MEPA

review.

¶21 Except for requiring evaluation of cumulative impacts of a proposed project “when

appropriate,” § 75-1-208(11), MCA, MEPA does not specify the required contents or scope

of a preliminary EA. See, e.g., §§ 75-1-102(1) and (3), -201(1)(b)(i)(B), and -220(5),

MCA. In this context, the Legislature has directed the Montana Board of Environmental

Review (BER) to promulgate rules specifying the general MEPA requirements for DEQ

actions. Sections 75-5-103(3) and -201, MCA (BER rulemaking authority under MWQA);

Admin. R. M. 17.4.102, .607(2) through (4), .608, and .609. An EA may be in a “standard

checklist” form for “routine action with limited environmental impact.” Admin. R. M.

17.4.609(2). For other actions, an EA must be in a narrative form “containing a more

detailed analysis of specified criteria.” Admin. R. M. 17.4.609(2) and (3). In either form,

an EA must include, inter alia, “an evaluation of the impacts, including cumulative and

secondary impacts,” on the “physical environment” and on the “human population in the

area to be affected by the proposed action.” Admin. R. M. 17.4.609(3)(d) and (e); see also,

§§ 75-1-102(1) and (3)(a), -201(1)(a), -208(11), and -220(5), MCA (in re cumulative

impacts). Impacts may be adverse, beneficial, or both. Admin. R. M. 17.4.608(2).

¶22 Relevant criteria for evaluation of secondary impacts of the proposed action on the

physical environment include, “where appropriate[,] terrestrial and aquatic life and

habitats; water quality, quantity, and distribution; geology; soil quality, stability, and

moisture; vegetation cover, quantity and quality; aesthetics; air quality; unique,

15
endangered, fragile, or limited environmental resources; historical and archaeological sites;

and demands on environmental resources of land, water, air and energy.” Admin. R. M.

17.4.609(3)(d) (emphasis added). The term “human environment” includes “biological,

physical, social, economic, cultural, and aesthetic factors that interrelate to form the

environment.” Admin. R. M. 17.4.603(12). Relevant criteria for evaluation of secondary

impacts of a proposed action on the affected human population include, “where

appropriate, social structures and mores; cultural uniqueness and diversity; access to and

quality of recreational and wilderness activities; local and state tax base and tax revenues;

agricultural or industrial production; human health; quantity and distribution of

employment; distribution and density of population and housing; demands for government

services; industrial and commercial activity; locally adopted environmental plans and

goals; and other appropriate social and economic circumstances.” Admin. R. M.

17.4.609(3)(e) (emphasis added). By operation of the qualifying language “where

appropriate,” the laundry lists of secondary impact evaluation criteria in Admin.

R. M. 17.4.609(3)(d) and (e), are not mandatory evaluation criteria in every case. Rather,

the relevance or propriety of particular criterion, if any, depends on the nature of the

proposed state action in each particular case.

¶23 Though it mandates “adequate review” of potential environmental impacts of state

actions, MEPA does not specifically define what constitutes a triggering state action. See,

e.g., §§ 75-1-102(1), -201(1)(b)(iv), -220(5), MCA. See also, § 75-1-220(8), MCA

(defining “state-sponsored project” and distinguishing state-sponsored projects from

projects or activities involving the issuance of a state permit). In the current absence of a

16
statutory definition, administrative rule defines state “action” to include an “activity

involving the issuance of a . . . permit . . . for use or permission to act by the agency.”

Admin. R. M. 17.4.603(1); see also, § 75-1-102(3)(a), MCA (MEPA applies to state

agency “decisions”). In this case, the state action triggering MEPA review was the

proposed issuance of a DEQ MGWPCS groundwater discharge permit pursuant to Title

75, chapter 5, part 4, MCA, and Admin. R. M. Title 17, chapter 30, part 10.

