Ravalli County Fish and Game Ass'n, Inc. v. Montana Dept. of State Lands

No. 94-564
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

RAVALLI COUNTY FISH AND GAME ASSOCIATION,
INC., MONTANA WILDLIFE FEDERATION, INC.
SKYLINE SPORTSMEN CLUB, INC., and
ANACONDA SPORTSMEN CLUB, INC.
Plaintiffs and Appellants,
v.
MONTANA DEPARTMENT OF STATE LANDS,
MONTANA BOARD OF LAND COMMISSIONERS
and GEORGE MADDEN,
Defendants and Respondents.

APPEAL FROM: District Court of the Twenty-first Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Jack R. Tuholske, Esq., Missoula, Montana
For Respondents:
Patrick G. Frank, Esq., W. Carl Mendenhall, Esq.;
Worden, Thane & Haines, Missoula, Montana
Tommy H. Butler, Esq., Special Ass't Attorney
General, Helena, Montana
For Amicus Curiae:
Thomas France, Esq., Debbie Musiker, Esq., Missoula
Montana (for National Wildlife Federation)
John E. Bloomquist, Esq.; Doney, Crowley & Shontz
Helena, Montana (for Montana Stockgrowers Assoc.,
Montana Woolgrowers Assoc. and Bitterroot
Stockgrowers)
Alan L, Joscelyn, Esq., Helena, Montana (for Seeley
Lake Elem. School Dist. and Brady Combined School
Dist.)

Submitted on Briefs: May 26
"Decided: Septembe:';Z, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

The Ravalli County Fish And Game Association, Inc., Montana
Wildlife Federation, Inc., Skyline Sportsmen Club, Inc., and
Anaconda Sportsmen Club, Inc. (collectively, the Sportsmen) appeal
from a Twenty-First Judicial District Court, Ravalli County, order
granting the Montana Department Of State Lands' (DSL) , Montana
Board Of Land Commissioners', and George Madden's (Respondents)
motion for summary judgment in a Montana Environmental Policy Act
(MEPA) action. We reverse.
FACTUAL BACKGROUND
Bighorn sheep (bighorn) are native to much of Montana but,
with the settlement of the west, they were eliminated from most of
their former ranges. In response to their diminished numbers,
efforts have been made to reintroduce the bighorn to some of their
former ranges. One such area is the Sula State Forest (Sula) and
adjacent lands near the East Fork of the Bitterroot River. The
presence of the bighorn adds ecological, aesthetic and economic
values to the areas and communities adjacent to bighorn ranges.
Along with its suitability as bighorn habitat, the Sula has a long
history of livestock grazing. At issue is an alleged conflict
between the grazing of domestic sheep and the health and survival
of the bighorn on the adjacent range.
Until the beginning of 1991, Ralph Shoberg maintained grazing
permits with the DSL on trust lands within the Sula. Shoberg
grazed cattle on his permit areas. In January 1991, Shoberg
transferred his permits to George R. Madden (Madden). Madden

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subsequently changed from grazing cattle to grazing domestic sheep.
A public controversy arose regarding Madden's grazing of domestic
sheep upon trust lands because of the potential adverse affects on
the bighorn. Evidence in the record suggests that mixing domestic
sheep and bighorn can decimate the bighorn population through the
spread of pneumonia and/or other diseases to the bighorn. On
October 31, 1991, under the threat of a lawsuit, the DSL agreed to
prepare an environmental review of the permits pursuant to MEPA.
Prior to 1991, the DSL had not prepared an environmental assessment
(EA) or environmental impact statement (EIS) on Madden's cattle
grazing permits.
The DSL issued an EA on July 17, 1992 which included six
alternatives. Appellants, private parties and state entities,
submitted comments to the DSL about the EA. On September 30, 1992,
the DSL issued a revised EA. On December 30, 1992, DSL
commissioner Dennis Casey issued a decision notice which ended the
EA process and allowed Madden's grazing leases to remain in effect
until 1999, the leases' existing renewal date. With the intent to
reduce the threat of transferring disease from the domestic sheep
to the bighorn, the decision notice required certain measures, such
as sheep dogs and grazing dates. Because Casey approved the
revised EA, MEPA requirements were satisfied and no EIS was
required.
On May 12, 1993, the Sportsmen filed the instant action in the
District Court. On August 20, 1993, Respondents moved to dismiss
the Sportsmen's claims pursuant to Rule 12(b) (6), M.R.Civ.P., for

