Meic v. Deq , 2016 MT 9 ( 2016 )

January 12 2016
DA 15-0208
Case Number: DA 15-0208
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 9
MONTANA ENVIRONMENTAL INFORMATION
CENTER,
Plaintiff and Appellant,
v.
MONTANA DEPARTMENT OF ENVIRONMENTAL
QUALITY and GOLDEN SUNLIGHT MINES, INC.,
Defendants and Appellees,
JEFFERSON COUNTY, a Political subdivision of
the State of Montana,
Defendant and Intervenor.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Jefferson, Cause No. DV 2014-36
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David K. W. Wilson, Jr., Morrison, Sherwood, Wilson & Deola, PLLP,
Helena, Montana
Elizabeth A. Brennan, Brennan Law & Mediation, PLLC, Missoula,
Montana
For Appellees:
KD Feeback, Toole & Feeback, PLLC, Lincoln, Montana
R. Timothy McCrum, Thomas R. Lundquist, Crowell & Moring LLP,
Washington, DC
(Attorneys for Golden Sunlight Mines, Inc.)
John North, Ed Hayes, Department of Environmental Quality,
Helena, Montana
Mathew Johnson, Jefferson County Attorney, Steven C. Haddon, Deputy
County Attorney, Boulder, Montana
Submitted on Briefs: November 4, 2015
Decided: January 12, 2016
Filed:
__________________________________________
Clerk
2
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 The Montana Environmental Information Center (MEIC) appeals from an order
issued by the Fifth Judicial District Court, Jefferson County, granting summary judgment
in favor of the Montana Department of Environmental Quality (DEQ) and Golden
Sunlight Mines, Inc (GSM). We affirm.
¶2 In April 2014, MEIC filed suit in the Fifth Judicial District Court, challenging the
DEQ’s decision to approve the expansion of GSM’s gold mine to include a smaller
nearby pit. MEIC contended that the reclamation plan the DEQ chose to reclaim the
nearby pit violated Article IX, Section 2 of the Montana Constitution and the Montana
Metal Mine Reclamation Act (MMRA), § 82-4-301, MCA, et seq. MEIC argued that
Article IX, Section 2 of the Montana Constitution and the MMRA require land disturbed
by the taking of natural resources to be “fully reclaimed” to its previous condition, and
that the reclamation plan the DEQ chose to reclaim the pit failed to do so. MEIC
maintained that the DEQ must adopt a reclamation plan that requires GSM to completely
backfill the pit after closure in order to comply with the Montana Constitution and the
MMRA. MEIC also contended that the DEQ’s decision to select the particular
reclamation plan was arbitrary and capricious because the criteria set forth in the MMRA
were not satisfied.
¶3 In response, the Appellees asserted that MEIC should be collaterally estopped
from relitigating whether the Montana Constitution and the MMRA require lands
disturbed by a mining operation to be fully reclaimed. Appellees argued that, in
3
connection with a reclamation plan for a different pit at GSM’s mine, this precise
question had already been litigated, with MEIC receiving an adverse ruling from the
District Court. Alternatively, the Appellees argued that neither the Montana Constitution
nor the MMRA require full reclamation of disturbed lands. The Appellees also
maintained that the DEQ’s decision regarding its choice of reclamation plans was
supported by substantial evidence under the criteria set forth in the MMRA.
¶4 The District Court agreed with the Appellees, concluding that MEIC’s
constitutional and statutory arguments were collaterally estopped and the DEQ’s decision
was supported by the evidence under the MMRA criteria. We affirm the District Court’s
decision regarding collateral estoppel and thus do not address the merits of whether
Article IX, Section 2 of the Montana Constitution and the MMRA require land disturbed
by the taking of natural resources to be fully reclaimed to its previous condition. We also
affirm the District Court’s holding that the criteria under the MMRA were satisfied.
¶5 We address the following issues on appeal:
1. Whether MEIC is precluded from relitigating the issue of whether Article IX,
Section 2 of the Montana Constitution requires land disturbed by the taking of
natural resources to be fully reclaimed to its previous condition.
2. Whether MEIC is precluded from relitigating the issue of whether the Montana
Metal Mine Reclamation Act requires land disturbed by the taking of natural
resources to be fully reclaimed to its previous condition.
3. Whether the DEQ made a reasoned decision in selecting the Agency-Modified
Alternative under the criteria set forth in the Montana Metal Mine Reclamation
Act.
