Brief in Support of Plaintiffs' Motion for Summary Judgement1
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JACK R. TUHOLSKE
Attorney at Law P.C.
234 East Pine Street
P.O. Box 7458
Missoula, Montana 59807
Telephone: (406) 721-6986
Attorney for the Plaintiffs
MONTANA FIRST JUDICIAL DISTRICT, LEWIS AND CLARK COUNTY
MONTANA ENVIRONMENTAL
.INFORMATION CENTER INC.,
CITIZENS FOR A BETTER FLATHEAD
INC.
PLAINTIFFS,
VS.
MONTANA DEPARTMENT OF
NATURAL RESOURCES AND
CONSERVATION, MONTANA BOARD
OF LAND COMMISSIONERS,
DEFENDANTS.
Cause No. ADV-2000-396
BREIF IN SUPPORT OF PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT
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The State of Montana, through the Department of Natural Resources and Conservation
(the Department) and the Montana Board of Land Commissioners (the Board), proposes to
develop a section of state school trust land (Section 36) adjacent to the northern city limits of
Kalispell. In 1998, the Department began preparation of a comprehensive land use plan
(Neighborhood Plan) that contemplates commercial. ie6iderhial, and recreational development of
the entire section, which is currently leased for agricultural use. The Department and the Board
originally recognized their responsibility under the Montana Environmental Policy Act (MEPA)
to conduct an environmental analysis of the entire project before approving the Neighborhood
Plan and a Memorandum of Understanding (MOU) relating to the development of Section 36.
The Department later changed its position and now intends to prepare a MEPA analysis only on
individual lease proposals; no comprehensive MEPA document will be prepared for Section 36.
The Montana Environmental Information Center and Citizens for a Better Flathead
contend that the Department's piecemeal approach violates MEPA, which requires
comprehensive environmental review of the entire project. The Department's Neighborhood
Plan and MOU represent a specific proposal that triggers MEPA review. The Neighborhood
Plan is a concrete proposal for action that will control all subsequent development. It has been
relied upon by other agencies as the master plan for Section 36. The direct, indirect, and
cumulative environmental impacts of commercial and residential development of land previously
devoted to agricultural use are likely to be significant. The proposed change in land use on
Section 36 from agricultural to commercial and residential will affect traffic, noise and air
pollution, open space, local businesses, as well as commercial and residential growth patterns
throughout the Kalispell area. Development of Section 36 is likely to have significant social and
economic consequences for the Kalispell area. Those impacts and consequences were not
analyzed or disclosed to the public before the Neighborhood Plan and MOU were approved.
The Department failed to consider alternatives to the Neighborhood Plan, also required
by MEPA. Unless other alternatives are considered prior to initiating the development of Section
Plaintiffs' Brief in Support of
Summary Judgment 1
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36 proposed by the Neighborhood Plan and the MOU, the State cannot insure that it is managing
this school trust land for the "highest and best use," and developing it in such a fashion that it
benefits the economy of the local community as well as the State as a whole, as required by § 77-
1-601 M.C.A. (1999).
MEPA requires that an�nvironmental Impact Statement (EIS) e prepared now, before
leases are offered pursuant to the Neighborhooa rian. A MEPA review of the entire proposal is
the only means to insure that the totality of these impacts are examined before development goes
forward. The Department and the Board must be held to their previous decision to comply with
MEPA on the entire section before entertaining lease proposals on individual tracts.
A. Background on Section 36
The land that is subject to the proposed development is generally located within Section
36, Township 29N, Range 22W, P.M.M., on the north side of Kalispell. The southeast quarter of
the Section is within the city limits of Kalispell. All but approximately 20 acres of Section 36 is
state-owned and managed as school trust land. Exhibit 1, Neighborhood Plan, p. 1.
Section 36 is bounded on the east by U.S. Highway 93 (the major north/south arterial
through Kalispell and Flathead County), on the south by Four Mile Drive, on the west by
Stillwater Road, and on the north by West Reserve Drive. Plans for a major future potential
arterial, the Kalispell by-pass, indicate the by-pass may cross portions of Section 36. Exhibit 1,
P-1•
Section 36, with the exception of a portion that is currently leased for an athletic field,
and a small portion also used for a Department office, is leased for the farming of cereal grains.
In the spring of 1997, the Board and the Department leased a portion of Section 36 for a
recreational athletic field complex. The Department prepared a checklist Environmental
Assessment (EA) addressing the impacts of leasing those particular acres for an athletic complex.
The checklist EA, approved on March 17,1997 is the only MEPA document the Department has
prepared and approved to date for Section 36. Exhibit 2 Final Checklist Environmental
Plaintiffs' Brief in Support of
Summary Judgment
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Assessment for Kalispell Community Youth Athletic Complex.
This land is mostly open space and not currently the subject of any commercial or
residential development. However, the property is within Kalispell's northerly growth pattern
and the Department believes development of the land and expansion of the city limits is essential
to minimize leap frog development beyond this property to less desirable locations. Exhibit 1,12.
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B. The Section 36 Neighborhood Plan
In May, 1998, the Department hired a consultant to initiate a planning process for the
development of Section 36 for commercial, business and residential purposes. This type of
development was determined to be appropriate because Kalispell had grown substantially over
the last decade, and Section 36 was largely surrounded by urban and suburban development. As
part of that process, several public meetings were held in Kalispell during the summer and fall of
1998.