3
failure to state a claim upon which relief could be granted. On
November 23, 1993, the District Court stated that it intended to
treat this motion as a Rule 56, M.R.Civ.P., motion for summary
judgment. On August 10, 1994, the District Court granted
Respondents' motion for summary judgment on all counts. This
appeal followed.
The Sportsmen present three issues for review:
1. Did the District Court err in holding that the DSL complied
with MEPA?
2. Does the DSL have a fiduciary duty towards Montana's wildlife
which, under the facts of the instant case, requires the protection
of the bighorn by implementing license conditions to protect the
bighorn?
3. Did the District Court improperly refuse to consider
affidavits, exhibits, and depositions submitted by the Sportsmen in
support of their claims that the DSL unlawfully and arbitrarily
violated MEPA and its trust duties toward wildlife?
STANDARD OF REVIEW
We review summary judgment orders de nova. Spain-Morrow Ranch
Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32.
Summary judgment is proper only when no genuine issue of
material fact exists and the moving party is entitled to
a judgment as a matter of law. Rule 56(c), M.R.Civ.P.
The initial burden is on the moving party to establish
that there is no genuine issue of material fact; and once
met, the burden shifts to the party opposing the motion
to establish otherwise.
Spain-Morrow Ranch, 872 P.2d at 331-32 (citations omitted).

We review MEPA decisions to determine "whether the record
establishes that the agency acted arbitrarily, capriciously, or
unlawfully." North Fork Preservation Assoc. v. Dept. of State
Lands (1989), 238 Mont. 451, 458-59, 770 P.2d 862, 867. In North
Fork we divided our review into two parts: Whether the agency
4
acted unlawfully, and whether the agency acted arbitrarily or

capriciously. North Fork, 778 P.2d at 867.

To evaluate the lawfulness of the DSL's actions, we look to

the laws and regulations governing the DSL's MEPA review process.

North Fork, 770 P.2d at 067. We therefore review §§ 75-l-101 et

seq., MCA, and §§ 26.2.641 et seq., ARM. Because MEPA is modeled

after the National Environmental Policy Act (NEPA), when
interpreting MEPA, we find federal case law persuasive. Kadillak
v. Anaconda Co. (1979), 184 Mont. 127, 137, 602 P.2d 147, 153.

DISCUSSION

NEPA requires that an agency take a "hard look" at the

environmental impacts of a given project or proposal. See Kleppe

v. Sierra Club (1976), 427 U.S. 390, 410, n.21, 96 S.Ct. 2718,

2730, 49 L.Ed.2d 576, 590. NEPA is essentially procedural; it does

not demand that an agency make particular substantive decisions.

Stryker's Bay Neighborhood Council v. Karlen (19801, 444 U.S. 223,

227-28, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 433, 437. MEPA requires

that an agency take procedural steps to review "projects, programs,

legislation, and other major actions of state government

significantly affecting the quality of the human environment" in

order to make informed decisions. Section 75-l-201(1) (b) (iii),

MCA; See § 26.2.643, ARM.

Both parties ask us to determine whether an environmental

review document is necessary for the renewal or assignment of a

grazing lease. Pursuant to § 77-6-205(l), MCA, a grazing lease

holder:

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 who has paid all rentals due the state or who has
voluntarily terminated a lease under 77-6-116 is entitled
to have the lease renewed for a period not to exceed the
maximum lease period provided in 77-6-109 at any time
within 30 days prior to its expiration or within 30 days
following voluntary termination if no other applications
for lease of the land have been received 30 days prior to
the expiration of the lease or within 30 days following
voluntary termination. The renewal must be at the full
market rental rate established by the board[, taking into
account recommendations of the state land board advisory
council,] for the renewal period and subject to any other
conditions at the time of the renewal imposed by law as
terms of the lease.
Section 77-6-208, MCA, provides for assignment of leases to state
lands. The DSL rules regarding the general requirements of the
environmental review process state that:
(5) The agency is not required to prepare an EA or an
EIS for the following categories of action:
i,j . ministerial actions:
: actions in which the agency
exercises no discretion, but rather acts upon a given
state of facts in a prescribed manner . . . .
Section 26.2.643(S), ARM. The Sportsmen correctly argue that the
renewal and assignment of a lease, permit, license, etc., pursuant
to § 26.2.642(l), ARM, involves state action. Generally, state
action significantly affecting the quality of the human environment
requires MEPA analysis. See § 75-l-201(1) (b) (iii), MCA. However,
where a license renewal or assignment merely maintains the status
quo we conclude that the renewal or assignment of a grazing lease
pursuant to § 77-6-205(l), MCA, is a ministerial action that
requires no environmental analysis. See NRDC v. Berklund (D.C.
Cir. 19791, 609 F.2d 553, 558. Absent a change in use or condition
which significantly affects the quality of the human environment,
the renewal or assignment of a grazing lease or permit is generally

6
a ministerial act and does not trigger MEPA analysis.

However, if a changed use or condition under a state lease or

permit significantly affects the quality of the human environment,

then the state's allowing that change in use or change in condition

is a major state action pursuant to MEPA, triggering the MEPA

review process. The United States Supreme Court has observed that

t'major federal actions" include the "expansion or revision of

ongoing programs." Andrus v. Sierra Club (1979), 442 U.S. 347, 363

n.21, 99 S.Ct. 2335, 2344, 60 L.Ed.2d 943, 955; citing S. Rep. No.

91-296, p.20 (1969). "[11f an ongoing project undergoes changes

which themselves amount to 'major Federal actions,' the operating
agency must prepare an EIS." Upper Snake River Chapter of Trout

Unlimited v. Hodel (9th Cir. 19901, 921 F.2d 232, 234.

The DSL correctly argues that if an agency does not have an

affirmative statutory duty to act, the failure to act does not

trigger NEPA. Defenders of Wildlife v. Andrus (D.C. Cir. 1980),

627 F.2d 1238, 1248-50. Kowever , if an agency's duty to avoid

environmental harm is mandatory, then the agency's inaction

constitutes an action for NEPA purposes. See Sierra Club v. Hodel

(10th Cir. 1988), 848 F.2d 1068, 1090-91. Based on the

requirements of §§ 77-6-201(2), -206 and -210, MCA, the DSL has the

duty to manage agricultural, grazing, and other surface leased land

to protect the best interests of the state, under the multiple use

concept, which necessarily includes considering consequences to

wildlife and the environment. See § 77-l-203, MCA. When the DSL

is made aware of changes in the existing conditions or uses

7
relating to an operation under a lease or permit, and those changes
have the potential to significantly affect the quality of the human
environment, then the DSL must, pursuant to MEPA, evaluate those
changes for significant impacts. In the instant case substantial
questions remain as to what impact grazing domestic sheep will have
on the bighorn population.
The plaintiff need not show that significant effects will
in fact occur, but if the plaintiff raises substantial
questions whether a project may have a significant
effect, an EIS must be prepared.
LaFlamme v. Federal Energy Regulatory Commission (9th Cir. 1988),
852 F.2d 389, 397.

Particularly in light of MEPA's statutory goal of promoting
efforts which will prevent or eliminate damage to the environment,
S 75-l-102, MCA, and the conflicting evidence in the record, the
DSL failed to sufficiently explain and substantiate its December

30, 1992 decision to allow Madden to continue grazing sheep
adjacent to the bighorn range without proceeding with an EIS.
Further, it failed to sufficiently evaluate the significance of the
impacts that domestic sheep would cause to the bighorn. Both the
revised EA and the DSL's brief to this Court concede that the
revised EA did not address the significance of impacts. An EIS
must be prepared for state actions that significantly affect the
quality of the human environment. Section 75-l-201(1) (b) (iii),
MCA. "In order to implement [MEPAI, the agency shall determine the
significance of impacts associated with a proposed action."