4
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Golden Sunlight Mines operates an open pit gold mine on the southern edge of the
Bull Mountains near Whitehall, Montana. In September 2012, GSM submitted an
application to the DEQ to amend the operating permit for its mine, proposing to expand
its mining operation to develop a smaller nearby pit that the parties refer to as the North
Area Pit. The North Area Pit is estimated to cover approximately 49.4 acres. The
expansion would allow GSM to mine an additional 4.2 million tons of gold ore and
extend GSM’s current mining operation by about two years. GSM proposed mining the
North Area Pit through the use of conventional open pit mining methods which would be
consistent with its current mining operation. In order to obtain the gold ore beneath the
North Area Pit, GSM proposed excavating below the natural water table and installing
external dewatering wells adjacent to the North Area Pit to lower the water table beneath
the pit and allow for the mineral extraction.
¶7 As part of the proposed expansion, GSM submitted a reclamation plan for the
North Area Pit to the DEQ. In 2013, the DEQ issued a draft Environmental Impact
Statement (EIS) which discussed the impacts of four alternative reclamation plans for the
North Area Pit: (1) the No Action Alternative; (2) the GSM Proposed Reclamation
Alternative; (3) the Agency-Modified Alternative; and (4) the North Area Pit Backfill
Alternative. The No Action Alternative reflects the current mining operation conducted
under GSM’s existing permit with no management plan for an additional disturbance at
the North Area Pit. Under the GSM Proposed Reclamation Alternative, the
5
approximately 52.6 million tons of non-ore waste rock that will be generated from the
North Area Pit will be primarily placed in an expansion area on the east side of the mine.
The GSM Proposed Reclamation Alternative requires GSM to continue to operate its
external dewatering wells after closure of the mine to prevent contamination of local
groundwater. In addition, GSM must install an underground in-pit sump to protect
against local groundwater contamination in the event that one of the external dewatering
wells fails. The Agency-Modified Alternative is the same as the GSM Proposed
Reclamation Alternative with the exception of various additional modifications
developed by the DEQ to further mitigate environmental impacts associated with the
mining. These modifications include: (1) the implementation of closure geodetic and
ground-movement monitoring for the North Area Pit to ensure safe access and to keep
reclamation systems working, and (2) the preparation of a detailed bat and raptor habitat
plan for the North Area Pit to provide habitat and add utility to the North Area Pit
highwall. Lastly, the fourth proposed reclamation plan identified as the North Area Pit
Backfill Alternative requires GSM to use 9.2 million tons of waste rock from the mine to
backfill the North Area Pit. Like the GSM Proposed Reclamation Alternative and the
Agency-Modified Alternative, the Backfill Alternative requires GSM to continue to
operate the external dewatering wells after closure. However, unlike the other
alternatives, the Backfill Alternative does not allow for the installation of an in-pit sump
to protect against contamination of local groundwater in the event of an external
dewatering well failure. In the draft EIS, the DEQ extensively analyzed the advantages
6
and disadvantages associated with these four alternatives and evaluated the alternatives in
light of the criteria set forth in the MMRA.
¶8 Following a public hearing and comments, the DEQ issued a final EIS identifying
the Agency-Modified Alternative as the preferred alternative. In rejecting the Backfill
Alternative, the DEQ recognized several benefits associated with the Backfill Alternative,
including better structural stability, increased wildlife habitat, and added aesthetic value.
However, despite these advantages, the DEQ rejected the Backfill Alternative in lieu of
the Agency-Modified Alternative, concluding that the Backfill Alternative failed to
sufficiently mitigate the risk of groundwater contamination because it did not permit
GSM to install an in-pit sump. The DEQ explained that local groundwater and surface
water contamination could result if the natural water table rebounds and comes into
contact with the acidic North Area Pit highwalls. The DEQ found that unlike the
Agency-Modified Alternative in which the underground sump would prevent the water
table from rebounding in the event of an external dewatering well failure, “[i]f the
external dewatering wells were to fail under the North Area Pit Backfill Alternative, it is
unlikely that replacement wells could be installed before impacted groundwater begins to
discharge from the North Area Pit.” Thus, the DEQ explained that it chose the
Agency-Modified Alternative rather than the Backfill Alternative because the
Agency-Modified Alternative provided adequate assurance that pollution of the local
aquifers and surface waters would not occur. The Backfill Alternative did not provide
such assurances.