On behalf of the Department, on February 8, 1999, Montana Planning Consultants of
Kalispell, Montana completed a document entitled "DNRC Neighborhood Plan Section 36
Kalispell, Montana: a proposed amendment to the Kalispell City -County Master Plan." This
document is referred to as the Neighborhood Plan in this hrif f 711a „tan was presented to the
Flathead County Planning Board on April 20, 1999. Exhibit 1, pp. i, 1.
The Neighborhood Plan sets out the range of permissible uses for Section 36. The
Neighborhood Plan recognizes the need for a "land use plan for the property." The
Neighborhood Plan recognizes that the type of development allowed for Section 36 will affect
growth and transportation in the greater Kalispell area. Exhibit 1, p. 1.
In the Neighborhood Plan, the Department outlined four different zones of development
within Section 36 that it labeled land use "pods." The four pods are: 1. Mixed Commercial (to
provide commercial uses at an urban scale density); 2. Mixed professional (to develop office
orientated commercial at a "suburban" density); 3. Mixed residential (residential and other
compatible uses); 4. Sports field (athletic field complex). For each pod, the range of potential
Plaintiffs' Brief in Support of
Summary Judgment
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uses and development parameters are explicitly specified in the Neighborhood Plan. Exhibit 1,
pp.4-15.
The Neighborhood Plan is quite precise in defining the parameters of development for
each pod. For example the Mixed Commercial Pod identifies the appropriate location for
commercial uses. Two controlled accesses on to U.S. 93 are provided. Provisions for lighting,
signage, landscaping and exterior siding are listed. Special requirements are imposed for
buildings greater than 60,000 square feet. Exhibit 1, pp. 7-8. The types of commercial
development allowed are denoted in Exhibit A-2 of the Plan. This level of specificity is repeated
for each of the pods.
The Neighborhood Plan established a number of specific parameters that control and
dictate appropriate types of development on the entire section. The purpose of the Neighborhood
Plan was to develop a plan for a compatible mix of land uses within Section 36 and with that of
the entire surrounding area, and to identify an integrated internal transportation system to link the
land use pods and minimize approaches onto public roads. Exhibit 1, pp. 14-15. The Plan also
provides a section entitled "Implementation" that explains how the Plan serves as a "blueprint" to
control development throughout Section 36. Ten specific policies are set forth that apply to all
development. Exhibit 1, pp. 16-18. A map is attached to the Neighborhood Plan to depict the
precise boundaries of each pod and the location of some of the contemplated infrastructure.
Exhibit 1 attached exhibit A.
The Plan does not contain any analysis of the environmental consequences of
implementing the four pods of development and associated infrastructure, though it does
acknowledge that the area is changing rapidly and that Plan changes Section 36's current use as
agricultural land. Exhibit 1, pp.1-2. The Neighborhood Plan does not present or analyze
alternative land uses or scenarios for development of Section 36, nor does it analyze the
consequences of taking no action with respect to Section 36. Plaintiffs have noted and discussed
the failure of the Department to address the impacts of the Neighborhood Plan and alternatives to
the Plan. Affidavit of Mayre Flowers
Plaintiffs' Brief in Support of
Summary Judgment
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C. The Memorandum of Understanding
At the September 20, 1999, meeting of the Board, the Neighborhood Plan and the
development of Section 36 were discussed as an agenda item. The Department requested the
Board's approval to proceed with the adoption of local zoning ordinance and development of a
Memorandum of Understanding (MOU) with Flathead County and the city of Kalispell with
respect to the development of Section 36. Exhibit 3, Minutes of Regular Meeting of Board of
I Land Commissioners September 20, 1999,12.3.
At that same meeting, Clive Rooney, an employee and representative of the Department,
stated on the record that "MEPA requirements will be completed first as an umbrella document
to the entire plan and then specific to any state action." At that same meeting Governor Racicot
asked if the Department intends to have full scale MEPA analysis of the entire development, not
just on a lease by lease basis before it proceeds. In response to that question, Mr. Rooney said "It
is the Department's intention to do MEPA analysis on the entirety of the project which will be
conducted before the MOU is signed." Mr. Rooney further stated that the plan is to "go forward
with the intention that this is the plan for the section and analyze those impacts." Exhibit 3, pp.
3, 6. These statements echoed an earlier commitment made to the public regarding completion
of MEPA analysis for the overall plan. Exhibit 8, Response to Comments: A Handout for the
Public Meetiniz held on 12/14/98, Summit, Kalispell, p.3.
At the September 201h meeting, Governor Racicot also made a motion to direct the
Department with the preparation and drafting of a MOU that lays out a broad framework to
address the issues of a master plan, zoning, subdivision review, MEPA and the simultaneous
suspension of any further movement until such time the MOU has been approved by the local
governments. The Board approved the motion unanimously. Exhibit 3, p. 7.
On or about April 19, 2000, the Department, Flathead County and the City of Kalispell
entered into a MOU regarding the development of Section 36. The MOU stated that the
Department had prepared a neighborhood plan which was adopted as an amendment to the city
county master plan by the Board of Commissioners of Flathead County on May 20, 1999 and by
Plaintiffs' Brief in Support of
Sununary Judgment
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the city of Kalispell on June 7, 1999: The MOU further stated that the Department seeks to
permit development of Section 36 in accordance with the Neighborhood Plan. Exhibit 4,
Minutes of Regular Meeting of Board of Land Commissioners Mav 15, 2000, and Exhibit
5, MOU p.1.