¶24 For purposes of MEPA, “secondary impact” means “a further impact to the human

environment that may be stimulated or induced by or otherwise result from a direct impact

of the action.” Admin. R. M. 17.4.603(18). MEPA statutes and rules do not define the

term “direct impact.” By comparison, NEPA does not define a “direct impact” but defines

“direct effects” as effects or impacts “caused by the action . . . at the same time and place.”

40 C.F.R. § 1508.8(a) (emphasis added). In concluding that Admin. R. M. 17.4.609(3)(d)

and (e) required DEQ to consider impacts of the construction and operation of the facility

beyond those merely related to water quality or the construction of the required wastewater

system, the District Court essentially concluded that those other impacts were secondary

impacts of the issuance of the permit itself rather than of the permitted activity. In other

words, the construction and operation of the retail store would not occur “but for” the

issuance of the wastewater permit. Thus, the District Court expansively shifted the focus

of MEPA on impacts caused by the permitted action to the much broader and more

attenuated action and resulting impacts that would not occur “but for” the issuance of the

permit.

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¶25 The District Court’s expansive tail-wagging-the-dog reasoning is backwards as a

matter of fact and erroneous as a matter of law. Logically, the permitted wastewater

discharge from the facility, and the related construction of its component wastewater

treatment system, are not the causes-in-fact of the larger construction and operation of the

retail store. Rather, the construction and operation of the retail store are the causes-in-fact

of the wastewater discharge and related treatment system. MEPA, like NEPA, requires “a

reasonably close causal relationship” between the subject government action and the

particular environmental effect. Department of Transportation v. Public Citizen, 541 U.S.

752, 767, 124 S. Ct. 2204, 2215 (2004); Metropolitan Edison Co. v. People Against

Nuclear Energy, 460 U.S. 766, 773, 103 S. Ct. 1556, 1561 (1983) (NEPA requires a

“reasonably close causal relationship between a change in the physical environment and

the effect at issue”); see also, Admin. R. M. 17.4.603(1) (defining state “action” in terms

of the permitted activity); 40 C.F.R. § 1508.8(a) (defining “direct effect” as an impact

“caused by the action”).

¶26 In Public Citizen, various unions and environmental groups asserted that a

sub-agency of the U.S. Department of Transportation (USDOT) responsible for regulating

motor carrier safety violated NEPA by failing to consider potential environmental impacts

of increased Mexican commercial truck traffic in the U.S. when it adopted safety

regulations applicable to Mexican trucks independently authorized to operate in the U.S.

by the controversial North American Free Trade Agreement (NAFTA). Public Citizen,

541 U.S. at 758-62, 124 S. Ct. at 2210-12. The sub-agency’s EA narrowly focused on

environmental impacts of the increase in roadside safety inspections that would result from

18
its more stringent vehicle safety regulations. Public Citizen, 541 U.S. at 761, 124 S. Ct. at

2212. The EA concluded that NEPA did not require the sub-agency to consider the broader

environmental impacts of increased Mexican truck traffic in the U.S. because NAFTA, and

related presidential action, was the cause of the traffic increase, not the sub-agency’s safety

regulations. Public Citizen, 541 U.S. at 761, 124 S. Ct. at 2212. On review, the U.S. Ninth

Circuit Court of Appeals agreed with the environmental groups and unions that the

sub-agency EA violated NEPA because, even though NAFTA was the cause of the traffic

increase, Mexican trucks could not operate here unless they complied with the

sub-agency’s safety regulations. Public Citizen, 541 U.S. at 761, 124 S. Ct. at 2212.

