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JACK R. TUHOLSK.E
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.,
CITIZEN'S FOR A BETTER FLATHEAD
INC.
PLAINTIFFS,
vs.
MONTANA DEPARTMENT OF
NATURAL RESOURCES AND
CONSERVATION, MONTANA BOARD
OF LAND COMMISSIONERS,
DEFENDANTS.
Introduction
Cause No.CDV-2000-396
PLAINTIFFS'
REPLY BRIEF
The central issue in this case is whether the Montana Department of Natural Resources &
Conservation (Department) Was required to comply with the Montana Environmental Policy Act
(MEPA) when it prepared and approved a land use plan for a section of state land near Kalispell.
The Department and the Montana Board of Land Commissioners (Board) (collectively referred
to as Defendants), mis-characterize the position of the Montana Environmental Infonnation
Center, Inc. and Citizens For A Better Flathead, Inc. (Plaintiffs) as a "disagreement with the
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fundamental land management policies of the State Land Board," State's Summary Judgment
Brief, p. 1., The Plaintiffs do not take exception with the State's general policy regarding leasing
and land use on State lands. Plaintiffs complain only of the Defendants' failure to follow MEPA
in approving a new land use plan for the state lands at issue. Plaintiffs' Summary Judgment
Brief,p. 11 _ MEPA requires that the potentially significant environmental effects of the decision
to expand the allowable uses of Section 36 be considered prior to making that decision. See Td.
pp. 11 - 12_ MEPA also requires that the Department evaluate alternatives to the proposed land
use plan. The Department's decision to authorize commercial and residential development of
Section 36 constitutes a final agency action for the parposes of MEPA review, and is embodied
in the State's Neighborhood Plan and Memorandum Of Understanding (MOU), both of which
were approved by the Department. Td. The Defendants' position that the Neighborhood Plan
and the MOU do not represent a decision to change the "status quo," in terms of permissible land
uses for Section 36, is disingenuous and is belied by their own admissions and the plain wording
of their own documents.
Argument
1. The Neighborhood Plan and MOU Change the Status Quo.
Prior to the State's approval of the Neighborhood Plan and MOU, the only authorized
land uses within Section 36 were agriculture and recreational sports fields. The Plan and MOCK
expand the allowable uses to include commercial and residential development through issuance
of 20 and 40 year leases. The Defendants' numerous statements that the Plan does not change
the status quo are facially invalid.
The Defendants assert that MEPA review is unnecessary -"where a state action (such as
the neighborhood plan) cannot cause, or result in, any change in the existing land uses." State's
Summary Judgment Brief, p. 6. The essence of this assertion is that the Neighborhood Plan and
MOLT have no effect on Section 36. However, this is contrary to the wording of those documents
and the Department's own brief, which admits that "any activity upon Section 36 will be in
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compliance with the neighborhood plan." State's Summary.ludg»ent Brief p. 11, Thus the
Neighborhood Plan, by the Department's admission, is a binding decision that wi11 control all
subsequent development on Section 36.
The unsupported assertion that the Plan and MOU do not change the status quo is nothing
more than a half-hearted attempt to get around the plain language of Ravalli County Fish and
Game Ass'n, which held as a matter of law that the State's authorizing a change in use of state -
leased land, which may significantly effect the human environment, is a major state action that
triggers MEPA review. 273 Mont. 371, 379, 903 P2d 1362. 136S (1995). Simply stated, the
Plan and MOU do change the permissible land uses on Section 36, because they allow residential
and commercial development where it was not previously authorized. As Plaintiffs discussed in
detail in their opening brief, the Plan provides substantial details about the new uses, and
precludes other types of development or preserving the land as open space.
2. The Neighborhood Plan and MOU Constitute a Judicially Reviewable State Decision to
Allow New Land Uses Within Section 36.
The Neighborhood Plan and MOU are State proposals, prepared and signed on behalf of
the State, which change the allowable uses of land leased within Section 36, The Defendants
attempt to paint the proposed development of Section 36 as a local planning issue. 5ee
Defend +nt's Summary Judgment i3iief, p. 13. Though the project may also involve local
planning decisions, the proposal to issue leases for the commercial.and residential development
of Section 36 was directly undertaken by State agencies and is a state action.
The Neighborhood Plan and MOU fit squarely within the Department's definition of
"action," as: "a project or activity involving the issuance of a lease." ARM 36.2.522(1). The
Defendants concede this point, as to the Neighborhood Plan. State's Sulmmary Judgment Brief,
p. 6 (quoted above). The document is titled "DNRC Neighborhood Plan," and the Plan as well
as the MOU were approved by the Montana Board of Land Commissioners. See Plaintiffs
Exhibit 4, pp. 4-5. To now imply that this is not a state action is disingenuous. Indeed, the fact
that both the Department and the Board of Land Commissioners approved the documents proves
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that the change in use is more than simply a decision of local governments.