Upon motion by Governor Racicot, the Board unanimously approved the MOU at its
regular meeting on May 15, 2000. At that meeting Mr. Rooney stated that the Department had
changed its position and would not do MEPA on the entire project. Mr. Rooney stated that the
Department would do a statewide programmatic EIS for the entirety of state land development
projects which obviated the need for "a similar broad brush document for this section." Exhibit
4, p. 5.
At the time of the signing and approval of the MOU, neither the Department nor the
Board had prepared any MEPA document examining the direct, indirect and cumulative impacts
of leasing Section 36 for residential and commercial development as set forth in the
Neighborhood Plan. The Department did not examine alternatives to the proposed
Neighborhood Plan or MOU, nor did the Department examine a no action, alternative of not
leasing all or part of Section 36 for development.
D. Other Section 36 Documents
Since the approval of the MOU and Neighborhood Plan, the Department has prepared a
Special Lease Proposal, and the City of Kalispell has issued a plan for the extension of utilities to
Section 36. Exhibit 6, Special Lease Proposal; and Exhibit 7, City of Kalispell Utility Extension
Project to the North Side of Section 36, May 2000 (UEP).
The Special Lease Proposal outlines the limitations, requirements and dates for lease
proposals to be submitted to the Department for the development of Section 36. This document
has an addendum containing the Neighborhood Plan and MOU and is intended to provide
potential developers with all the information required to make a successful lease proposal for
tracts within Section 36. Exhibit 6, addendum B. The Special Lease Proposal also states that
development of Section 36 is guided by the adopted Neighborhood Plan and MOU, and that
Plaintiffs' Brief in Support of
Summary Judgment
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MEPA review will be conducted on each selected lease proposal and various alternatives which
achieve the same objectives as the selected lease proposal. Exhibit 6, p. 3.
The City of Kalispell has prepared a comprehensive document based largely on the
Neighborhood Plan, that addresses infrastructure needs as�gciated with the Plan. That document
is known as the Utility Extension Project (TE "I he uh.V states that the Neighborhood Plan is
the controlling proposal for the development of Section 36. The UEP sets out, among other
things, designs, development priorities, engineering and financial reports, and an implementation
schedule for the extension of the City sewer and water systems, all based on the Neighborhood
Plan. For example, the UEP explains that the "plan to extend utilities to service development in
Section 36 and adjacent development has been outlined in DNRC's Neighborhood Plan." Exhibit
7, p. 3.' The UEP discusses a host of environmental impacts associated with the development
Section 36, such as water quality impacts, Exhibit 7, attachment 3_, pp.l-3, the tntnl lack of
existing wastewater facilities, Id. at 6, economic issues related t6 a 675,000 s4are foot buildin --
proposal already under consideration, Id. at 16, definition, costs acid impacts of infrastructure
.needs to serve the POD's outlined in the Neighborhood Plan, Exhibit 7, attachment 3(a).
One of the most revealing documents in the UEP is the Uniform Environmental
Checklist. This document -is not a MEPA document. It does not analyze and disclose
environmental impacts, it is a list of possible types of impacts. The Checklist identifies 12
separate impacts in a section entitled "Physical Environment" and 29 separate categories of
impacts on the "Human Population." Exhibit 7, pp. 65-69. The Checklist cites as possible
adverse impacts those on hazardous facilities, air quality and loss of agricultural lands
("Development will result in the loss of 600 acres of farm land..."). The Checklist also cites "no
impact" for a host of parameters, though absolutely no analysis is provided to back these
assertions. While the Checklist is not a MEPA document, and Plaintiffs do not agree with the
assertions of "no impacts" contained in it, it does provide evidence that the Neighborhood Plan,
'Because the UEP is several hundred pages long, Plaintiffs have included only a portion of the UEP as part
of Exhibit 7 and the page references cited here correspond to the actual document pages.
Plaintiffs' Brief in Support of
Summary Judgment
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and the development that is already being contemplated under it, will have impacts to the
I environment.
These documents also add further specificity to the planned development of Section 36,
and demonstrate the feasibility of conducting the required environmental analysis at this point.
However, none of these documents contain the necessary analysis nor do they address
alternatives to the proposed development.
14 " § 0 F--Vl*-OLot VIaLI1-1
A. Background of the Montana Environmental Policy Act
Because of profound concern over the manner in which the federal government affected
our nation's environmental quality, Congress passed the National Environmental Policy Act, or
NEPA, in 1969. NEPA was designed to give "all agencies a mandate, a responsibility, and a
meaningful tool to insure that the quality of America's future environment is as good or better
than today's." 115 Cong. Rec. 29055 through 29056 (1969) (remarks of Senator Jackson). That
tool -- preparation of an environmental impact statement -- requires the government to assess
impacts and inform the public about those impacts before environmentally destructive activities
occur.
The Montana legislature had similar intentions in enacting MEPA, which was adopted
"whole cloth" from NEPA just two years later. MEPA's profound purpose is boldly stated in the
Act:
to promote efforts which will prevent or eliminate damage to the environment and
biosphere and stimulate the health and welfare of man, to enrich the ecological
systems and natural resources important to the state...