7
¶9 On January 9, 2014, the DEQ approved the expansion of GSM’s mine to include
the proposed North Area Pit and issued a Record of Decision (ROD) outlining the
reasons for its decision. On April 8, 2014, MEIC filed its complaint, challenging the
DEQ’s decision to approve the expansion of the existing mining operation to include the
North Area Pit with the Agency-Modified Alternative as the chosen reclamation plan.
MEIC contended that the DEQ’s decision to choose the Agency-Modified Alternative
violated the Montana Constitution and the MMRA. MEIC argued that Article IX,
Section 2 of the Montana Constitution requires that all land disturbed by a mining
operation must be “fully reclaimed” to its previous condition, and that, because of this
constitutional mandate, the MMRA must also require all lands to be fully reclaimed.
MEIC further sought a legal declaration from the District Court that to the extent the
MMRA could be interpreted to “allow less than full reclamation” the MMRA violated
Article IX, Section 2 of the Montana Constitution. Finally, MEIC maintained that the
DEQ’s decision to adopt the Agency-Modified Alternative was arbitrary and capricious
because the alternative did not satisfy the criteria under the MMRA.
¶10 In response, the Appellants argued that MEIC should be collaterally estopped from
contending that Article IX, Section 2 of the Montana Constitution and the MMRA require
full reclamation of disturbed lands because that issue had been previously litigated in
Montana Environmental Information Center v. Montana Department of Environmental
Quality, 2011 Mont. Dist. LEXIS 99 (5th Jud. Dist. Ct. June 30, 2011) (hereinafter,
MEIC I). In MEIC I, MEIC filed suit against the DEQ and GSM in the Fifth Judicial
8
District Court, challenging the DEQ’s adoption of its reclamation plan regarding a large
open pit mine also located at GSM’s mine near Whitehall. The parties refer to this open
pit mine as the Mineral Hill Pit. As in the present case, MEIC claimed that the
reclamation plan was unlawful under the Montana Constitution and the MMRA.
Similarly, MEIC argued that Article IX, Section 2 of the Montana Constitution and the
MMRA require all land disturbed by mining operations to be “fully reclaimed” to its
previous condition. MEIC likewise sought a legal declaration that to the extent the
MMRA “allows less than full reclamation” the statute was in violation of this
constitutional provision.
¶11 The District Court disagreed with MEIC in MEIC I, holding that Article IX,
Section 2 of the Montana Constitution does not require disturbed land to be returned to its
previous condition. Instead, the District Court concluded that the constitutional standard
by which legislative actions are measured under Article IX, Section 2 of the Montana
Constitution is whether the Legislature has provided “reasonable” standards for the
reclamation of disturbed lands. Citing the language of the Montana Constitution, the
transcripts from the 1972 Constitutional Convention, and a lack of precedent from this
Court indicating that reclamation is a fundamental right, the court explained that the
constitutional provision “provide[s] a guide for the legislature” and that the “legislature is
authorized to do that which is reasonable” under the provision. MEIC did not appeal the
District Court’s decision in MEIC I.
9
¶12 In the present case, based on its conclusion in MEIC I, the District Court held that
MEIC was estopped from relitigating the question of whether Article IX, Section 2 of the
Montana Constitution and the MMRA require land disturbed by the taking of natural
resources to be fully reclaimed to its previous condition. The court explained that in
MEIC I it “squarely rejected MEIC’s argument that ‘[Article IX, Section 2 of the
Montana Constitution] requires restoration of the ground to its previous condition.’” The
court further explained that in MEIC I it expressly “held that this provision provides a
‘guide for the legislature’” and “empowers the legislature to ‘do that which is
reasonable.’” After determining that “[c]ollateral estoppel precludes MEIC from arguing
that the MMRA is unconstitutional to the extent that it did not require restoration of the
ground to its previous condition,” the court concluded that the Agency-Modified
Alternative satisfied the criteria under the MMRA.
STANDARD OF REVIEW
¶13 We review a district court’s ruling on motions for summary judgment de novo.
Gibbs v. Altenhofen, 2014 MT 200, ¶ 8, 376 Mont. 61, 330 P.3d 458. Summary
judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and
admissions on file,” together with any affidavits, demonstrate that no genuine issue exists
as to any material fact and that the moving party is entitled to judgment as a matter of
law. Dewey v. Stringer, 2014 MT 136, ¶ 6, 375 Mont. 176, 325 P.3d 1236. The
availability of collateral estoppel and the preclusive effect of a prior judgment are also
10
reviewed de novo. Brilz v. Metro. Gen. Ins. Co., 2012 MT 184, ¶ 13, 366 Mont. 78, 285
P.3d 494.