The decision embodied in these documents is a final action because it marks the
consummation of agency decisionmaking regarding the range of allowable uses for Section 36.
That rights and obligations have been determined, and legal consequences flow from this
decision, is demonstrated by the plans and expenditures the City of Kalispell has already made in
reliance on these documents. See Plaintiffs' Exhibit 7. The State's decision to develop Section
36 in the manner set out in the Neighborhood Plan may require subsequent site specific decisions
as well, but it also is an irretrievable commitment to a course of action. Agairl, it is not rile
content of the Plan that the Plaintiffs challenge, but the Defendants' failure to follow MEPA's
procedural mandates in authorizing it.
Defendants cite Ohio Forestry Ass'ri, Inc. v. Sierra Club in arguing that the State's
approval of the Plan and MOU without preparing an ETS is not ripe for judicial review. 523 U.S.
726 (1998). However, Ohio Forestry struck down a substantive challenge to a forest plan
brought under the National Forest Management Act (NFMA). Id. That opinion distinguishes
substantive challenges brought under NFMA from procedural challenges brought under NEPA.
Id. at 737, The Court stated that a procedural challenge brought by a plaintiff who is injured by a
failure to comply with NEPA "may complain of that failure at the time the failure takes place, for
the claim can never get riper." Td. In Idaho Conservation League v. Mumma, the Ninth Circuit
recognized that when an agency does not follow procedures required by NEPA, the "risk that
environmental impact will be overlooked" is the injury inflicted. 956 F.2d 1508, 1514 (9`h Cir.
1992). The Supreme Court illustrated this point in terms of standing in Luian v. Defenders of
Wildlife, stating that "one living adjacent to the site for proposed construction of a federally
licensed dam has standing to challenge the licensing agency's failure to prepare an [EIS], ever.
though he cannot establish with any certainty that the statement will cause the license to be
withheld or altered, and even though the dam will not be completed for many years." 504 U.S.
555, 572 n.7 (1992). Here, the Plaintiffs make a similar procedural challenge to a State decision
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to authorize additional and specific types of development, without preparing an EIS.
In Ohio Forestry, the plaintiffs argued that the forest plan's expansion of permissible land
uses in opening some trails to motorized travel constituted a threat of immediate harm. 523 U.S.
at 738. The plaintiffs' complaint did not include these claims, so the court declined to address
them. Id. However, the Court did state that if the plaintiffs "had previously raised these kinds of
harm, the ripeness analysis ... with respect to those provisions of the Plan ... would be
significantly different." Id. Again, the facts of the present case are similar. The State, through
the Neighborhood PIan and MOU, expands the permissible land uses on Section 36 «without
considering potential environmental impacts; and that is the action upon which the Plaintiffs base
their MEPA claim of procedural harm. Contrary to the Defendants' assertions, Ohio Forestry
explicitly and implicitly acknowledges the ripeness of such claims.
3. MEPA Expressly Covers the State's Approval of the Neighborhood Plan and MOU.
The Defendants cite Section 77-1-121, MCA, for the proposition that the: State's approval
of the Neighborhood Plan and MOU is exempt from MEPA, absent "physical change on the
ground." State's StIffiMary Judgment 13i-ief, p. 12. However, this assertion is belied by the plain
and unambiguous language of the statute. Subsection one requires compliance with MEPA when
"the department is actively proposing to issue a ... lease." Mont. Code Ann. § 77-1-121(1)
(1999). Nowhere does the statute require or even mention "physical change on the ground."
Rather, this statute and MEPA in general, use the terms "proposing" and "proposal," suggesting
the lack of any requirement of "physical change on the ground." The Defendants go on to argue
that the Plaintiffs "cannot point to any facts which show that the Board or Dept. are
proposing to issue ... a lease ... for use of state land." This assertion is baffling, since the
Neighborhood Plan, MOU, and Special Lease Proposal prepared by the Department show that
this precisely what the State proposes to do_
5. The State is Not Entitled to a Presumption of No Significant Impact.
Defendants assert that a presumption of no significant impact and a concurring exemption
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from MEPA necessarily follows a project's compliance with local zoning and planning
ordinances.' State's Summary Judgment Brief, V. I I. However, the cases cited by the
Defendants do not support tlus proposition. Dicta in Maryland — National Capital Park &
Planning Commission v. U.S. Postal Service, actually states "[t]here is room for the contention,
and there may even be a presumption" of non -significance. 4S7 F.2d 1029, 1036 (D.C. Cir.
1973) However, the court presumed nothing, but reviewed the merits of the case and held, in
part, that the record was not sufficiently detailed to permit authoritative determination of the
necessity of an EIS. Id_ The court then remanded the case for detenmination of ��'hether are EIS
was required. rd.
