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State's Brief in Support of Motion for Summary JudgementTommy H. Butler Michael J. Mortimer Special Assistants Attorney General Montana Department of Natural Resources and Conservation P.O. Box 201601 Helena, MT 59620-1601 1 F' C, C L E*. K ,Y ; to ENLY u:.,TR', i(v( gT 4T - 5 IL 4. , ; ,y \ riLE31 AiVG :3 Y SPARKS /E kS MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY MONTANA ENVIRONMENTAL INFORMATION CENTER, INC., CITIZENS FOR A BETTER FLATHEAD, INC., Plaintiffs, -vs- MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, and MONTANA BOARD OF LAND COMMISSIONERS, Defendants Cause No. CDV-2000-396 STATE'S BRIEF IN SUPPORT OF STATE'S MOTION FOR SUMMARY JUDGMENT INTRODUCTION The Defendants, the Montana Department of Natural Resources & Conservation, and the State Board of Land Commissioners have moved the Court for summary judgment in their favor pursuant to Rule 56, M.R.Civ.P. The Plaintiffs, MEIC, Inc. and Citizens for a Better Flathead, Inc. (hereinafter referred to as "MEIC and CFBF", respectively) disagree with fundamental land management policies of the State Land Board. Those policies seek to develop various urban parcels of state trust lands so as to obtain a prudent financial return on those lands for the beneficiaries of the trust, as is required by the Montana Constitution. The State Board of Land- Commissioners has directed that DNRC prepare a programmatic EIS on trust land development state-wide while DNRC simultaneously also prepares site -specific MEPA documents on any authorization for use of individual tracts. (See, Plaintiff's exhibit 4, May 15, 2000 minutes of the State Land at pages 4, 5, and 10.) MEIC and CFBF disagree with these fundamental policies and ignore the constitutional mandate to recover the full market value of the use of state trust lands. Art. X, Section 11, 1972 Montana Constitution. The Montana Supreme Court recently held in Montrust v. State ex rel. Board of Land Commissioners, 1999 MT 263, 989 P.2d 800 (Nov. 2, 1999) that it was unconstitutional for the state to allow land to sit idle indefinitely because such action is inconsistent with the constitutional mandate that full market value be obtained for school trust lands. Id., 989 P.2d at 810. THE COURT MAY ONLY REVIEW THE ADMINISTRATIVE RECORD The environmental Plaintiffs have requested that the Court review various evidentiary documents in the resolution of this case. In any case alleging a violation of MEPA, the Court is restricted to a review of the administrative record in existence at the moment in time for which a MEPA document is requested. The Court may only view what the administrative agency had seen and considered prior to its decision to prepare or not prepare a MEPA document. MEPA requires that: (b) When new, material, and significant evidence is presented to the district court that had not previously been presented to the agency for its consideration, the district court shall remand the new evidence back to the agency for the agency's consideration and an opportunity to modify its findings of fact and administrative decision before the district court considers the evidence within the administrative record under review. Immaterial or insignificant evidence may not be remanded to the agency. The district court shall review the agency's findings and decision to determine whether they -are supported by substantial, credible evidence within the administrative record under review. The Affidavit of Mayre Flowers is not probative of any fact in issue here. Similarly, it is hard to imagine how Exhibit No. 7 is relevant here where it was not prepared by state government and post-dates the MOU at issue by nine days. Exhibit No. 7 is rank hearsay, irrelevant, unauthenticated, and inadmissible as evidence. The court should not consider it in reviewing the Plaintiff's motion for summary judgment. Because Exhibit No. 7 is immaterial and insignificant, the Court pursuant to Section 75-1-201(3)(b), MCA, must not consider it. Similarly, there is no authentication of Exhibit No. 8 and it is inadmissible as well. The Plaintiffs have submitted Exhibit No. i as an example of the neighborhood plan dated February 8, 1999, which is irrelevant. It is not the plan adopted by the City or County. The State Defendants have submitted a true and correct copy of the neighborhood plan dated April 20, 1999 attached to the Affidavit of David Greer. ARGUMENT The Plaintiffs erroneously assert that MEPA requires an environmental review at a specific geographic level or scope whenever they demand it. MEPA is a totally procedural statute and it does not mandate any particular agency policy, nor does it require any specific geographic scope of review. Ravalli County Fish and Game Ass'n v. DSL, 273 Mont. 371, 903 P.2d 1362 (1995); Friends of the Wild Swan v. DSL, Cause No. DV 89-074(A), I