¶14 We review an agency’s decision not classified as a contested case under the
Montana Administrative Procedure Act1 using the same standard as the district court.
We determine whether the agency decision was “arbitrary, capricious, unlawful, or not
supported by substantial evidence.” Clark Fork Coal. v. Mont. Dep’t of Envtl. Quality,
2008 MT 407, ¶ 21, 347 Mont. 197, 197 P.3d 482. In making this inquiry, “we consider
whether the decision was ‘based on a consideration of the relevant factors and whether
there has been a clear error of judgment.’” Clark Fork, ¶ 21 (quoting North Fork Pres.
Ass’n v. Dep’t of State Lands, 238 Mont. 451, 465, 778 P.2d 862, 871 (1989)). Although
our review of an agency decision is narrow, we will not “automatically defer to the
agency ‘without carefully reviewing the record and satisfying [our]selves that the agency
has made a reasoned decision.’” Clark Fork, ¶ 21 (quoting Friends of the Wild Swan v.
DNRC, 2000 MT 209, ¶ 28, 301 Mont. 1, 6 P.3d 972).
DISCUSSION
¶15 1. Whether MEIC is precluded from relitigating the issue of whether Article IX,
Section 2 of the Montana Constitution requires land disturbed by the taking of natural
resources to be fully reclaimed to its previous condition.
¶16 Issue preclusion (collateral estoppel) bars a party from relitigating an issue already
decided in prior litigation. Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont. 281,
1
“Contested case” denotes a “proceeding before an agency in which a determination of legal
rights, duties, or privileges of a party is required by law to be made after an opportunity for
hearing.” Section 2-4-102(4), MCA. All parties to this action agree that this is not a contested
case within the meaning of § 2-4-102(4), MCA.
11
130 P.3d 1267. The doctrine ensures that “once a court decides an issue of fact or law
necessary to its judgment, that decision precludes relitigation of the same issue in a
different cause of action between the same parties.” Brilz, ¶ 18. Issue preclusion serves
dual purposes. First, it protects the interests of litigants by “reliev[ing] parties of the
expense and vexation of multiple lawsuits.” Brilz, ¶ 18. Second, it promotes judicial
economy by “prevent[ing] parties from incessantly waging piecemeal, collateral attacks
against judgments.” Baltrusch, ¶ 15. In substantively considering whether the issues are
the same in the former and present actions, we do not equate an issue with “elements of a
cause of action.” Rather, “the bar that arises from collateral estoppel extends to all
questions essential to the judgment and actively determined by a prior valid judgment.”
McDaniel v. State, 2009 MT 159, ¶ 33, 350 Mont. 422, 208 P.3d 817.
¶17 We apply a four-element test to determine whether relitigation of an issue is
barred:
1. Was the issue decided in the prior adjudication identical to the issue
raised in the action in question?
2. Was there a final judgment on the merits in the prior adjudication?
3. Was the party against whom preclusion is now asserted a party or in
privity with a party to the prior adjudication?
4. Was the party against whom preclusion is now asserted afforded a full
and fair opportunity to litigate the issue which may be barred?
Omimex Can., LTD. v. State, 2015 MT 102, ¶ 13, 378 Mont. 490, 346 P.3d 1125 (citing
McDaniel, ¶ 28). The parties agree that the final three elements of the issue preclusion
test are satisfied. Further, the parties do not dispute that in MEIC I MEIC directly
12
presented the District Court with the question of whether Article IX, Section 2 of the
Montana Constitution requires disturbed land to be restored to its previous condition, and
that the court “squarely rejected” this argument. MEIC thus focuses on the first
element—whether the issue is identical—and advances two arguments in support of its
contention that the issue in MEIC I is not identical to the issue in the present action.
First, MEIC argues that the legal issue here and the legal issue in MEIC I are different
because the constitutional standard it advanced in MEIC I is not the standard its puts forth
in the current litigation. Second, MEIC argues that factual differences in the two actions
create different issues. We address MEIC’s arguments in turn.
¶18 MEIC begins by arguing that the District Court’s holding entirely “misses the
point” with respect to its constitutional argument in this case, contending that, contrary to
the District Court’s understanding, MEIC did not argue that Article IX, Section 2 of the
Montana Constitution requires land disturbed by the taking of natural resources to be
fully reclaimed to its previous condition. Instead, MEIC maintains that its argument here
and in the District Court below is that the Constitution requires the “DEQ to choose the
most effective reclamation alternative” and the “Backfill Alternative most effectively
reclaims the land disturbed by the North Area Pit.”