¶27 On appeal, the United States Supreme Court characterized the Ninth Circuit’s

expansive construction of NEPA as “a particularly unyielding variation of ‘but for’

causation, where an agency’s action is considered a cause of an environmental effect even

when the agency has no authority to prevent the effect.” Public Citizen, 541 U.S. at 767,

124 S. Ct. at 2215. The Supreme Court held that the Ninth Circuit’s expansive “but for”

standard of causation was “insufficient to make an agency responsible for a particular

effect” because “NEPA requires ‘a reasonably close causal relationship’ between the

environmental effect and the alleged cause.” Public Citizen, 541 U.S. at 767, 124 S. Ct. at

2215 (quoting Metropolitan Edison Co., 460 U.S. at 773-74, 103 S. Ct. at 1561). By

analogy to the “familiar doctrine of proximate cause from tort law,” the Court characterized

NEPA’s more demanding causation standard as drawing a “manageable line between those

causal changes that may make an actor responsible for an effect and those that do not.”

Public Citizen, 541 U.S. at 767, 124 S. Ct. at 2215. The Supreme Court thus analyzed the

19
requisite causal connection triggering NEPA review as a function of NEPA’s essential

purposes to ensure that (1) agencies adequately consider environmental impacts of their

actions and (2) the interested public can monitor agency proceedings and “play a role” in

the agency decision-making process and the implementation of the decisions. Public

Citizen, 541 U.S. at 768, 124 S. Ct. at 2216. The Court emphasized NEPA’s essential

informational purpose to allow the interested public to “provide input as necessary to the

agency making the relevant decisions.” Public Citizen, 541 U.S. at 768, 124 S. Ct. at 2216

(emphasis added).

¶28 Noting that the USDOT motor carrier safety sub-agency had no authority to regulate

the increase in Mexican truck traffic caused by NAFTA, the Supreme Court concluded that

requiring the sub-agency to consider impacts it could not prevent would not serve NEPA’s

essential purposes. Public Citizen, 541 U.S. at 768-69, 124 S. Ct. at 2216. Thus, the Court

held that an “agency cannot be considered a legally relevant ‘cause’” of an effect when the

agency cannot prevent the effect in the lawful exercise of its limited authority. Public

Citizen, 541 U.S. at 770, 124 S. Ct. at 2217. See also, Winnebago Tribe of Neb. v. Ray,

621 F.2d 269, 273 (8th Cir. 1980) (Corps of Engineers’ NEPA review authority limited to

review of matters within its regulatory jurisdiction notwithstanding that larger power line

project was necessarily contingent on water-crossing permit); Save the Bay, Inc. v. U.S.

Army Corps of Engineers, 610 F.2d 322, 327 (5th Cir. 1980) (Corps of Engineers’ NEPA

review authority limited to review of matters within its regulatory jurisdiction

notwithstanding that larger pipeline project was necessarily contingent on water-crossing

permit); Residents for Sane Trash Solutions v. U.S. Army Corps of Engineers, 31 F. Supp.

20
3d 571, 588-90 (S.D. N.Y. 2014) (Corps of Engineers’ NEPA review authority limited to

review of matters within its regulatory jurisdiction notwithstanding that larger garbage

plant project was contingent on harbor dredging permit).

¶29 We reached a similar result under MEPA in Montana Wilderness Ass’n v. Montana

Bd. of Health & Env’tl Sciences, 171 Mont. 477, 559 P.2d 1157 (1976). In that case,

wilderness and environmental protection groups challenged the sufficiency of an EIS

issued by DEQ’s predecessor agency, the Department of Health and Environmental

Services (DHES), incident to issuance of a certificate of approval of a proposed 95-acre

subdivision in the Big Sky resort area for compliance with applicable water supply, sewage,

and solid waste disposal regulations. Montana Wilderness Ass’n, 171 Mont. at 478-82,

559 P.2d at 1158-59. The plaintiffs asserted that DHES violated MEPA by failing to

consider the potential environmental impacts of the proposed subdivision beyond the

impacts of the water supply, sewage, and solid waste disposal issues within the scope of

DHES’ regulatory authority. Montana Wilderness Ass’n, 171 Mont. at 480-82, 559 P.2d

at 1159. Reasoning that the proposed subdivision could not proceed without the requested

water supply, sewage, and solid waste disposal regulation compliance certificate, the