75-1-102, M.C.A. (1999). By enacting MEPA, the Montana legislature declared that "it is the
continuing policy of the state of Montana ... to use all practical means and measures ... to create
and maintain conditions under which man and nature can coexist in productive harmony." 75-1-
103(1), M.C.A. (1999). The importance of MEPA is further underscored by its relationship to
Montana's unique Constitutional provisions for environmental protection. See Article II Sec. 3;
Article IX Sec. 1, Mont. Const. (1972).
Plaintiffs' Brief in Support of
Summary Judgment 8
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Under MEPA, the duty of environmental protection is carried forth in part through
preparation of a detailed statement known as an Environmental Impact Statement (EIS). This
duty is non -discretionary; an EIS must be prepared for projects, programs and other state actions
that significantly affect the environment. 75-1-201(1)(b)(iii), M.C.A. (1999). The legislature
directed state agencies to comply with this mandate "to the fullest extent possible." 75-1-
201(1), M.C.A. (1999) (emphasis added).
The Department has enacted detailed regulations to guide its fulfillment of MEPA's
obligations. See generally A.R.M. 36.2.521 et. seq. When the agency believes the
environmental consequences of a project are not significant, a less detailed Environmental
Assessment (EA) may be prepared instead of an EIS. Whether preparing an EA or an EIS, the
agency "shall determine the significance of impacts associated with the proposed action."
A.R.M. 36.2.524(1) (emphasis added); see generally A.R.M. 36.2.523 (2)-(4).
MEPA requires strict compliance with the agency's procedural duties to thoroughly assess
and disclose the significance of environmental impacts resulting from government action.
Ravalli County Fish and Game Assoc., Inc. v. Montana Dept. of State Lands, 273 Mont. 371,
380, 903 P.2d 1362, 1367-68 (1995); Montana Wilderness Ass'n v. Dept. of Natural Resources,
200 Mont. 11, 21, 648 P.2d 734, 740 (1982); see also Calvert Cliffs' Coord. Com. v. A.E.C., 449
F.2d 1109, 1115 (D.C. Cir. 1971). As discussed below, the Department failed to uphold these
procedural duties in the instant case.
B. Judicial Review Under Montana Environmental Policy Act
The proper standard of judicial review to be applied by a trial court under MEPA "is
whether the record establishes that the agency acted arbitrarily, capriciously, or unlawfully."
North Fork Preservation Ass'n v. Dept. of State Lands, 238 Mont. 451, 458-59, 778 P.2d 8621
867 (1989). Under the North Fork standard, MEPA review consists of a two part test. First, the
agency's actions are reviewed for compliance with the procedural requisites set forth in the
Department's MEPA regulations. A.R.M. 36.2.521 et. seq. This review is performed under. `the
`unlawful' portion" of the standard of review. North Fork, 238 Mont. at 459, 778 P.2d at 867.
Plaintiffs' Brief in Support of
Summary Judgment
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Additionally, omission of cumulative impacts analysis is reviewed under "the `unlawful'
portion" of the standard. Friends of the Wild Swan v. Dept. of Natural Resources and
Conservation, 2000 MT 209, ¶ 29, P.3d _. Second, under the "arbitrary or capricious"
portion of the standard of review, the court's inquiry is whether "required analyses are missing,"
whether the analyses given are adequate, or whether the finding of no significant effect is
arbitrary. North Fork, 238 Mont. at 464, 778 P.2d at 871.
Judicial review of NEPA at the federal level has been substantial, and those cases provide
further guidance. Because MEPA is modeled after NEPA, it is appropriate to look to the federal
interpretation of NEPA, and federal case law is therefore persuasive authority. Ravalli County,
273 Mont. at 377, 903 P.2d at 1366 (citing Kadillak v. Anaconda Co., 184 Mont.127, 137, 602
P.2d 147, 153 (1979)).
Granted that administrative agencies are entitled a measure of deference in their decision
making, under NEPA such deference is appropriate only when "the agency's judgement is fully
informed and well considered." LaFlamme v. F.E.R.C., 842 F.2d 1063, 1069 (9th Cir.. 1988).
Judicial review under the arbitrary and capricious standard does not shield the action from a
"thorough, probing, in-depth review." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
415 (1971). Furthermore, federal courts have recognized that "the less deferential standard of
`reasonableness' applies to threshold agency decisions that certain activities are not subject to
NEPA's procedures." Alaska Wilderness Recreation and Tourism v. Morrison, 60 F.3d 647 651
(9`h Cir. 1995). An agency decision not to prepare an EIS is unreasonable if there are substantial
questions as to whether a proposed action may have a significant effect on the human
environment. Save the Yaak Com. v. Block, 840 F.2d 714, 717 (9`h Cir. 1988) (citing Found. for
North Am. Wild Sheep v. U.S. Dept. of Agriculture, 681 F.2d 1172, 1178).
In the instant case, the Department and the Board misinterpreted the rigorous obligations
imposed by MEPA, and their failure to perform the environmental review, analyze cumulative
impacts or consider alternatives as mandated by MEPA is unreasonable and illegal. Accordingly
the proper relief to be granted is to remand the matter to the agency for preparation of an EIS.
