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 222BITTERROOTERS 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.”
5
¶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.
7
¶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:
9
(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).
14
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.
17
¶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.
203d 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