Section 26.2.644(l), ARM. The Sportsmen correctly point out that
the DSL did not complete MEPA's mandatory "significant impacts"
8
analysis. Because the DSL did not in the first instance adequately
determine and consider the significance of the impacts associated
with grazing domestic sheep on lands adjacent to bighorn, the DSL
acted arbitrarily and capriciously and unlawfully when it concluded
that changes to Madden's grazing plan reduced the probable
significant impact to the bighorn.
The District Court was incorrect in agreeing with the DSL that
it was not required to engage in a significant impacts analysis on
the theory that it was doing a voluntary as opposed to a mandatory
EA. Based on our above holding, full compliance with MEPA is
mandated in this case. Furthermore, we find no provisions in MEPA,
the administrative rules, or case law providing for partial
compliance with the law when compliance with the law is purportedly
voluntary.
We do not here decide whether grazing domestic sheep adjacent
to the Sula bighorn range is appropriate or not, but rather,
whether the DSL's environmental review was sufficient. In the
instant case, given the potential adverse impact on the bighorn,
the change from grazing cattle to grazing sheep altered the
existing permit to such an extent that allowing the change
constituted a major state action. Thus, MEPA was triggered by
DSL's awareness of the change from grazing cattle to grazing sheep
adjacent to bighorn range. See Andrus, 442 U.S. at 363 n.21.
Since the DSL failed to engage in a significant impacts analysis,
the matter must be remanded for preparation of an EIS. See Sierra
Club v. U.S. Forest Service (9th Cir. 1988), 843 F.2d 1190. In

9
Sierra Club, the Forest Service decided not to prepare an EIS with

regard to certain timber sales. The plaintiffs challenged that

decision because the environmental assessment did not adequately

discuss the relevant criteria in the federal regulations. The

Ninth Circuit held that the standard for determining "if an action

will significantly affect the quality of the human environment is

whether the plaintiff has alleged facts which, if true, show that

the . . . [action (or inaction)] may significantly degrade some

human environmental factor." Sierra Club, 843 F.Zd at 1193;
quoting Foundation for North Am. Wild Sheep v. U.S. Dep't of

Agriculture (9th Cir. 1982), 681 F.2d 1172, X177-78. "A
determination that significant effects on the human environment

will in fact occur is not essential. . . If substantial questions

are raised whether a project may have a significant effect upon the

environment, an EIS must be prepared." Id.; quoting Foundation,

681 F.2d at 1178. The Sierra Club court concluded:

Because substantial questions have been raised concerning
the potential adverse effects of harvesting these timber
sales, an EIS should have been prepared. The Forest
Service's decision not to do so was unreasonable. . . .
It failed to account for factors necessary to determine
whether significant impacts would occur. Therefore its
decision was not "fully informed and well-considered."
Endangered Species, 760 F.2d at 986 (quoting Vermont
Yankee, 435 U.S. at 558, 98 s.ct. at 1219). [Other
citations omitted.]
Sierra Club, 843 F.2d at 1195. Although the standard is now
arbitrary and capricious rather than "reasonable," the Ninth

Circuit's remedy of remanding for an EIS is still appropriate. The
DSL's own records evidence the potential harm in changing from

cattle to sheep in this particular area. Based on this record of

10
conflicting evidence, substantial questions remain and the DSL must

comply with the requirements of MEPA and complete an EIS. It must

look further at the grazing license and grazing practices to

determine the significance of allowing a change from grazing cattle

to grazing sheep. Implicit in the requirement that an agency take
a hard look at the environmental consequences of its actions is the

obligation to make an adequate compilation of relevant information,

to analyze it reasonably and, perhaps most importantly, not to

ignore "pertinent data." See Sierra Club v. United States Army

Corps of Engineers (2nd Cir. 19821, 701 F.2d 1011, 1029. The DSL

did not follow MEPA's implicit mandate that it take a hard look by

completing a significant impacts analysis: The District Court

therefore erred in granting summary judgment to Respondents.

It is particularly important that the DSL establish a full and

complete record on review. The United States Supreme Court has

addressed an agency's failure to create an adequate record:

If the record before the agency does not support the
agency action, if the agency has not considered all
relevant factors, or if the reviewing court simply cannot
evaluate the challenged agency action on the basis of the
record before it, the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.