Plaintiffs' Brief in Support of
Summary Judgment
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Ravalli County, 273 Mont. at 380, 903 P.2d at 1368 (citing Sierra Club v. U.S. Forest Service,
843 F.2d 1190 (9`h Cir. 1988)).
C. The Department Violated MEPA when it Approved the Section 36 Neighborhood
Plan and MOU Without Preparing an EIS
The issue before the Court is whether the Neighborhood Plan and MOU represent a
proposal for action by the Department that has ripened to the point of requiring analysis under
MEPA. The plain language of MEPA, its regulations and pertinent case law answer that
question in the affirmative: the De ment must prepare an EIS addressing the section -wide and
community -wide impacts o implementing e Neighborhood Plan before proceeding with site
specific leases.
The test for determining whether compliance with MEPA is required in a given situation
is set forth in the statute: if a state action causes significant environmental impacts, then a
"detailed statement" (now known as an environmental impact statement) is required. 75-1-201
(1)(b)(iii) M.C.A. (1999). The Department's MEPA regulations also require that the agency
prepare an EIS whenever, based on the criteria in A.R.M. 36.2.524, the proposed action is a
major action of state government significantly affecting the quality of the human environment.
A.R.M. 36.2.523 (1)(b).
The Department's MEPA regulations define "action" as "a project, program or activity
directly undertaken by the agency ..." A.K.M. 36.2.522 (6�*)The plain language of this regulation
covers the Neighborhood Plan because it was directly undertaken by the Department and
qualifies as a program or project.
Numerous statements within the Neighborhood Plan demonstrate that it represents a
concrete plan of action to control development throughout Section 36:
Not only does the plan involve state lands in state ownership, but the plan also
anticipates a long term development scenario... Integral components of the plan
include identification of land use pods, phasing of development and performance
standards for development.
Exhibit 1, p i.
The goal of the Neighborhood Plan is to "provide for a systematic and logical
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Summary Judgment 11
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development pattern by considering phasing and priority of development between land use pods
and within land use pods." Id. at 4. Specific requirements to control the development of the four
"pods" within Section 36 are enumerated in detail throughout the Neighborhood Plan.. All
subsequent decisions must be compatible with the Plan; that is why the Department approved the
Plan and required the MOU with the other local regulatory authorities. The Board has given its
formal approval as well. The Plan is the "blueprint" for the development of Section 36. Id. at
16. That the Plan is binding on the Department and local governmept is clear: it can be amended
only by following "the procedures set forth by state statutes as applicable to the private sector."
Id. To allay any doubts about the specificity of the Plan, the Department has included a Land
Use Map. Id. at attached exhibit A. The map depicts where each of the pods will be located,
along with additional infrastructure.
Other governmental agencies recognize the binding nature of the Neighborhood Plan and
have acted on the finality of that Plan by tailoring their plans to the development scenario
outlined in the Neighborhood Plan. For example, th UEP xplains that the "plan to extend
utilities to service development in Section 36 and adjacent development has been outlined in
DNRC's Neighborhood Plan." Exhibit 7, p. 3. In fact the City of Kalispell has already
developed preliminary plans for sewer, water and roads for Section 36 based on the PODS
adopted in the Plan. See e.g. Exhibit 7, attachment 3a, p. 1 "Engineering Analysis for Extension
of Public Infrastructure to Implement State Lands Neighborhood Plan" (emphasis added)
(Explaining that the following analysis "will define the infrastructure needs and costs of the
infrastructure to serve the development projected in the plan." (emphasis in original)).
There is no doubt that the Neighborhood Plan constitutes a proposal for action under
MEPA. While the Montana Court has not addressed this precise issue, the definition of what
constitutes a proposal for government action under NEPA has been thoroughly litigated at the
federal level. Those decisions provide overwhelming support for Plaintiffs' position here.
In the first NEPA case to reach the U.S. Supreme Court, the Court explained that
[T]he time at which the agency must prepare the final "statement" is the time at which
it makes a recommendation or report on a proposal for federal action. Where an agency
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initiates federal action by publishing a proposal and then holds hearings, the statute
would appear to require an impact statement to be included in the proposal and
considered at the hearings."
Aberdeen and Rockfish R.R. v. S.C.R.A.P., 422 U.S. 289, 320-21 (1975).
The Department will argue that the Neighborhood Plan is not a specific proposal, and that
only the issuance of site -specific leases trigger MEPA. This argument ignores the controlling
nature of the Plan and the fact that it conclusively defines the nature of development that can
occur. Rather than representing a mere contemplation for action, the Plan has crystalized into a
specific proposal that will control development for "decades." Exhibit 1, p. i. It has been
approved by the Department and the Board of Land Commissioners, as well as by leant
governments. Because the appropriate time for preparing . EIS i prior to the decision, when
the decisionmaker retains a maximum range of options, Environmental Defense Fund v. Andros,
596 F.2d 848, 852-53 (91h Cir. 1979), the Department has run afoul of MEPA by proceeding with
implementation of the Neighborhood Plan without first preparing an EIS.
Simply because the Plan does not allow an entity to begin construction does not mean
that it is exempt from MEPA. The Department was required to prepare an EIS on its State Forest
Land Management Plan, even though the Forest Plan did not authorize specific timber sales. See
Exhibit (selected portions of Forest Plan Record of Decision). The Forest Plan is much like the
Neighborhood Plan; it provides specific standards, parameters and guidelines that must be
followed in site -specific timber sales.2 That the Department prepares subsequent, site -specific
EISs for individual timber sales does not obviate the fact that the Department prepared an EIS on
the forest plan. The Forest Plan, like the Neighborhood Plan, represents a specific proposal for
action, even without ground -disturbing activities.