District Court concluded that MEPA required DHES to consider all potential

environmental impacts of the subdivision regardless of the limited scope of its regulatory

authority. Montana Wilderness Ass’n, 171 Mont. at 482-83, 559 P.2d at 1160. We

reversed, holding that the District Court’s reasoning erroneously extended DHES “control

over subdivisions beyond” the scope of its limited authority to enforce applicable water

supply, sewage, and solid waste disposal regulations. Montana Wilderness Ass’n, 171

21
Mont. at 484-85, 559 P.2d at 1161. In so holding, we noted that the Legislature placed

general regulatory control over subdivisions in the hands of local governments rather than

agencies of the State. Montana Wilderness Ass’n, 171 Mont. at 485-86, 559 P.2d at 1161

(citing 1973 Montana Subdivision and Platting Act); see also, §§ 75-1-102(1)

and -201(1)(b), MCA (MEPA applicable to state agencies only).

¶30 In this case, the District Court concluded that “Montana Wilderness is no longer

binding authority” on the asserted grounds that it is contrary to MEPA’s statutory command

that agencies comply with the environmental review requirements “to the fullest extent

possible” and similarly “at odds with subsequent NEPA case law requiring agencies to

consider reasonably foreseeable indirect effects of an action, even when local or state

entities are authorized to make the ultimate decision.” However, as pertinent, MEPA

remains substantially unchanged and this Court has not overruled or limited Montana

Wilderness in the 40 years since we issued it. More significantly, while MEPA and NEPA

do indeed command agencies to comply with applicable environmental review

requirements “to the fullest extent possible,” we cannot properly construe MEPA in

isolation. MEPA and NEPA must be construed in harmony with the substantive

limitations of an agency’s applicable regulatory authority. Public Citizen, 541 U.S. at 769,

124 S. Ct. at 2217; Montana Wilderness Ass’n, 171 Mont. at 484-85, 559 P.2d at 1161;

§§ 75-1-102(3)(b) and -104(1), MCA (MEPA provides no additional regulatory authority

to an agency and does not affect an agency’s specific statutory duties to comply with

environmental quality standards). See also, §§ 75-1-102(1) and -201(4)(a), MCA

(reviewing “agency may not withhold, deny, or impose conditions on any permit or other

22
authority to act based on” MEPA); Flint Ridge Development Co. v. Scenic Rivers Ass’n,

426 U.S. 776, 787, 96 S. Ct. 2430, 2438 (1976) (quoting NEPA legislative history

indicating Congressional intent that federal agencies comply with NEPA requirements “‘to

the fullest extent possible’ under their statutory authorizations”); Calvert Cliffs Coord.

Comm. v. U.S. Atomic Energy Comm., 449 F.2d 1109, 1115 (D.C. Cir. 1971) (noting NEPA

§ 102 intent to require agency compliance with NEPA requirements to fullest extent

possible within scope of independent agency authority).

¶31 In support of its ruling, the District Court cited Chelsea Neighborhood Ass’n v. U.S.

Postal Service, 516 F.2d 378 (2nd Cir. 1975) (requiring U.S. Postal Service to consider

impacts of contemplated third-party construction of multi-story housing project on top of

a contemplated ground floor postal vehicle maintenance facility as a secondary impact of

construction of the postal facility); City of Davis v. Coleman, 521 F.2d 661, 679-82 (9th

Cir. 1975) (requiring USDOT to consider environmental, economic, and social effects of

future urban development as indirect impacts of contemplated construction of a new

interstate freeway interchange); and Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985)

(requiring Federal Highway Administration and Corps of Engineers to consider

environment impacts of contemplated heavy industrial development as indirect impacts of

issuance of federal funding and permits for construction of a cargo ship port and causeway

on an undeveloped island adjacent to an industrialized seaport). With some variations and

distinctions, the cases cited by the District Court are arguably consistent with Bitterrooters’

expansive “but for” theory of MEPA causation insofar as they focused on potential impacts

of contemplated future development that would result beyond the agency authority over

23
the action that triggered NEPA review in the first place. However, the federal Circuit

Courts decided those cases long before the U.S. Supreme Court clarified the appropriate

standard of NEPA causation in Public Citizen. Thus, in light of Public Citizen, prior

inconsistent lower court decisions in Chelsea, Davis, and Sierra Club are distinguishable

and insufficiently persuasive to overrule or limit Montana Wilderness.