Florida Power and Light Co. v. Lorion (1985), 470 U.S. 729, 744,

105 S.Ct. 1598, 1607, 84 L.Ed.Zd 643, 656. Along these lines, the

Hodel court concluded that:
[wlithout an administrative record, courts are left to
rationalize the agency's decision -- a form of review
which abandons standards in favor of predilections.
"This kind of speculation regarding the basis for an
agency's decision not to prepare an EIS is precisely what
NEPA was intended to prevent."
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Hod&, 848 F.2d at 1093; quoting LaFlamme v. F.E.R.C. (9th Cir.
1988), 842 F.2d 1063, 1070. Due to the lack of a proper
significant impacts analysis, the record does not uphold the DSL's
decision. The record essentially consists only of the revised EA
and Decision Notice. This put the District Court in the untenable
position of basing its review on a meager administrative record.
Madden suggests that if we adopt the Sportsmen's argument we
will be imposing a requirement that a full EIS be completed "on
every renewal and assignment of every license and lease of state
land." We are not here imposing such a requirement with regard to
lease renewals or assignments. Under the facts of this case, it is
not the lease renewal or assignment that triggers MEPA analysis.
Rather, it is the DLS's awareness of Madden's change of use from
grazing cattle to grazing sheep adjacent to bighorn range in the
face of evidence that such a change in use may adversely affect the
bighorn. An EIS is required only when there is a substantial
question as to whether the change of use may have a significant
effect upon the human environment. We conclude that once the DSL
became aware of this change in use, the DSL's allowing the change
of use constituted a major governmental action and its duty to
fully comply with MEPA was triggered. In the instant case, the DSL
failed to satisfy its MEPA duties when it rendered a decision
without adequately considering the significant impacts of its
actions in accordance with 5 75-l-201, MCA. MEPA does not require
that agency actions not impact the human environment. MEPA does

require that agencies assess their actions so as to make an

12
informed decision. A corollary to an informed decision is public
education and input.
Even after fully complying with MEPA procedure, an agency may
determine that an action will result in significant impacts and
then, nonetheless, approve the action under MEPA. The agency,
however, is then accountable for its decision.
An "agency must supply a convincing statement of reasons
why potential effects are insignificant." The
Steamboaters v. F.E.R.C. [9th Cir. 19851, 759 F.2d
[1382,1 1393. While it is true that mitigation measures
can justify an agency's conclusions that a project's
impact is not significant, an agency must explain exactly
how the measures will mitigate the project's impact. Id.
at 1394; Jones v. Gordon, 792 F.2d at 829.
LaFlamme, 852 F.2d at 399.

In the instant case, the DSL did not engage in "significance
of impacts" analysis. Accordingly it was unable to take the
requisite hard look and it is impossible for this Court or the
District Court to determine whether the adverse impacts have been
compensated for or not.
Finally, the goal of maximizing income derived from school
trust lands does not exempt the DSL or any agency from complying
with applicable environmental laws. The DSL strenuously argues
that its ability to modify the leases1 at issue is limited by its
state land trust duty to maximize the income derived from trust
lands. In addition, the Seeley Lake and Brady School Districts and
the Montana Stockgrowers, Woolgrowers, and Bitterroot Stockgrowers

1 The real issue here is not whether the DSL can modify a
lease but rather can the DSL, without conducting a significant
impacts analysis, allow a lessee to unilaterally change the use
from cattle to sheep adjacent to bighorn range.
13
Associations, filing as amicus curiae in support of the DSL,
conclude that the state's trust obligation to secure the greatest
dollar value for school trust lands is predominant. School trust
lands need not be used exclusively for grazing or agriculture. See
Title 77, Chapter 1, Part 4, 5 77-6-209, and Title 77, Chapter 6,
MCA. For instance, the Sportsmen suggest that there is precedent
for the DSL and the Department of Fish, Wildlife, and Parks to
agree to a plan whereby a portion of Sula bighorn hunting permit
fees could go to the school trust. This would generate funds for
the school trust and, assuming such hunting is ecologically sound,
protect the bighorn herd. Finally, we note that neither the DSL
nor the amicus curiae suggest why or how domestic sheep grazing
generates more money for the school trust than cattle grazing. The
Sportsmen and the record (sparse as it is) suggest that alternative
uses to grazing may increase the value earned for the trust.
Income is "a" consideration--not "the" consideration regarding
school trust lands: Maximizing income is not paramount to the
exclusion of wildlife or environmental considerations in the MEPA
context. Sections 75-l-102, -103, and -105, MCA.
[ilt is the continuing responsibility of the state of
Montana to use all practicable means consistent with
other essential considerations of state policy to improve
and coordinate state plans, functions, programs, and
resources to the end that the state may: (a) fulfill the
responsibilities of each generation as trustee of the
environment for succeeding generations.
Section 75-l-103(2), MCA (emphasis added). The DSL, and not this
Court, is in the best position to consider alternatives as part of
its MEPA analysis.