Since the "state action" portion of the MEPA test is satisfied in the instant case, the other
inquiry to determine if MEPA compliance is required is whether the proposed development
raises substantial questions as to whether a project may have a significant effect.
2This Court is familiar with the requirements of the Forest Plan from its decision in Skyline Sportsmen v.
Board of Land Commissioners, BDV 99-146 (Slip Op. dated Sept. 16, 1999).
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Under MEPA, a "plaintiff need not show that significant effects will in fact occur, but if
the plaintiff raises substantial questions whether a project may have a significant effect, an EIS
must be prepared." Ravalli County, 273 Mont. at 379, 903 P.2d at 1368 (holding the Department
failed to satisfy MEPA when it rendered a decision without adequately considering significant
impacts of change of grazing use from cattle to sheep through assignment of a lease) (citing
LaFlamme, 842 F.2d at 397); see also Found. For North Am. Wild Sheep, 681 F.2d at 1178.
The Neighborhood Plan recognizes that the "blueprint" for development that it creates
will have impacts on land use and development for the greater Kalispell area.
The north side of Kalispell is experiencing rapid change and development
pressures. In the absence of a comprehensive land use plan for the property,
decisions on use proposals can be made without understanding the cumulative
effects of incremental decision -making relative to such fundamental
considerations as transportation, extensions of services, and compatibility of uses.
Had a plan been in place several years ago, more informed decisions may have
been possible concerning such proposals as the city sports complex, and routing
of the west side bypass, which now greatly influence how remaining property can
be effectively utilized.
Exhibit 1, p. i.
The impacts caused by the Plan were recognized by the City of Kalispell when it
prepared the Utility Extension Project for Section 36. Exhibit 7. In fact, the consultant compiled
a Checklist of Environmental Impacts that recognizes numerous environmental parameters that
will be affected by the Neighborhood Plan. Those impacts include loss of 600 acres of farm
land, changes in demographics, housing, local employment and income, energy consumption and
so forth. Exhibit 7, pp. 65-69. All of these impacts are associated with the development scenario
sanctioned by the Neighborhood Plan, even without a specific lease being proposed.
The Neighborhood Plan will have a significant influence on growth, loss of falimanu,
transportation, recreation and attendant related impacts. That the Department or its consultants
feels the Plan will have a positive impact on those environmental parameters begs the question at
hand. Only by subjecting the Plan to the requirements of MEPA, including an analysis of
alternatives to the Neighborhood Plan, with different mixes of development (includir g no action)
can the public and the agency be assured that its consequences are fully understoo Affidavit of
r
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Mayne Flowers.
As the foregoing discussion demonstrates, the Neighborhood Plan is a proposal for
action that will have environmental consequences. Under the North Fork standard, the Court's
first inquiry is to ascertain whether the Department acted lawfully by following the procedures
set forth in MEPA and its implementing regulations. North Fork, 238 Mont. at 459. In the
instant case, the Department violated the plain language of the Act and its implementing
regulations when it failed to conduct the required MEPA analysis in order determine the
significance of the impacts of, and alternatives to, the proposed development of Section 36 prior
to approval of the Neighborhood Plan and MOU. Because the Department has not prepared a
MEPA analysis, it has not acted lawfully and therefore has violated MEPA.
The mandatory requirement to assess the significance of environmental impacts occurring
from state action is set forth in the Department's administrative rules:
In order to implement 75-1-201, MCA, the agency shall determine the
significance of impacts associated with a proposed action. This determination is
the basis of the agency's decision concerning the need to prepare an EIS and also
refers to the agency's evaluation of individual and cumulative impacts in either
EAs or EISs. The agency shall consider the following criteria indeterminin
the significance of each impact on the quality of the human environment.
36.2.524 A.R.M. (emphasis added).
The regulation lists seven criteria that are to be used in assessing the significance of each impact.
See A.R.M. 36.2.524 (a)-(g). The Department failed to conduct any assessment of individual or
cumulative impacts associated with development of Section 36, let alone address these criteria as
required.
This case has strong parallels with the Ravalli County case. In both cases, the
Department proposed a change of use on state lands without analyzing the impacts of the change
under MEPA. In Ravalli County, the court found MEPA was triggered by the Department of
State Land's awareness of the change from grazing cattle to grazing sheep. Ravalli County, 273
Mont. at 380, 903 P.2d at 1368. If anything, the facts of the instant case are more compelling,
because an entire section of state land will be converted from agricultural to commercial and
residential uses. Thus as a matter of law, if a change in use of state -leased lands significantly
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affects quality of human environment, then the State's allowing that change in use is a major
state action triggering MEPA analysis. Ravalli County, 273 Mont. at 379, 903 P.2d at 1368.
A particularly important component of MEPA, the cumulative impacts analysis, bears
mentioning. The cumulative impacts of converting section 36 from agricultural to commercial
land have never been addressed. The Montana Supreme Court upheld a recent District Court
decision finding that:
"[t]he purpose of allowing public involvement in environmental decision -
making is frustrated if an EIS does not accurately describe the impact of
proposed action in the context of past, present and future proposed action.
The average member of the public must rely on DNRC's expertise, and
therefore, DNRC must give sufficient information so that the public can
make a meaningful evaluation of the proposed action. To do so, a
thorough analysis and discussion of cumulative impacts is necessary.