¶19 The Appellees respond that the legal issue here is the same as the legal issue in
MEIC I and MEIC is attempting on appeal to reframe the same constitutional argument it
made in MEIC I in order to avoid issue preclusion. The Appellees argue that the
constitutional standard MEIC has offered “has been somewhat of a moving target during
13
the course of the GSM litigation.” Appellees observe that in the District Court MEIC
argued that the Constitution requires “full reclamation,” but on appeal MEIC argues that
the Constitution requires the “most effective reclamation alternative.” The Appellees
maintain the legal issue nevertheless remains the same: “whether the Constitution
requires [full] restoration of land disturbed by natural resource extraction.”2
¶20 We agree with the Appellees that MEIC raised the same legal issue in MEIC I that
it raises in the present action. We have explained that a “litigant cannot avoid preclusion
simply by reframing the same issues or raising novel contentions.” Baltrusch, ¶ 25. If
this were the case, “a party could escape the preclusive effect of an adverse judgment” in
every case by using different language to describe the same argument. B&B Hardware,
Inc. v. Hargis Indus., __U.S.__, 135 S. Ct. 1293, 1308 (2015). While MEIC couches its
argument on appeal in terms of the “most effective” reclamation alternative, MEIC stated
in its complaint in the present action, as it did in MEIC I, that Article IX, Section 2 of the
Montana Constitution requires “full reclamation.” Similarly, in both complaints, MEIC
sought a legal declaration that to the extent the MMRA “allows less than full
reclamation” the MMRA is unconstitutional. Further, MEIC argues on appeal that the
DEQ cannot constitutionally choose a reclamation alternative that “reclaims less land”
than another alternative. Although MEIC’s argument can certainly be stated in any
number of different ways, the constitutional standard MEIC advocated for in MEIC I and
2
The parties use the term “restoration” to denote full reclamation.
14
the constitutional standard that it advocates for in the present litigation are
indistinguishable.
¶21 Moreover, even if we were to accept MEIC’s assertion that it is offering a
different constitutional standard than it offered in MEIC I, MEIC would still be precluded
from advancing it because MEIC could have raised that different legal theory in the
former litigation. We have explained that merely because a litigant advances a new
contention in a second action, it does not necessarily follow that the new contention is
exempt from preclusion. Haines Pipeline Constr. v. Mont. Power Co., 265 Mont. 282,
288-89, 876 P.2d 632, 636-37 (1994). “‘If a new legal theory or factual assertion put
forward in the second action is related to the subject-matter and relevant to the issues that
were litigated and adjudicated previously, so that it could have been raised, the judgment
is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise
urged.’” McDaniel, ¶ 33 (quoting Haines, 265 Mont. at 288-89, 876 P.2d at 636-37)
(emphasis in original).
¶22 In MEIC I, MEIC pressed the District Court to decide the constitutional standard
under Article IX, Section 2 of the Montana Constitution. MEIC could have pleaded or
otherwise urged the District Court to adopt whatever constitutional standard it believed to
be appropriate. It elected to argue that the Constitution requires disturbed land to be
restored to its previous condition. The District Court disagreed with MEIC, holding
instead that the Constitution requires that the statutory scheme achieve “reasonable”
reclamation. MEIC now attempts to challenge that determination in a separate action
15
involving the same parties, contending that the “Constitution does not direct the
legislature to enact ‘reasonable’ standards,” and that such an interpretation is “hollow”
and a “dead letter.” MEIC had an opportunity to make this argument and challenge the
District Court’s determination by appealing the court’s decision in MEIC I to this Court.
For whatever reason, MEIC did not do so. Issue preclusion now prevents MEIC from
raising the same issue with respect to the North Area Pit that it raised, and lost, with
respect to the Mineral Hill Pit. In MEIC I, the District Court conclusively addressed the
constitutional standard under Article IX, Section 2 of the Montana Constitution.
¶23 We next turn to MEIC’s argument that it can avoid issue preclusion because of the
factual differences between the Mineral Hill Pit and the North Area Pit. MEIC asserts
that the “two pits are materially different,” and that these factual differences have legal
significance, thereby preventing the issues from being the same. We disagree.
¶24 Issue preclusion applies with equal force to both issues of law and issues of fact.