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 MEPA requires that an agency be informed when it balances
preservation against Utilization of our natural resources and trust
lands. The DSL may not, as here, reach a decision without first
engaging in the requisite significant impacts analysis. The record

in its present form, convinces us that the DSL by not first
conducting an appropriate analysis under MEPA, arbitrarily,

capriciously and unlawfully allowed Madden to change use from
grazing cattle to grazing sheep adjacent to bighorn range.
Therefore, we conclude that the DSL must complete an EIS to

comprehensively review the environmental impacts resulting from
this change of use adjacent to bighorn range.
Because of our holding in this issue, we need not consider
issues two and three.
Reversed and remanded to the District Court for an order
requiring preparation of an EIS.

We concur.

Chief Justice

Justices
15
Justice Karla M. Gray, dissenting.

I must respectfully dissent from most of the Court's opinion

and from the result it reaches. My main problems with the opinion

are its overbreadth and its lack of clarity concerning which MEPA

statutes or regulations the Court determines DSL actually violated

here. If the Court made even a passing analysis of Montana law in

resolving this case in favor of appellants, I undoubtedly would

join in the opinion; I cannot do so as the opinion is written.

I agree that the standard of review of the MEPA decision at

issue in this case is the "unlawful or arbitrary and capricious"

standard set forth in North Fork. Unfortunately, the Court does

not clearly apply that standard in resolving this case.

I also agree that, in Kadillak, we stated that it was

appropriate to look to federal interpretations of NEPA in

interpreting MEPA. However, nothing in Kadillak or any other

source authorizes this Court to dispense altogether with applying

Montana law and merely apply broad statements from selected federal

cases to the factual scenario before us without any discussion of

how and why those statements are applicable here. The result of

this approach by the Court is a lack of analysis regarding which

particular provisions of MEPA and the controlling regulations have

been violated and a total lack of guidance to state agencies

attempting to comply with the critically important MEPA and to

state courts attempting to ensure such compliance. I cannot agree.

16
 The lack of specificity in the opinion makes it difficult to

craft an appropriate dissent. Thus, I offer only the following

concerns and questions about the authorities on which the Court

relies in resolving this case.

The Court's primary thesis about MEPA appears early in--and

permeates--its opinion. According to the Court, the guiding

premise of MEPA is that "Iglenerally, state action significantly

affecting the quality of the human environment requires MEPA

analysis." Section 75-l-201(1) (b) (iii), MCA, is cited for this

proposition. The problem with the Court's approach is that

"generalizing" about this pivotal statute is both misleading and

erroneous.

The statute actually says that, "to the fullest extent

possible[,l . . all agencies of the state . . shall include in

every recommendation or report on proposals for projects,

legislation, and other major actions of state government

significantly affecting the quality of the human environment" a

detailed statement regarding environmental impacts and effects.
Section 75-l-201(1) (b) (iii), MCA. The Court does not analyze the

meaning of "to the fullest extent possible." More importantly,

nowhere does the Court establish that any "recommendation or report

on a proposal" for a major action of state government is at issue

in this case.