The legislature recognized as much, making a cumulative impacts
analysis mandatory."
Friends of the Wild Swan, 2000 MT 209, ¶ 34, ` P.3d
Federal NEPA decisions also discuss the necessity for and reasoning behind the
requirement that agencies consider cumulative impacts. "[T]here are situations in which an
agency is required to consider several related actions in a single EIS." Thomas v. Peterson, 753
F.2d 754, 758 (9`h Cir. 1985) "Not to require this would permit dividing a project into multiple
"actions," each of which individually has an insignificant environmental impact, but collectively
have a substantial impact." Thomas, 753 F.2d at 758; see also Alpine Lakes Protection Soc'y v.
Schlapfer, 518 F.2d 1089, 1090 (9`' Cir. 1975). Yet that is what the Department proposes here:
dividing its MEPA analysis into individual components for each lease, which may be
individually not significant but collectively will create a major impact in Flathead County.
The Department, of course, knows full well that it must comply with MEPA on Section
36. It made that representation directly to the public in meetings on the proposal. Exhibit 8. Its
representatives made the same representation to Governor Racicot and the entire Board of Land
Commissioners: "It is the Department's intention to do MEPA analysis on the entirety of
the project which will be conducted before the MOU is signed." Exhibit 3, pp. 3, 6. That
commitment was made just one year ago; nothing has changed in terms of the Neighborhood
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Plan that alters the veracity of that statement. MEPA requires precisely that, an analysis on the
entirety of the project, before site specific actions can proceed.
D. The Department's Failure to Consider Alternatives to the Proposed Development
Violates MEPA
MEPA also requires the Department to provide a detailed statement on alternatives to the
proposed action; and to study, develop, and describe appropriate alternatives in any proposal that
involves unresolved conflicts concerning alternative uses of available resources. 75-1-201
(1)(b)(iv)(C) and (1)(b)(v), M.C.A. (1999). The Department's MEPA implementing regulations
define alternatives to include those that would accomplish the same objectives, different
objectives, and no action; so long as they are related, realistic, and available. A.R.M. 36.2.522
(2)•
The statutory construction of MEPA is similar to that of MEPA in regards to the
requirement that agencies develop and consider alternatives to a proposed action. In this case,
the Department failed to seriously consider any alternative to the proposed development, let
alone the full range of alternatives mandated by MEPA. Federal case law under MEPA supports
the proposition that such a failure violates the purpose of MEPA as well as the letter of the law.
Relinquishing the "no action" alternative without the preparation of an EIS subverts
NEPA's goal of insuring that agencies infuse in project planning a thorough consideration of
environmental values. The "heart" of the EIS — the consideration of reasonable alternatives to
the proposed action — requires agencies to consider seriously the "no action" alternative before
approving a project with significant environmental effects. Conner v. Burford, 848 F.2d 1441,
1451 (9`h Cir. 1988) (citing 40 C.F.R. § 1502.14(d) (1985)). "MEPA requires that agencies
consider alternatives to recommended actions whenever those actions involve unresolved
conflicts concerning alternative uses of available resources." Bob Marshall Alliance v . Hodel,
852 F.2d 1223, 1228 (9`h Cir. 1988).
The consideration of alternatives requirement furthers that goal by guaranteeing that
agency decisionmakers "have before and take into proper account all possible approaches to a
particular project (including total abandonment of the project) which would alter the
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environmental impact and the cost -benefit balance." Bob Marshall Alliance, 852 F.2d at 1228
(quoting Calvert Cliff's Coord. Com., 449 F.2d at 1114). NEPA's requirement that alternatives
be studied, developed, and described both guides the substance of environmental decisionmaking
and provides evidence that the mandated decisionmaking process has actually taken place. Bob
Marshall Alliance, 852 F.2d at 1228. "Informed and meaningful consideration of alternatives —
including the no action alternative — is thus an integral part of the statutory scheme." Bob
Marshall Alliance, 852 F.2d at 1228.
"Moreover, the consideration of alternatives is critical to the goals of NEPA even where a
proposed action does not trigger the EIS process." Bob Marshall Alliance, 852 F.2d at 1228-29.
This is because the consideration of alternatives requirement is contained in a separate subsection
of the statute and therefore constitutes an independent requirement. Bob Marshall Alliance, 852
F.2d at 1229. "The language and effect of the two subsections also indicate that the
consideration of alternatives requirement is of wider scope than the EIS requirement. The former
applies whenever an action involves conflicts, while the latter does not come into play unless the
action will have significant environmental effects... Thus the consideration of alternatives
requirement is both independent of, and broader than, the EIS requirement." Bob Marshall
Alliance, 852 F.2d at 1229 (additional citations omitted).
There are alternatives to the development pattern sanctioned by the Neighborhood Plan.
First and foremost is the "no action" alternative, which is required by regulation. Failure to
consider a no action alternative alone renders an EIS invalid. Id.; See also Van Abbema v.
Fornell, 807 F.2d 633 (7`h Cir. 1986) (remand to agency for failure to consider no -build
alternative). Other alternatives to the Neighborhood Plan - different mixes of development, costs
structures for leasing and so forth - have been presented to the Department. Affidavit of Mayre
Flowers. Yet the Department stubbornly sticks with the Neighborhood Plan as the only
alternative it will consider as the master plan for Section 36.