Ith Judicial District Court (commonly referred to as the Swan "A" case.) The present case brought by MEIC and CFBF wrongly attempts to engraft the 3 requirements of MEPA to the agency's policies in an attempt to thwart the State Land Board's directions concerning land development on a specific parcel of land. The Plaintiffs have erroneously contended that the April 19, 2000 Memorandum of Understanding between the State Board of Land Commissioners, Flathead County and the City of Kalispell is a direct authorization for use of land. It is not. (See Affidavit of David Greer at paragraph 5 and Exhibit 1) The neighborhood plan itself does not change or require any change in any current use of Section 36, since the permissible uses stated in the neighborhood plan include agricultural uses, equestrian facilities, the growing of crops, sports fields and recreational facilities, which are consistent with the current use of the land for agricultural purposes and sports fields. (See, pages 10 and 12 of the neighborhood plan wherein it states that "agricultural uses and activities are acceptable; and Appendix Exhibit A — 1 wherein it provides that "gardens and horticultural facilities" are acceptable uses.) Accordingly, the neighborhood plan and the MOU do not, and cannot, trigger the preparation of an environmental review document under the Montana Environmental Policy Act. The environmental challengers have also erroneously contended that the State of Montana has an obligation to prepare a MEPA document when participating in neighborhood planning, which is a wholly local decision -making process. MEPA only applies to agencies of state government. Section 75-1-201(1)(b) provides that "all agencies of the state, except the legislative and except as provided in subsection (2) ... " shall comply with MEPA. MEPA does not apply to city or county governments. When the executive branch of state government is merely a participant, like other citizens, in other governmental processes which it cannot control, MEPA cannot fulfill its fundamental purpose: to inform the public and the decision maker. There is simply no need to prepare an analytical document where the executive branch of state government has no decision to make, and all decision -making authority lies with local government. The Plaintiffs argue that further MEPA analysis is inherently good because it requires government to carefully consider the consequences of all its actions. They reason that public policy mandates that every governmental policy be subjected to the cleansing effects of MEPA review. The Plaintiffs ignore that the State Land Board has committed to the preparation of a programmatic EIS on the development of state lands as well as a site -specific MEPA document to examine all the impacts to Section 36 of any change of use stemming from any future lease proposals on that tract. See, Plaintiff's Exhibit No. 4, the May 15, 2000 minutes of the State Land Board at page 10 wherein Governor Racicot stated: ... Ms Hedges is alleging there ought to be a programmatic EIS but by alleging there is no MEPA compliance is a conclusion not supported by the facts. The fact of the matter is that MEPA analysis would not just be on a lease -by -lease basis, when the state has a proposal it will do MEPA analysis on that specific proposal plus any other potential proposals in that section that could be conceived of at the time. Governor Racicot said the allegation that there is not going to be or hasn't been any MEPA analysis to direct the Department is only because there hasn't been any triggering event to require it. The Board then unanimously approved the MOU between the City, the County, and the State. Quite simply, the Plaintiffs have nothing to complain about. A programmatic MEPA document is being prepared and further MEPA review will be prepared on a site - specific basis which will take into account all the concerns of the Plaintiffs prior to the approval of or issue of any development lease upon Section 36. MEPA should not be prepared until the State takes direct action to authorize, another party to make use of state. lands. MEPA serves no purpose in any other context. A review of the Plaintiffs' arguments quickly reveals that the Plaintiffs are urging this court to adopt a legal interpretation that would make administrative MEPA analysis limitless in scope and application. Extending the Plaintiff's arguments to their logical extension, state government would have to prepare a MEPA document every time it lobbied the legislative branch, filed or defended litigation with the judicial branch, or simply wrote a letter to a city manager concerning its use of state lands. MEIC and CFBC fail to acknowledge several fundamental legal principles that prevent the triggering of any MEPA review in the present case. First, MEPA reviews need not be prepared where a state action (such as the neighborhood plan) cannot cause, or result in, any change in the existing land uses on the disputed state land. Because they maintain the status quo of the existing land uses, the MOU and the neighborhood plan do not trigger any need for a review under MEPA. Second, no MEPA reviews need be prepared where they fit within the MEPA exemption granted to the Board and the Department by Section 77-1-121, MCA. Third, the agency retains the full legal prerogative to choose the reasonable size of any MEPA analysis area. Judge Keller previously held in the Swan "A" case, ); Friends of the Wild Swan v. DSL, Cause No. DV 89-074(A), I l,h Judicial District Court, that the agency could reasonably prepare site - specific MEPA documents while it engaged in the preparation of a state-wide programmatic EIS to review management procedures on state forested lands. In the Swan "A" case the Court refused to require the preparation of an EIS strictly at the level of the Swan River State Forest; even though demanded by the environmental Plaintiffs in that case. Likewise, Judge Honzel, in Friends of the Wild Swan v. DSL, CDV 95-314, Mont. 1' Judie. Distr. Ct.(December 13, 1995) held that the Department could produce a. programmatic EIS while preparing site specific review documents because the agency's MEPA rule on the preparation of programmatic documents [now codified as ARM 36.2.537(6)] specifically allowed it to do so because the rule possessed conjunctive terms. Judge Honzel thus held that the Department's entire timber program could not be halted pending preparation of a programmatic EIS, as long as one was in preparation. The Plaintiffs are making the same flawed argument here. Nonetheless, the Court cannot direct the agency to analyze actions at the level the environmental challengers wish it to be done because such an order violates the separation of powers doctrine under Article III, Section 1 of the 1972 Montana Constitution. The Court should not attempt to control the future actions of the agency in the absence of a clearly expressed legal duty. In interpreting a statute, a court "is not to enact, but [only] to expound, the law ....... Clark v. Olson,96 Mont. 417, 432, 31 P.2d 283, 288 (1934). Accordingly, the Court should not halt any development of state lands, since the State is preparing a programmatic EIS. In this action, the environmental Plaintiffs have the burden pursuant to 75-1- 201(3), MCA, to prove by clear and convincing evidence that the Department's decision not to produce a MEPA document was either arbitrary, capricious, or unlawful. 11 ., I 1 0 01 Oai ) The primary question to be resolved by this Court is whether the requirements of MEPA have been triggered by any past action authorizing the use of land by the State Board of Land Commissioners or the DNRC with respect to Section 36 within Township 29 North, Range 22, in Flathead County, Montana. MEPA is triggered by three requirements. First, there must be state action authorizing the use of land. Second, that action must be major. Third, it must be shown that the major state action may result in a physical impact to the land resulting in a possible significant impact or degradation of some part of the human environment. Metropolitan Edison, 460 U.S. 534 at 772-773 (1983) Ravalli County Fish and Game Ass'n v. DSL 903 P.2d 1362, 273 Mont. 371 (1995) ; Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9`h Cir., 1998) The Department's MEPA rule, ARM 36.2.522(1), defines an "action" as: ... a project, program or activity directly undertaken by the agency; a project or activity supported through a contract, grant, subsidy, loan or other form of funding assistance from the agency, either singly or in combination with one or more other state agencies; or a project or activity involving the issuance of a lease, permit, license, certificate, or other entitlement for use or permission to act by the agency, either singly or in combination with other state agencies. MEPA is a procedural, not a substantive statute. It does not require any particular policy choice. Ravalli County Fish and Game Ass'n v. DSL. There is no agency action if there is no final agency action. ARM 36.2.521 requires DNRC to conform to its MEPA rules,". . . prior to reaching a final decision on proposed actions covered by MEPA". DNRC and the Board of Land Commissioners have not reached a final decision concerning the fate of Section 36 in Kalispell because no decision has been made to change the existing uses of this parcel. MEIC and CFBF must admit that no irretrievable commitment of resources has been made by the Board or the Department with respect to Section 36. The Department has requested proposals for uses of Section 36 which are consistent with the Neighborhood plan. However, prior to the issuance of any approval for land use, the Department will prepare the appropriate MEPA