Park Co. Environmental v. DEQ ( 2020 )

OR!CNAL 08/13/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 19-0492
DA 19-0492
PARK COUNTY ENVIRONMENTAL COUNCIL
and GREATER YELLOWSTONE COALITION,
Plaintiffs and Appellees,
v.
MONTANA DEPARTMENT OF ENVIRONMENTAL
QUALITY and LUCKY MINERALS,INC., ORDER
Defendants and Appellants,
and PLED
STATE OF MONTANA,by and through the AUG 1 3 2020
Office of the Attorney General, k I• C-1 wvood
Supreroe Court
State of Montana
Intervenor and Appellant.
Pursuant to the Internal Operating Rules of this Court, this cause is reclassified for
oral argument before the Court sitting en banc and is hereby set for argument on
Wednesday, September 30, 2020, at 9:30 a.m. in the Courtroom of the Montana Supreme
Court, Mazurek Justice Building, Helena, Montana. Any counsel wishing to participate in
the argument remotely shall contact the Clerk of Court to make arrangements.
IT IS FURTHER ORDERED that pursuant to M. R. App. P. 17(3), oral argument
times in this cause number shall be 40 minutes for the Appellants and the Intervenor and
30 rninutes for the Appellee.
The Court has considered all briefing in this matter, including the supplemental
briefs the parties submitted at the Court's request. DEQ acknowledges in its briefing that
a limited remand is appropriate for the agency to conduct a supplemental environmental
review regarding (1) the environmental impacts on wildlife resulting from improvements
to the existing access road, and (2)the rnitigation plan for containing artesian flow during
the exploratory drilling process. Whether the Court affirms or reverses the other points at
issue, the case likely will be returned to the agency for additional review, thus bringing
focus to the question whether Lucky Minerals should be allowed to proceed with
exploration pending completion ofthat review process, which the District Court enjoined.
The Attorney General argues in part that the Court should avoid the constitutional question
presented on appeal because there are enforcement remedies available under substantive
environmental statutes, most notably the Metal Mine Reclamation Act, citing §§ 82-4-349
and -354, MCA. In addition to other issues raised in their briefs, counsel should be
prepared to address whether an alleged failure to comply with MEPA requirements could
be redressed through a challenge to the exploration license under the MMRA,the Water
Quality Act, "or some other substantive environmental law," as the Attorney General
suggests.
The Clerk is directed to provide a copy hereof to all counsel of record and to the
Honorable Brenda Gilbert, District Judge.
DATED this 12th day of August, 2020.
For the Court,
By
Chief Justice
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