The failure to consider a full range of alternatives to the Neighborhood Plan before it
becomes the controlling blueprint for development is especially glaring in view of the
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Department's legal obligation to put.state trust lands to the "highest and best use." The law
requires the Department to Section 36 to the " highest and best use," and develop it in such a
fashion that it benefits the economy of the local community as well as the State as a whole, as
required by § 77-1-601 M.C.A. (1999). The Neighborhood Plan may not be in the best interest
of the greater Kalispell community. It may promote development that has undesirable
consequences on growth patterns, traffic, pollution and the central downtown area of Kalispell.
Affidavit of Mavre Flowers. Without subjecting the Neighborhood Plan to comparison with
other alternative uses for Section 36, and other types of leasing arrangements, the Department
cannot ascertain that the Plan complies with the mandate of § 77-1-601.
The Department's failure to consider a reasonable range of alternatives is unlawful and
violates MEPA.
E. The Department's Decision to Comply with MEPA Only for Individual Leases
is Unlawful.
The Department has taken the position that it must comply with MEPA only when it
issues leases for specific projects. While it is true that lease proposals will trigger MEPA review,
that review will not encompass the "big picture" issues that need to be examined based on the
Neighborhood Plan. Because the Plan locks in a certain pattern and level of development for all
of Section 36, analyzing only the impacts of individual leases means the Department will never
have considered the overall impact of adopting the Plan and requiring all site -specific
development to conform to the Plan. As discussed above, the Department's failure to undertake
MEPA at the time it adopted the Neighborhood Plan violates MEPA's plain language,
implemementing regulations and judicial precedent. It also runs counter to the fundamental
purpose and policy of MEPA, to address impacts before decisions are made.
Federal decisions have held that compliance with NEPA's procedures requires that EAs
and EISs "must be prepared early enough so that they can serve practically as an important
contribution to the decisionmaking process and will not be used to rationalize or justify decisions
already made." Idaho Sporting Congress Inc. v. Alexander, 222 F.3d 562, 567-68 (9`h Cir. 2000);
see also Metcalf v. Daley, 214 F.3d 1135, 1145 (91h Cir. 2000) ("NEPA's effectiveness depends
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entirely on involving environmental considerations in the initial decisionmaking process"). "The
phrase `early enough' means at the earliest possible time to insure that planning and decisions
reflect environmental values." Idaho Sporting Congress, 222 F.3d at 568 (quoting ' Metcalf, 214
F.3d at 1142 (quoting Andrus v. Sierra Club, 442 U.S. 347, 351 (1979))). The Supreme Court, in
Andrus, stated that EISs "shall be prepared at the feasibility analysis (go -no go) stage and may be
supplemented at a later stage if necessary." Andrus, 442 U.S. at 351 n.3.
The Ninth Circuit held that NEPA required the government to prepare an EIS for both an
overall plan to market water for industrial uses related to coal production, as well as on the
individual option contracts issued under that plan. Environmental Defense Fund, 596 F.2d at
853. The court found that "uncertainty about the details of subsequent use of diverted water does
not obviate the importance of the decision to divert and the necessity to evaluate the
environmental consequences of that decision" Id. at 851; see also Port of Astoria v. Hodel, 595
F.2d 467, 478 (9`h Cir. 1979) (holding NEPA required Bonneville Power Administration (BPA)
to prepare an EIS for BPA's regional proposal for development of power resources as well as for
an individual contract to build a power plant under that plan).
Applying these holdings to the facts in the case at bar supports the Plaintiff's contention
that an EIS should be prepared for the overall development plan represented by the
Neighborhood Plan and MOU, despite uncertainties about the details of subsequent development
under individual lease contracts. The decision to develop in the first place must be based upon
an analysis of probable environmental impacts. If the proposed development contemplated in the
Neighborhood Plan and MOU is sufficiently certain to justify the preparation of the Special
Lease Proposal and the UEP, then the proposed development is certain enough to allow analysis
its environmental impacts.
When the decision was made to approve the Neighborhood Plan and MOU, the potential
uses for the entire section were already determined. See Exhibit 1. Now, plans have already
been released for bidding, acceptance and approval of leases; and for extension of utilities, roads,
and other vital services to the proposed development. Exhibits 6 and 7. This additional planning
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and documentation demonstrates that there is sufficient specificity to perform the required
MEPA analysis now. Impacts of site specific leases can then be logically tiered to the section -
I wide EIS.
IV. CONCLUSION/RELIEF REQUESTED
Based on the foregoing, Plaintiffs ask this Court to rule as follows:
1. Declare that under MEPA, the approval of the Neighborhood Plan and MOU
pertaining to the leasing for commercial and residential development of state school trust lands
triggers the need for an EIS, and that under the facts of the instant case the Department acted
unlawfully by failing to prepare an EIS to account for the individual and cumulative
environmental impacts of the proposed development prior to moving forward with the plan for
Section 36.
2. Declare that the Department acted unlawfully when it failed to consider alternatives to
the proposed development of Section 36, as contemplated by the Neighborhood Plan and the
MOU, as required by MEPA and its implementing regulations.
3. Require the preparation of an EIS, or EA for a determination of significance under
A.R.M. 36.2.524 and require the Department to request local governments to amend their land
use plans based upon the MEPA analysis.
4. Enjoin the Department from proceeding with site specific leases until a lawful MEPA
analysis has been completed and approved.
Dated this 2"d day of October, 2000.
Tuholske
v for the Plaintiffs
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