In cases involving the same issues of law, issue preclusion is appropriate when the factual
differences between the two actions “are of no legal significance whatever in resolving
the issue presented in both cases.” United States v. Stauffer Chem. Co., 464 U.S. 165,
174, 104 S. Ct. 575, 579 (1984). Accord Pacific Power & Light Co. v. Mont. Dep’t of
Revenue, 246 Mont. 398, 404, 804 P.2d 397, 401 (1991). The United States Supreme
Court’s decision in Stauffer and this Court’s decision in Pacific Power provide clear
illustrations of the category of cases, in which the present case falls, where the party
opposing the preclusive effect of collateral estoppel sought to relitigate legal issues in
16
which the different facts of the underlying litigation and the former litigation were not
legally significant in determining the issue presented.
¶25 In Stauffer, the United States Supreme Court addressed whether the
Environmental Protection Agency (EPA) could relitigate the issue of whether private
contractors are “authorized representatives” as that term is used in the Clean Air Act.
Stauffer, 464 U.S. at 166, 104 S. Ct. at 576. In previous litigation, Stauffer Chemical Co.
v. EPA, 647 F.2d 1075 (10th Cir. 1981) (hereinafter, Stauffer I), private contractors from
the EPA attempted to conduct an inspection of one of Stauffer’s phosphate plants in
Wyoming, but Stauffer refused to allow them to enter the plant. In Stauffer I, Stauffer
argued that he did not need to permit the contractors entry because private contractors are
not “authorized representatives” under the Clean Air Act for purposes of conducting
inspections. The district court agreed, and the Tenth Circuit Court of Appeals affirmed.
In a subsequent action filed in the United States District Court for the Middle District of
Tennessee, Stauffer Chemical Co., v. EPA, 511 F. Supp. 744 (M.D. Tenn. 1981)
(hereinafter, Stauffer II), the EPA attempted to inspect one of Stauffer’s chemical plants
in Tennessee using different private contractors than the ones used in Stauffer I. Stauffer
again refused to allow entry to the private contractors and argued that the EPA should be
estopped from relitigating the issue of whether private contractors are authorized
representatives under the Clean Air Act based on the Tenth Circuit’s decision in Stauffer
I. The Sixth Circuit agreed, holding that the EPA was collaterally estopped by Stauffer I
from relitigating the same question against Stauffer. The United States Supreme Court
17
upheld the Sixth Circuit’s decision, concluding that, while the two suits involved two
completely different occurrences at different plants located in different States, the
“authorized representative” issue was the same in Stauffer I and Stauffer II. Stauffer, 464
U.S. at 170, 104 S. Ct. at 578. The Court explained that “[a]ny factual differences
between the two cases, such as the difference in the location of the plants and the
difference in the private contracting firms involved, are of no legal significance whatever
in resolving the issue presented in both cases.” Stauffer, 464 U.S. at 172, 104 S. Ct. at
579. Thus, the Court determined the EPA was collaterally estopped from relitigating
whether private contractors are “authorized representatives” under the Clean Air Act,
despite factual differences in the plants and the particular private contractors utilized for
inspections. Stauffer, 464 U.S. at 174, 104 S. Ct. at 580.3
¶26 Similarly in Pacific Power, this Court addressed whether public utility owners
could relitigate the issue of whether beneficial use taxes on the utility owners were
unconstitutional under the Commerce Clause. Pacific Power, 246 Mont. at 404, 804 P.2d
at 401. In previous litigation, the Court had held that the beneficial use taxes were
constitutional for the year 1984. However, the utility owners argued that issue preclusion
3
MEIC contends that under the general rule of issue preclusion the facts must be “virtually
identical” in the two actions to preclude relitigation of an issue under Stauffer. MEIC misreads
Stauffer. While the United States Supreme Court did make reference to “virtually identical”
facts in Stauffer, it did so in the context of an exception to the general rule of issue preclusion
known as the “unmixed question of law” exception. In Stauffer, the Supreme Court
acknowledged that “the exception is generally recognized” but was “frank to admit uncertainty
as to its application.” Stauffer, 464 U.S. at 171, 104 S. Ct. at 579. Similarly, other courts have
recognized the “‘unmixed question of law’ exception is not easily summarized.” AMTRAK v.
Pa. PUC, 288 F.3d 519, 530 (3d Cir. 2002). Here, however, unlike the EPA in Stauffer, MEIC
has failed to develop an argument under the ill-defined exception. Thus, we decline to address
whether the “unmixed question of law” exception is applicable in this instance.