document reviewing that use. The Court must presume that the agency will comply with its MEPA duties in the future. North Fork Preservation Ass'n v. DSL, 238 Mont. 451 at _, 778 P.2d 862 at 869 (1989), citing Conner v. Burford, 836 F.2d 1521 at 1528 (9th Cir.1988). The Ninth Circuit U.S. Court of Appeals has held in Western Radio Services v. Glickman, 123 F.3d 1189 (91h Cir., 1997) that there is no final agency action unless: 1) there is a consummation of the agency's decision -making process; and, 2) rights or other obligations have been determined; and 3) legal consequences will flow from those determinations of rights and obligations. Similarly, the Ninth Circuit Court has held in ONRC v. BLM, 150 F.3d 1132 (9`h Cir., 1998) that a refusal to comply with an environmental challenger's request for a moratorium is insufficient to constitute agency action. NEPA review is triggered by actions physically affecting the environment. In Northcoast Environmental Center v. Glickman, 136 F.3d 660, 669 (9`h Cir., 1998) The Ninth Circuit held that mere preliminary research and development efforts do not trigger EIS requirements under NEPA or constitute an agency action under the APA. There is simply no need for a NEPA document where the proposed agency action would not change the status quo. National Wildlife Federation v. Espy, 45 F.3d 1337, 1343 (91h Cir., 1995) citing, Upper Snake River v. Hodel, 921 F.2d 232, 235 (9`h Cir., 1990) In Ravalli County Fish and Game Ass'n the Montana Supreme Court observed that there is no need for a MEPA document where the status quo on the ground is maintained. Id. at 903 P.2d 1366. Similarly, the preparation of a mere planning document does not trigger the need for a NEPA document. See, Ohio Foresjjy Assn. Inc. v. Sierra Club, 523 U.S. 726 (1998). In Kleppe v. Sierra Club, 427 U.S. 390 (1976) the U.S. Supreme Court held that no regional EIS needed for coal mining in the absence of actual proposal because NEPA only speaks in terms of proposed actions, not less imminent actions. Under Kleppe an agency need not prepare a NEPA document unless the agency's plan ripen into a specific proposal for action or into a specific action of known dimensions. In the present case no specific action of known dimensions exists for the State to analyze. What physical actions can the Plaintiffs point to in the present case which require immediate analysis? There are none and MEPA is not triggered by ghostly hypothetical events or the worst imaginings of the environmental community. The contemplation of an administrative agency of some future course of action is insufficient to trigger MEPA until the agency actually proposes to carry out an action that may physically impact the environment. The Ninth Circuit U.S. Court of Appeals has held that the mere contemplation of the construction of three dams does not require the preparation of a NEPA document. Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1498 (9`h Cir., 1987) Similarly, the designation of critical habitat under the Endangered Species Act does not trigger NEPA. Douglas County v. Babbitt, 48 F.3d 1495 (9`h Cir.,1995 Continuous activity with only a change in ownership or management doesn't trigger NEPA. Citv & County of San Francisco v. U.S., 615 F.2d 498 (9`h Cir., 1980) Moreover, m when local zoning regulations and planning procedures are followed in site location decisions by a governmental agency, there is a presumption that there will be no significant impact under NEPA. Maryland — National Capital Park & Planning Commission v. U.S. Postal Service, 487 F.2d 1029 at 1036 (D.C. Cir., 1973); Town of Groton v. Laird, 353 F.Supp. 344 (D.Conn., 1972) In the present case, any activity upon Section 36 will be in compliance with the neighborhood plan and all zoning requirements. Under Maryland — National Capital Park & Planning_ Commission the Court must presume if the state activity is in compliance with local zoning and planning procedures, no significant impact will occur. If no significant impact can be presumed, MEPA cannot possibly be triggered. Although it has been suggested that NEPA be implemented at the earliest possible stage, the Ninth Circuit U.S. Court of Appeals has stated that an agency should "defer detailed analysis until a concrete development proposal crystallizes the dimensions of a project's environmental consequences. California v. Block, 690 F.2d 753, 761 (9" Cir., 1982) This Court should not allow MEPA to be employed as a tool for chronic faultfinding by any dissident political group. There is no need to prepare a MEPA document to consider hypothetical future actions whose effects cannot be reasonably ascertained, whose implementation is remote and speculative, and which will be analyzed to the fullest extent in the future. The Court must recognize and apply Section 77-1-121, MCA to the facts in the present case. Section 