¶32 In apparent recognition of this problem, Bitterrooters cite Save Our Sonoran, Inc.

(SOS) v. Flowers, 408 F.3d 1113 (9th Cir. 2005) (requiring Corps of Engineers to consider

impacts of private construction of gated community in Arizona desert as secondary impacts

of issuance of permit to dredge and fill dry streambeds that collected and carried occasional

heavy rain runoff) as additional support for the District Court’s ruling. However, SOS is

factually distinguishable because: (1) the Corps had authority to regulate the filling of dry

streambeds in the Arizona desert; (2) dry capillaries to the streambeds inextricably

permeated the entirety of the subdivision site; and (3) extensive filling of the entirety of

the system on the subdivision site would impact plants and animals dependent on water

collected by the system. SOS, 408 F.3d at 1118-23. Despite loose dictum that NEPA

required the Corps to consider environmental impacts “with no impact on [its]

jurisdictional waters,” the Ninth Circuit actually recognized Public Citizen’s more

stringent NEPA causation standard and merely held that the requisite “causal nexus”

existed on the unique facts of the case between the Corps’ independent regulatory authority

and the subject environmental impacts. SOS, 408 F.3d at 1121-23. Consequently, SOS is

24
not persuasive authority upon which to distinguish Public Citizen or overrule or limit

Montana Wilderness.8

¶33 We hold that MEPA, like NEPA, requires a reasonably close causal relationship

between the triggering state action and the subject environmental effect. We reject the

unyielding “but for” causation standard asserted by Bitterrooters to the effect that a state

action is a cause of an environmental impact regardless of whether the agency, in the lawful

exercise of its independent authority, can avoid or mitigate the effect. We hold that, for

purposes of MEPA, an agency action is a legal cause of an environmental effect only if the

agency can prevent the effect through the lawful exercise of its independent authority. As

in Public Citizen, requiring a state agency to consider environmental impacts it has no

authority to lawfully prevent would not serve MEPA’s purposes of ensuring that

agencies and the interested public have sufficient information regarding

relevant environmental impacts to inform the lawful exercise of agency authority. Sections

75-1-102(3), -104(1), -201(4)(a), MCA. Section 75-1-201(1), MCA, merely requires state

8
Eliminating any doubt as to its adherence to Public Citizen, the Ninth Circuit more recently
observed:

Even when a major federal action occurs, however, NEPA remains subject to a
“rule of reason” that frees agencies from preparing a full EIS on “the environmental
impact of an action it could not refuse to perform.” Pub. Citizen, 541 U.S. at 769,
124 S. Ct. 2204. Thus, “where an agency has no ability to prevent a certain effect
due to its limited statutory authority over the relevant actions,” the agency “[does]
not need to consider the environmental effects arising from” those actions. Id. at
770, 124 S. Ct. 2204.

Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1225-26 (9th Cir. 2015) (holding that
federal agency approval of oil and gas lease for off-shore drilling on Alaska’s Arctic coastline
did not trigger NEPA consideration of sufficiency of oil company’s oil spill response plan where
company otherwise satisfied legal criteria for lease approval within scope of agency authority).

25
agencies to comply with applicable MEPA requirements “to the fullest extent

possible” within the scope of the lawful exercise of their independent authority. Accord,

§§ 75-1-102(3), -104(1), -201(4)(a), MCA.