18
did not bar their suit because the present action involved different tax years, namely
1985, 1986, and 1987. Pacific Power, 246 Mont. at 404, 804 P.2d at 401. This Court
rejected the owners’ argument, concluding that the “fact that different tax years are being
challenged makes no difference” in resolving the constitutional issue presented in both
cases. Pacific Power, 246 Mont. at 404, 804 P.2d at 401. We explained:
The constitutional challenges remain the same, and it is the substance of
these challenges that have failed. The year in which they were brought has
no bearing upon their lack of success. Allowing the [utility owners] to raise
the same challenges to the same tax each subsequent tax year serves no
purpose.
Pacific Power, 246 Mont. at 404, 804 P.2d at 401 (emphasis in original). Thus, we
precluded the utility owners from relitigating the legal issue. Pacific Power, 246 Mont.
at 405, 804 P.2d at 401.
¶27 The present case fits comfortably into the framework provided by Stauffer and
Pacific Power. Here, like the parties opposing issue preclusion in Stauffer and Pacific
Power, MEIC seeks to relitigate a legal issue in which any factual differences between
the former and the current action are of no legal significance whatsoever in resolving the
legal issue presented in both cases. Just as the difference in the contracting firms and
location of the plants in Stauffer and the difference in the year in which the constitutional
challenge was brought in Pacific Power were irrelevant to the issues presented in those
cases, the difference in the physical characteristics of the North Area Pit and the Mineral
Hill Pit are wholly immaterial to the legal issue presented here. MEIC does not, nor
could it, seriously contend that the constitutional issue—whether Article IX, Section 2 of
19
the Montana Constitution requires land disturbed by the taking of natural resources to be
restored to its previous condition—turns on geography, location, size, or any other
physical characteristic of the two pits. Indeed, in making its constitutional argument,
MEIC relies on the language of Article IX, Section 2 of the Montana Constitution, the
jurisprudence of this Court, and the transcripts from the 1972 Constitutional Convention,
not the physical characteristics of the two pits. Like the utility owners’ challenge in
Pacific Power, MEIC’s constitutional argument remains the same, and any factual
distinctions are without legal significance. The District Court has already “squarely
rejected” MEIC’s argument that the Montana Constitution requires restoration of the
ground to its previous condition. Allowing MEIC to relitigate the issue of full
reclamation would frustrate the collateral estoppel doctrine and defeat its purpose of
protecting litigants from burdensome relitigation and of promoting judicial economy.
¶28 In sum, MEIC pressed the District Court in MEIC I to decide the constitutional
standard by which legislative actions are measured under Article IX, Section 2 of the
Montana Constitution. The District Court did so. Because that issue was specifically
raised, litigated, and decided by the District Court in the former litigation in MEIC I in
which the DEQ and GSM were parties, MEIC is barred by the doctrine of issue
preclusion from raising the issue again for consideration by the District Court. We hold
that the District Court did not err by precluding MEIC from relitigating whether Article
IX, Section 2 of the Montana Constitution requires land disturbed by the taking of natural
resources to be fully reclaimed to its previous condition.
20
¶29 2. Whether MEIC is precluded from relitigating the issue of whether the Montana
Metal Mine Reclamation Act requires land disturbed by the taking of natural resources to
be fully reclaimed to its previous condition.
¶30 MEIC is similarly precluded from relitigating whether the MMRA requires land
disturbed by the taking of natural resources to be fully reclaimed to its previous
condition. First, our rationale for precluding MEIC from raising its constitutional
challenge applies with equal force to MEIC’s statutory argument. In MEIC I, the District
Court considered and rejected the same legal argument that MEIC makes here—that the
MMRA requires the DEQ to choose the most effective reclamation alternative because
Article IX, Section 2 of Montana Constitution requires as much. Similarly, here, MEIC
maintains that the factual differences between the Mineral Hill Pit and the North Area Pit
create different issues. As explained above, any factual variations between the two pits
are legally insignificant to resolving the issue presented in both cases—whether the
MMRA requires land disturbed by the taking of natural resources to be fully reclaimed to
its previous condition.