77-1-121, MCA, provides that if the Board and Department do not act — MEPA is not triggered. Even though the neighborhood plan may list a wide variety of activities that may take place upon Section 36, it also — undeniably — allows the current uses of an agriculture and sports fields. MEPA is not triggered because there is no physical change occurring on the ground. See, Affidavit of David Greer. There is no irreversible or irretrievable commitment of resources. If the Board and the Department choose not to act, MEPA is not triggered. The statute specifically provides that: (1) The department and board are required to comply with the provisions of Title 75, chapter 1, parts 1 and 2 [MEPA], when implementing provisions within Title 77 only if the department is actively proposing to issue a sale, exchange, right-of-way, easement, placement of improvement, lease, license, permit, or other authorization for use of state lands or is acting in response to an application for an authorization. (2) Except for rulemaking and as provided in subsection (1), the department and board are otherwise exempt from the provisions of Title 75, chapter 1, parts 1 and 2, when implementing provisions within Title 77, including but not limited to the issuance of lease renewals. The department and board do not have an obligation to comply with the provisions of Title 75, chapter 1, parts 1 and 2, when implementing provisions within Title 77 if the department or board choose not to take any action, even though either may have the authority to take an action. (emphasis added.) MEIC and CFBF cannot point to any facts in the present case which show that the Board or the Department are proposing to issue: "... a sale, exchange, right-of-way, easement, placement of improvement, lease, license, permit, or other authorization for use of state lands... ". Accordingly, MEPA is not triggered because the State Defendants are exempt from any other application of MEPA to their activities. A The Department and the Board have merely participated in the. planning process conducted by the Kalispell City — County planning board to update its Kalispell City — County master plan. The State's participation consisted of holding public informational meetings, attending meetings of the City Council, the City — County planning board, the Flathead County Board of Commissioners, and submitting a proposed amendment to the master plan. The planning process developed a neighborhood plan which restricts, but does not authorize, the types of permissible uses occurring upon Section 36. The Board did not have the ability to dictate to the City or County what the neighborhood plan would be. The Plaintiffs have had the same opportunity to participate in the planning process. Their proposals were not adopted by the City - County planning board and they are utilizing this lawsuit to circumvent democratic political processes. They represent a minority radical viewpoint that was unacceptable to the City - County planning board. The inability of an agency to influence a local process does not trigger MEPA. Accord, Sierra Club v. Babbitt, 65 F.3d 1502 (9`h Cir., )(Inability to influence ROW construction does not trigger NEPA.) The complaint of the Plaintiffs is analogous to the complaint in Heartwood, Inc. v. USFS, 73 F.Supp. 2d 962 (S.D. Ill., 1999). In Heartwood, the Plaintiff contended that the development of the agency's categorical exclusions to NEPA triggered the need for an EIS to examine the impacts to the local forest. The District Court disagreed, stating that: Categorical exclusions are not.actions themselves, nor are they proposals for actions, nor do they implement NEPA policy ... It stretches the court's credulity to imagine how a list of categories could implicate an EA or an EIS ... Any EA or EIS would surely be subject to challenge for being too speculative, vague or undetailed". 13 The Court should grant summary judgment to the State Defendants in the above - captioned matter, and dismiss the Complaint of the Plaintiffs because MEPA is not triggered until the State Board of Land Commissioners or the Department actively propose to issue a lease or license for use of Section 36. Until that occurs, Section 77-1- 121, MCA, provides that the Board and the Department are exempt from the obligation to prepare any MEPA document analyzing the impacts from either the(ADril 20, 2000 neighborhood plan or the April 19, 2000 MOU with the City of Kalispell and Flathead County. DATED this 6 day of October, 2000. -71(A. V'-qo� Tommy H. Butler Special Assistant Attorney General CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing STATE'S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT was served by mail, postage prepaid, upon the following on this l6-Cday of October, 2000: Mr. Jack R. Tuholske Attorney at Law, P.C. P.O. Box 7458 Missoula, MT 59807 Tommy H. Butler 14