Most important of all, the Court never bothers to apply the

definition of "action," vis-a-vis § 75-l-201(1) (b) (iii), MCA, which

is found in § 26.2.642(l), ARM, to DSL's "allowing" of a change of

17
use after a grazing permit is in place and the change of use has

occurred. An "action," insofar as it is relevant here, is "a
project or activity involving the issuance of a lease, permit,

license, certificate, or other entitlement for use or permission to

act" by the agency. Section 26.2.642(l), ARM. As the Court

concedes, no activity involving the issuance of a lease is at issue
here. Thus, this straightforward definition simply does not

support the Court's conclusion that "if a changed use or condition
. . . significantly affects the quality of the human environment,

then the state's allowing that change in use or change in condition

is a major state action pursuant to MEPA, triggering the MEPA
review process." Nor does the Court provide any other support--
under MEPA or otherwise--for this proposition.

Instead, the Court cites to one United States Supreme Court
case and one Ninth Circuit Court of Appeals case which it

apparently believes support its conclusion. Neither case does so

even through the broad language quoted, much less through an actual

application of those cases to the facts presently before us.

It is true that in Andrus v. Sierra Club (1979), 442 U.S. 347,

99 S.Ct. 2335, 60 L.Ed.2d 943, the United States Supreme Court
observed that major federal actions include the "expansion or

revision of ongoing programs;" it did so in the context of

resolving the issue of whether appropriation requests constitute

"proposals for major federal actions" under NEPA. It concluded

that appropriation requests were requests to fund action already

proposed, rather than proposals for major government actions to be

18
taken in the future. Sierra Club, 99 S.Ct. at 2343. Sierra Club

has no direct applicability here; it leaves unanswered, as does

this Court, the specific question of what constitutes an expansion

or revision of an ongoing program. Sierra Club does point out,

however, that the "proposal" language in NEPA--like that in MEPA--

is intended to have some meaning, a meaning never addressed by this

Court in the present case. Indeed, this Court's purpose in quoting

from Sierra Club--other than to insert broad and inapposite

language--remains a mystery.

Similarly, the Court's reliance on Upper Snake River Chapter

of Trout Unlimited v. Hodel (9th Cir. 1990), 921 F.2d 232, is

misplaced. While that opinion does state that "if an ongoing

project undergoes changes which themselves amount to 'major Federal

actions,' the operating agency must prepare an EIS," the Ninth

Circuit was referring to the definition of "major Federal action"

contained in NEPA. Whatever the definition under NEPA, the case

before us is governed initially by the specific definition of

"action" contained in § 26.2.642, ARM. Even accepting the Ninth

Circuit's broad language, however, this Court does not apply the

quoted language to the facts before us. It does not specify &,

in this case, a change in an ongoing project exists, much less how

such a change amounts to state action as "action" is defined in §

26.2.642(l), ARM, or to "major" state actions as the term is used
in 5 75-l-201(1) (b) (iii), MCA.

Moreover, I note that in Uuper Snake River, the Ninth Circuit

concluded, applying the NEPA definitions, that the Bureau of

19
Reclamation's reduction of the flow of water from the Palisades Dam

on the South Fork of the Snake River in Idaho was not a major

federal action. Uooer Snake River, 921 F.2d at 234. It reached
that conclusion in advance of any consideration of whether the

action at issue had a significant effect on the environment and,

indeed, declined to reach the "significant effect" issue "because
the reduction does not constitute a 'major Federal action' within

the meaning of the statute." Upper Snake River, 921 F.2d at 234.

Thus, to the extent Uoner Snake River has any application here, it

clarifies that a court must first determine whether the action at

issue comes within the controlling definitions of "major action;"
only when that question is answered in the affirmative may the

court proceed to questions involving the significance of any

impacts or effects from the action at issue. In the case before

US, the Court essentially turns the questions around and becomes
mired in the "significance" questions prior to having applied the

controlling definitions to determine whether the "action" at issue

triggers MEPA analysis at all.

Finally, with regard to Uooer Snake River, I reiterate that

the Ninth Circuit concluded that the Bureau of Reclamation's
substantial reduction in water flow from the Palisades Dam did not

constitute a major federal action under NEPA. How, then, even

assuming identical controlling definitions, can DSL's "nonaction"

in this case constitute a major action of state government? The

Court does not explain.