¶31 Second, even if MEIC had not advanced its statutory argument in MEIC I, our
conclusion with respect to Issue 1 precludes review of this issue as well. Issue preclusion
operates to preclude a party from advancing an issue in a current action even though the
party did not advance that issue in the former “when the issues are so intertwined that to
decide the issue before it, the District Court would have to rehear the precise issue
previously decided.” Baltrusch, ¶ 25 (quoting Martelli v. Anaconda-Deer Lodge County,
258 Mont. 166, 169, 852 P.2d 579, 581 (1993)) (ellipsis, internal quotation marks, and
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brackets omitted). Here, MEIC’s statutory argument is entirely premised on its
constitutional argument and the two arguments are so intertwined that the District Court
would have to revisit the constitutional issue to decide the statutory issue. Because we
affirmed the District Court’s conclusion to preclude MEIC from relitigating the
constitutional standard, MEIC’s statutory argument is necessarily precluded as well. We
hold that the District Court did not err by precluding MEIC from relitigating whether the
MMRA requires land disturbed by the taking of natural resources to be fully reclaimed to
its previous condition. Our conclusion on this Issue, however, does not preclude MEIC
from challenging the DEQ’s application of the MMRA’s statutory criteria to the facts of
the North Area Pit.
¶32 3. Whether the DEQ made a reasoned decision in selecting the Agency-Modified
Alternative under the criteria set forth in the Montana Metal Mine Reclamation Act.
¶33 MEIC argues that the DEQ’s decision to select the Agency-Modified Alternative
is unsupported by the evidence under the criteria set forth in the MMRA. Pursuant to
§ 82-4-336(9)(b), MCA, of the MMRA “a reclamation plan must provide sufficient
reclamation to a condition: (i) of stability structurally competent to withstand geologic
and climatic conditions without significant failure that would be a threat to public safety
and the environment; (ii) that affords some utility to humans or the environment; (iii) that
mitigates postreclamation visual contrasts between reclamation lands and adjacent lands;
and (iv) that mitigates or prevents undesirable offsite environmental impacts.”
¶34 In both the final EIS and the ROD, the DEQ extensively analyzed the
Agency-Modified Alternative in light of the MMRA criteria set forth in § 82-4-336(9)(b),
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MCA. Beginning with the first condition, the DEQ concluded that “[w]hile the North
Area Pit Backfill Alternative would provide better structural stability, no highwall
failures would occur under any of the alternatives that would threaten public safety or the
environment outside the pit.” To ensure public safety within the North Area Pit, the DEQ
required that GSM install fencing and monitor ground-movement after closure of the
mine under the Agency-Modified Alternative. The DEQ concluded that with these
precautionary measures “[m]inor raveling and small wall failures could occur over time
but would not present a risk to human health or the environment.” To better afford utility
to the environment, the DEQ required GSM to place growth media on the pit benches to
support establishment of vegetation and to plant tree seedlings on the berms and benches.
The revegetated portions of the North Area Pit will total approximately 22 acres, which
the DEQ concluded will provide wildlife habitat for a number of animal species,
including the Black-tailed Prairie Dog, the Fringed Myotis, and the Hoary Bat. To
mitigate postreclamation visual contrasts between reclaimed lands and adjacent lands, the
DEQ required GSM to plant shrubs and trees on accessible benches in the highwalls that
are visible from outside of the North Area Pit. The DEQ concluded that the “planting
and seeding of benches will reduce the visual contrast between the highwall areas and
adjacent undisturbed topography.”
¶35 Lastly, the DEQ addressed the potential for undesirable offsite impacts,
specifically the potential impact associated with contaminated groundwater. The DEQ
concluded that with the installation of an underground sump pump the Agency-Modified
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Alternative “provided adequate assurance that pollution of the Jefferson River alluvial
aquifer and surface water in the Jefferson River Slough in violation of water quality laws
would not occur.” The DEQ found that “if the external dewatering wells were to fail,
they could be replaced before the water table rebounds and impacted water begins
discharging from the North Area Pit.” The DEQ found that “[g]iven the capacity of the
underground sump,” the flow of impacted groundwater “will not exceed the design
capacity of the sump.” The DEQ explained that under the Agency-Modified Alternative
even if the external dewatering wells were to fail “no impacts to groundwater or surface
water outside the pit are anticipated because impacted groundwater would be captured by
the underground sump and not flow from the pit.” Thus, the DEQ concluded that the
Agency-Modified Alternative provided better assurances against ground water
contamination than the Backfill Alternative.
¶36 The DEQ’s decision was based on consideration of the relevant factors set forth in
§ 82-4-336(9)(b), MCA, of the MMRA, and was not arbitrary, capricious, unlawful, or
unsupported by substantial evidence. Therefore, we cannot conclude that the DEQ made
a clear error of judgment, and we are satisfied that the DEQ made a reasoned decision in
selecting the Agency-Modified Alternative. The District Court did not err by upholding
the DEQ’s decision.
¶37 Affirmed.
/S/ LAURIE McKINNON
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We concur:
/S/ MIKE McGRATH
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ BETH BAKER
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