¶34 Contrary to the assertions of the dissent in Montana Wilderness and Bitterrooters

here, our holdings in these cases do not gut MEPA. In accordance with its express

language, MEPA still requires state agencies to adequately consider, “to the fullest extent

possible” within the scope of their independent authority, all direct and secondary

environmental impacts that will likely result from the specific activity conducted or

permitted by the agency. The problem for Bitterrooters is that the broader environmental

impacts of the larger construction and operation of the retail store are not subject to MEPA

review because the Legislature has not placed general land use control in the hands of a

state agency. As recognized in Montana Wilderness over 40 years ago, the Legislature has,

with limited exceptions, placed general land use control beyond the reach of MEPA in the

hands of local governments. See, Title 76, chapters 1-3, MCA (Subdivision and Platting

Act and local zoning enabling Acts). Regardless of MEPA’s manifest beneficial purpose

and Bitterrooters’ otherwise compelling public policy arguments, we simply cannot

properly stretch MEPA beyond the limits of its language and stated purpose to fill an

environmental review gap created by the Legislature and remaining within its domain to

remedy if so inclined.

¶35 In this case, the District Court did not conclude that DEQ failed to adequately

consider the secondary environmental impacts, as defined by Admin. R. M. 17.4.609(3)(d)

and (e), of the permitted wastewater discharge or related construction of the required

26
wastewater treatment system. Rather, the District Court concluded that DEQ violated

Admin. R. M. 17.4.609(3)(d) and (e) by failing to consider other non-water quality related

impacts of the larger construction and operation of the facility as secondary impacts of

issuance of the contemplated MWQA wastewater discharge permit. Bitterrooters

acknowledge that, had DEQ expanded the scope of its EA beyond its water quality

regulatory authority to consider those impacts as demanded, it would have had no authority

to deny or limit the requested MWQA wastewater discharge permit to prevent or mitigate

those impacts. See, §§ 75-1-102(3)(b), -104(1), and -201(4)(a), MCA. Thus, issuance of

the requested MWQA wastewater permit was not a legal cause of environmental impacts

of the larger construction and operation of the retail facility unrelated to water quality or

the construction of the required wastewater treatment system. We hold that the District

Court erroneously concluded that DEQ violated MEPA, in contravention of Admin.

R. M. 17.4.609(3)(d) and (e), by failing to further consider the environmental impacts of

the construction and operation of the facility other than water quality impacts and impacts

of the related construction of the required wastewater treatment system.

¶36 Issue 2: Does MEPA require DEQ to identify the actual owner or operator of a
wastewater treatment facility prior to issuing a MWQA groundwater discharge permit?

¶37 Incident to its MEPA secondary impacts ruling, the District Court further ruled:

When it reconsiders Foss’ application, . . . DEQ must identify the facility
operator if the operator’s identity has the potential to impact vegetation,
aesthetics, human health and safety, industrial and commercial activities,
employment, tax revenues, demand for government services, or other
environmental resources.

27
In context, and by comparison of similar language, we infer the unattributed source of the

referenced criteria to be Admin. R. M. 17.4.603(12) and .609(3)(d) and (e) (cumulative and

secondary impact evaluation criteria). Thus, the District Court essentially ruled that MEPA

requires DEQ to identify the contemplated facility operator if the facility operator, in

conjunction with the nature of the operation, is predisposed to operate the facility in a

manner that has the potential to impact any of the evaluation criteria referenced in Admin.

R. M. 17.4.609(3)(d) and (e).

¶38 Landowners assert that the District Court improperly crafted an unnecessary and

unworkable test from whole cloth. They further assert that District Court’s test is no test

at all because it will always require DEQ to speculatively assess potential environmental

impacts of a subject activity based on the identity, reputation, and past practices of the

contemplated facility owner and operator. Landowners finally assert that the test is

unnecessary in any event because all interested parties now know the identity of the

contemplated owner and operator of the subject facility, i.e., Walmart, and that

Admin. R. M. 17.30.1360 will ultimately require identification, and afford DEQ an

opportunity for subsequent review of permit conditions, upon the eventual transfer of the

permit to the actual contemplated owner or operator.