The Court notes its agreement with DSL's argument that, if an

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agency does not have an affirmative duty to act, the failure to act

does not trigger NEPA or, presumably, MEPA. It then quotes from
Sierra Club v. Hodel (10th Cir. 1988), 848 F.2d 1068, for the

proposition that "if an agency's duty to avoid environmental harm

is mandatory, then the agency's inaction constitutes an action for

NEPA purposes." The Court does not explain how the case relates to

the situation before us and it is my view that the case is, like

those referenced above, inapplicable here.

In Sierra Club, the agency's mandatory environmental duty did

not spring from NEPA itself. There, the Tenth Circuit determined

that the Secretary's nondegradation duty toward wilderness study

areas was mandatory under the Federal Land Policy Management Act of

1976. Sierra Club, 848 F.2d at 1075. In addition, the court

determined that, even if the Secretary's activity amounted to

"nonaction" under the language of NEPA 5 102(2) (c), requiring an

EIS in advance of "major Federal actions," a Council on

Environmental Quality (CEQ) regulation specifically made the

Secretary's failure to act a "major federal action" for NEPA

purposes. Sierra Club, 848 F.2d at 1091.

No regulation corresponding to the CEQ regulation at issue in

Sierra Club--which made the "nonaction" a major federal action

triggering NEPA--is involved in this case. Thus, I cannot see how

Sierra Club has any application here or how it supports in any way

the Court's conclusion that "[wlhen the DSL is made aware of

changes in the existing conditions or uses relating to a lease or

permit, and those changes have the potential to significantly

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affect the quality of the human environment, then the DSL must,

pursuant to MEPA, evaluate those changes for significant impacts."
Under the Court's decision in this case, what are state

agencies or district courts to make of the clear thrust of the

regulations implementing MEPA which focus on MEPA being triggered

for "proposed actions"? What, for example, is the meaning of

§ 26.2.641, ARM, captioned Policy Statement Concernins MEPA Rules,

which states that in order to fulfill the statutorily-stated

purpose of MEPA, agencies must conform to the rules at §§ 26.2.642

et seq., ARM, "prior to reaching a final decision on pronosed

actions covered by MEPA"? Or the definition of an EA at 5

26.2.642(g), ARM, as an analysis of a "proposed action to determine

whether an EIS is required" or to serve one of the other purposes

described in § 26.2.643(2), ARM? Or the general requirements of

the environmental review process set forth in § 26.2.643, ARM,

which repeatedly specify "proposed action"? Or, critically, the

requirement in § 26.2.644, ARM, setting forth the criteria to be
used in determining "the significance of impacts associated with a

pronosed action." How and when does a nonaction or a nondecision

after a change of use in a state grazing permit come within the

"proposed action" language which permeates the controlling

regulations and the legislative policy statement in 5 75-l-

201(l) (b) (iii), MCA? The Court never explains, and I submit that

the Court's decision today provides state agencies with no basis

for evaluating when, under MEPA and the controlling regulations,

MEPA will be triggered.

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 Finally, I feel compelled to comment on the ease with which

the Court concludes not only that MEPA was triggered, but also that

an EIS must be prepared. Again, the Court relies for its
conclusion on broad statements from United States Courts of Appeal

decisions holding that an EIS is required whenever a person alleges

facts which, if true, show that the action/inaction “may”

significantly degrade some human environmental factor. Again, no

Montana statutes or regulations are cited or applied.
Specifically, for example, the Court does not explain how the cases

upon which it relies square with the clear language in E; 75-I-201,

MCA, that a detailed environmental statement is required for

proposals for major state actions "siqnificantlv affectinq the

quality of the human environment." Nor does it address in any way

the criteria set forth in 5 26.2.643, ARM, for when a state agency

must prepare an EIS, in particular the mandate that an EIS is

required when "the proposed action is a major action of state

government sisnificantlv affectinq the quality of the human

environment." Section 26.2.643(l) (b), ARM. How does the
"significantly affecting" language in the Montana statute and

regulation support the Court's conclusion that an EIS is required
whenever an action (or, according to the Court, inaction) mav

significantly affect the environment? Are state agencies to

totally disregard MEPA statutes and regulations hereafter? The
Court does not explain.

I close by restating here what I stated at the outset: the

troubling aspects of the Court's opinion in this case are its lack

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