Town. of Groton v. Laird is also unsupportive of the Defendant's proposition and is easily
distinguished. 353 F. Supp. 344 (D. Conn. 1972). The court, in that case, held that where the
Navy's proposed housing project was nearly identical with town's plans for the area and the
Navy's environmental assessment took into account health, safety, local soeio-economic factors,
transportation systems, vehicular and air traffic patterns, utility systems, public services and
aesthetics, the Navy's decision to proceed with project without filing an environmental impact
statement was neither illegal, arbitrary nor capricious. Id. As the holding suggests, the court
made no presumption, but reviewed the merits of the case, as well as the EA which the Navy had
already prepared. Td. Here the Department has not so much as prepared an EA, let alone an EIS.
Furthemore, in Goose Hollow Foothills League v. Romney, the court held that despite
compliance with local zoning ordinances, the Department of Housing and urban Development's
finding of no significant impact from construction of high rise buildings, ignored cumulative
environmental effects and was arbitrary because it did not consider that construction of high rise
'MEPA regulations also require that the significance of impacts shall be assessed. Thus
even if the state could presume that compliance with local regulations would not likely cause
significant impacts, the Department still has to at least prepare an Environmental Assessment to
document that conclusion. See A.R.M. 36.2.524(l) (the Department "shall determine the
significance of impacts associated with the proposed action,"), The mandatory nature of this
provision was affinned by the Montana Court in the 12avalli County case.
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buildings would change the character of the neighborhood, would concentrate population in the
area, increase automobile traffic, and would cause loss of existing views from certain
neighboring properties. 334 F. Supp. 877 (1971).
These cases suggest that the individual facts of each case must be considered in
determining the potential significance of environmental impacts, Neither MEPA, nor the
foregoing cases support application of a presumption of non -significance in any case. The
Defendants' assertion that such a presumption exists and should be applied here, is misleading at
best_
6. MEPA Requires the Agency to Consider Alternatives.
MEPA requires the Deparn-nent prepare a detailed statement on alternatives to a proposed
action, including a no -action alternative. Mont. Code Ann. § 75-1-210(1)(b) (1999); A.R.M.
36.2.522(2), MEPA mirrors MEPA on this point, and federal case law interprets NEPA to
require consideration of a]t'ematives even where a proposed action does not trigger the EIS
process. See Plaintiffs' Summary Judgment Brief, p. 18.
The State did not seriously consider continued leasing of Section 36 for recreational and
agricultural uses, nor did it consider any other development scenarios as alternatives to the one
set out in the Neighborhood Plan. The State's Summary Judgment Brief declines to address this
issue at all.
7. The State Should be Ordered to Comply with MEPA and Enjoined From
Further Leasing Activity in the Interim.
The Department suggests that MEPA review is inappropriate because it would somehow
contravene the Department's duty to maximizing income from state lands. Defendants Brief at p.
11-22. This duty does not exempt the agency from complying with MEPA; the Montana Supreme
Court laid that argument to rest in the Ravalli County case, Ravalli County, 273 Mont. at 383.
("Income is "a" consideration, not "the" consideration regarding school trust lands: Maximizing
income is not paramount to the exclusion wildlife or environmental considerations in the MEPA
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I context."). The leasing of state lands can be momentarily delayed while the Department
complies with MEPA.
Plaintiffs ask the Court to enjoin further actions of the state with respect to leasing
Section 36 until MEPA compliance is achieved. As then -Judge Breyer of the First Circuit
explained, the purpose of NEPA (which is identical to MEPA) "is to minimize —the risk of
uninformed choice, a risk that arises in part from the practical fact that the bureaucratic decision
makers (when the law permits) are less likely to tear down a nearly completed project than a
barely started project." Sierra Club v. Marsh, 872 F.2d 497, 500-01 (1st Cir. 1989). The Court
further explained:
[A]s time goes on, it will become ever more difficult to undo an improper decision ( a
decision that, in the presence of adequate environmental information, might have
come out differently). The relevant agencies and the relevant interest groups —may
become ever more committed to the action initially chosen, They may become ever
more reluctant to spend even greater amounts of time, energy and money that
would be needed to undo the earlier action and to embark upon a new and different
Id. at 503 (emphasis added). Here the Department has already trod too far down its chosen path
without complying with MEPA. To allow further actions on individual leases without first
preparing an EIS on the Neighborhood Plan would likely predetenrtine the outcome of the EIS.
An injunction pending MEPA compliance is the appropriate remedy at this juncture. See e. .
Steubing v_ Brinegar. 511 F.2d 498 (2d Cir. 1975); I-291 Why? Association V. Burns. 372 F.
Supp. 223 (D. Conn. 1974), aff d memorandum, 514 F.2d 1077 (2d Cir. 1975).
DATED THIS 23'd day of October, 2000 )
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R. Tuholske
-nev for Plaintiffs
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CERTIFICATE OF SER`JICE
The undersigned served a copy of the foregoing on the following person, postage prepaid,
on October 23'0, 2000, addressed as follows:
Tom Butler
Attorney at Law
Montana Department of Natural Resources & Conservation
1625 1 lth Avenue
Helena, Montana 59620 /
r"
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