¶39 Bitterrooters contrarily assert that the identity of the contemplated owner and

operator of a permitted facility is information directly relevant to consideration of the

potential environmental impacts of the construction and operation of the facility as a whole.

Without citation to any statutory or administrative provision of MEPA or MWQA,

Bitterrooters assert that “secretive planning serves no legitimate public policy purpose”

28
and “leaving the identity of the true applicant a secret violates the letter and spirit of

MEPA.” DEQ is strangely silent on the issue.

¶40 At the crux of the matter, contrary to Landowners’ assertion, the transfer of an

agency permit to a new owner or operator generally will “not trigger [MEPA] review.”

Section 75-1-201(1)(d), MCA (permit transfer triggers MEPA only upon “a material

change in terms or conditions” of the permit or as otherwise provided by law). Page 13,

Section M, of the subject DEQ-Foss MGWPCS permit expressly provides that “[t]his

permit may be automatically transferred” to a new permitee on thirty-day notice to DEQ,

payment of applicable fees, and submittal of a written transfer agreement between Foss

and the transferee “containing a specific date for transfer of permit responsibility, coverage,

and liability between them.” Thus, Landowners’ assertion that subsequent identification

of the actual owner or operator on transfer of the permit will remedy any legitimate

environmental concern is somewhat disingenuous given that the contemplated transfer will

not likely trigger MEPA review. By the same token, despite the facial appeal of

Bitterrooters’ concern that non-disclosure of the identity of the contemplated owner or

operator of a facility could potentially result in inadequate review of an agency action

otherwise subject to MEPA, the concern is unsubstantiated on the factual record in this

case. More significantly, Bitterrooters’ assertion, and the District Court’s resulting ruling,

is unsupported by any legal authority other than the general principle that MEPA requires

an agency to adequately compile and assess all environmental data relevant to a particular

agency action. See, Clark Fork Coal., ¶ 47; Ravalli County Fish & Game Ass’n, 273 Mont.

at 381, 903 P.2d at 1369. Rather than follow the parties down the garden path into the

29
public policy realm of the Legislature while DEQ stands quietly by, we more

fundamentally and appropriately look to the largely overlooked governing requirements

for MWQA permits.

¶41 With its limited focus on identification and assessment of relevant environmental

impacts of proposed state agency actions, MEPA does not govern what information an

application must contain for issuance of an agency permit subject to MEPA review. For

the sole purpose of determining the deadlines for agency completion of required

environmental review under § 75-1-208(4)(a), MCA, and Admin. R. M. 17.4.620, MEPA

defines a “complete application” as:

an application for a permit, license, or other authorization that contains all
data, studies, plans, information, forms, fees, and signatures required to be
included with the application sufficient for the agency to approve the
application under the applicable statutes and rules.

Section 75-1-220(3), MCA (emphasis added). As contemplated by the highlighted

language of § 75-1-220(3), MCA, MWQA governs what information an application must

contain for issuance of an MGWPCS discharge permit. Sections 75-5-401 and -402, MCA

(DEQ duty under MWQA to regulate wastewater discharge pursuant to BER rules);

Admin. R. M. Title 17, chapter 30, parts 1 and 10 (BER groundwater discharge rules).

¶42 As pertinent, MWQA rules expressly provide that the “owner or operator of any

proposed source . . . which may discharge pollutants into state ground waters shall file a

completed MGWPCS permit application” at least 180 days prior to the proposed operation.

Admin. R. M. 17.30.1023(3) (emphasis added). All MGWPCS permit applications “must

be submitted on [DEQ] forms . . . and must contain” certain enumerated information “as

30
deemed necessary by” DEQ. Admin. R. M. 17.30.1023(4). Pursuant to its “one common

system for issuing permits for point sources9 discharging pollutants into state waters,” DEQ

requires MGWPCS permit applicants to submit applications on DEQ standard Forms 1 and

G-W. Admin. R. M. 17.30.1023(4), and (6), .1301(1). See also, DEQ Form GW-1 (“this

form must be accompanied by DEQ Form 1”) and Admin. R. M. 17.30.1304(5) and

.1322(1)(a) and (b) (“all applicants shall submit applications” on DEQ standard Form 1

available at http://perma.cc/MD4G-2XPW). For purposes of the applicable MWQA

regulations and DEQ Form 1, the term “‘owner or operator’ means any person who

owns . . ., operates, controls, or supervises a point source.” Admin. R. M. 17.30.1304(48).

MGWPCS rules specifically command that:

No application will be processed by [DEQ] until all of the requested
information is supplied and the application is complete. [DEQ] shall make a
determination of the completeness of the information with 30 calendar days
of receipt of an application.

Admin. R. M. 17.30.1024(1) (emphasis added).

¶43 Here, the subject wastewater permit application identified real estate broker Lee

Foss as the applicant and contemplated operator of the proposed retail facility and required

wastewater treatment system. However, it is undisputed on the record that Foss was never

going to be the actual owner or operator of the facility. He requested the MGWPCS permit

to facilitate the sale of the property to a particular third-party known to Foss and

9
“‘Point source’ means a discernible, confined, and discrete conveyance, including but not limited
to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel
or other floating craft, from which pollutants are or may be discharged.” Section 75-5-103(29),
MCA; Admin. R. M. 17.30.1304(51).

31
Landowners who would then construct and operate the facility. Upon sale of the property,

Foss would transfer the permit to the intended owner and operator. Thus, Foss was not the

owner or operator, or even the contemplated owner or operator, of the subject facility as

referenced in Admin. R. M. 17.30.1023(3) and DEQ Form 1.

¶44 DEQ’s April 29, 2014 notice of application deficiencies and its Director’s

subsequent inquiry of Foss, clearly manifest that DEQ was aware of the standard

requirement that a MGWPCS application identify the actual owner or operator of the

subject facility responsible for the contemplated wastewater discharge. DEQ must “issue,

suspend, revoke, modify, or deny permits to discharge sewage . . . into state waters . . .

consistently with [BER] rules.” Section 75-5-402(1), MCA (emphasis added). Why or on

what basis DEQ acquiesced to Foss’ refusal to identify the actual contemplated owner or

operator of the facility is unclear from the record on appeal. Regardless, we hold that, as

implemented by DEQ Form 1 (Ver. 1.2 – Rev. 5/12), Admin. R. M. 17.30.1023(3) and

.1024(1), requires DEQ to identify the actual owner or operator of the contemplated facility

for which an applicant seeks the subject wastewater discharge permit.10 We will affirm a

district court ruling that reaches the right result even if for the wrong reason. Earth

Resources Ltd. Partnership v. North Blaine Estates, Inc., 1998 MT 254, ¶ 29, 291 Mont.

216, 967 P.2d 376. For the foregoing reasons, we affirm the District Court’s summary

10
Except as otherwise warranted upon balancing of Montana Constitution, Article II, Sections 9
and 10 (public’s right to know and right to individual privacy), this information “is a matter of
public record and open to public use.” Section 75-5-105, MCA.

32
judgment that DEQ must identify and disclose the actual contemplated owner or operator

of the facility for which the applicant seeks the subject wastewater discharge permit.

CONCLUSION

¶45 We hereby reverse the District Court’s summary judgment that DEQ violated

MEPA, in contravention of Admin. R. M. 17.4.609(3)(d) and (e), by failing to further

consider environmental impacts of the construction and operation of the facility other than

water quality impacts and impacts of the related construction of the required wastewater

treatment system. We further hereby affirm the District Court’s summary judgment that

DEQ must identify and disclose the actual contemplated owner or operator of the subject

retail store facility.

/S/ DIRK M. SANDEFUR

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE

33