No. 94-564

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

RAVALLI COUNTY FISH AND GAME ASSOCIATION,

INC., MONTANA WILDLIFE FEDERATION, INC.

SKYLINE SPORTSMEN CLUB, INC., and

ANACONDA SPORTSMEN CLUB, INC.

Plaintiffs and Appellants,

v.

MONTANA DEPARTMENT OF STATE LANDS,

MONTANA BOARD OF LAND COMMISSIONERS

and GEORGE MADDEN,

Defendants and Respondents.

APPEAL FROM: District Court of the Twenty-first Judicial District,

In and for the County of Ravalli,

The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Jack R. Tuholske, Esq., Missoula, Montana

For Respondents:

Patrick G. Frank, Esq., W. Carl Mendenhall, Esq.;

Worden, Thane & Haines, Missoula, Montana

Tommy H. Butler, Esq., Special Ass't Attorney

General, Helena, Montana

For Amicus Curiae:

Thomas France, Esq., Debbie Musiker, Esq., Missoula

Montana (for National Wildlife Federation)

John E. Bloomquist, Esq.; Doney, Crowley & Shontz

Helena, Montana (for Montana Stockgrowers Assoc.,

Montana Woolgrowers Assoc. and Bitterroot

Stockgrowers)

Alan L, Joscelyn, Esq., Helena, Montana (for Seeley

Lake Elem. School Dist. and Brady Combined School

Dist.)

Filed:

Submitted on Briefs: May 26

"Decided: Septembe:';Z, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

The Ravalli County Fish And Game Association, Inc., Montana

Wildlife Federation, Inc., Skyline Sportsmen Club, Inc., and

Anaconda Sportsmen Club, Inc. (collectively, the Sportsmen) appeal

from a Twenty-First Judicial District Court, Ravalli County, order

granting the Montana Department Of State Lands' (DSL) , Montana

Board Of Land Commissioners', and George Madden's (Respondents)

motion for summary judgment in a Montana Environmental Policy Act

(MEPA) action. We reverse.

FACTUAL BACKGROUND

Bighorn sheep (bighorn) are native to much of Montana but,

with the settlement of the west, they were eliminated from most of

their former ranges. In response to their diminished numbers,

efforts have been made to reintroduce the bighorn to some of their

former ranges. One such area is the Sula State Forest (Sula) and

adjacent lands near the East Fork of the Bitterroot River. The

presence of the bighorn adds ecological, aesthetic and economic

values to the areas and communities adjacent to bighorn ranges.

Along with its suitability as bighorn habitat, the Sula has a long

history of livestock grazing. At issue is an alleged conflict

between the grazing of domestic sheep and the health and survival

of the bighorn on the adjacent range.

Until the beginning of 1991, Ralph Shoberg maintained grazing

permits with the DSL on trust lands within the Sula. Shoberg

grazed cattle on his permit areas. In January 1991, Shoberg

transferred his permits to George R. Madden (Madden). Madden

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subsequently changed from grazing cattle to grazing domestic sheep.

A public controversy arose regarding Madden's grazing of domestic

sheep upon trust lands because of the potential adverse affects on

the bighorn. Evidence in the record suggests that mixing domestic

sheep and bighorn can decimate the bighorn population through the

spread of pneumonia and/or other diseases to the bighorn. On

October 31, 1991, under the threat of a lawsuit, the DSL agreed to

prepare an environmental review of the permits pursuant to MEPA.

Prior to 1991, the DSL had not prepared an environmental assessment

(EA) or environmental impact statement (EIS) on Madden's cattle

grazing permits.

The DSL issued an EA on July 17, 1992 which included six

alternatives. Appellants, private parties and state entities,

submitted comments to the DSL about the EA. On September 30, 1992,

the DSL issued a revised EA. On December 30, 1992, DSL

commissioner Dennis Casey issued a decision notice which ended the

EA process and allowed Madden's grazing leases to remain in effect

until 1999, the leases' existing renewal date. With the intent to

reduce the threat of transferring disease from the domestic sheep

to the bighorn, the decision notice required certain measures, such

as sheep dogs and grazing dates. Because Casey approved the

revised EA, MEPA requirements were satisfied and no EIS was

required.

On May 12, 1993, the Sportsmen filed the instant action in the

District Court. On August 20, 1993, Respondents moved to dismiss

the Sportsmen's claims pursuant to Rule 12(b) (6), M.R.Civ.P., for

3
failure to state a claim upon which relief could be granted. On

November 23, 1993, the District Court stated that it intended to

treat this motion as a Rule 56, M.R.Civ.P., motion for summary

judgment. On August 10, 1994, the District Court granted

Respondents' motion for summary judgment on all counts. This

appeal followed.

The Sportsmen present three issues for review:

1 . Did the District Court err in holding that the DSL complied

with MEPA?

2 . Does the DSL have a fiduciary duty towards Montana's wildlife

which, under the facts of the instant case, requires the protection

of the bighorn by implementing license conditions to protect the

bighorn?

3 . Did the District Court improperly refuse to consider

affidavits, exhibits, and depositions submitted by the Sportsmen in

support of their claims that the DSL unlawfully and arbitrarily

violated MEPA and its trust duties toward wildlife?

STANDARD OF REVIEW

We review summary judgment orders de nova. Spain-Morrow Ranch

Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32.

Summary judgment is proper only when no genuine issue of

material fact exists and the moving party is entitled to

a judgment as a matter of law. Rule 56(c), M.R.Civ.P.

The initial burden is on the moving party to establish

that there is no genuine issue of material fact; and once

met, the burden shifts to the party opposing the motion

to establish otherwise.

Spain-Morrow Ranch, 872 P.2d at 331-32 (citations omitted).

We review MEPA decisions to determine "whether the record

establishes that the agency acted arbitrarily, capriciously, or

unlawfully." North Fork Preservation Assoc. v. Dept. of State

Lands (1989), 238 Mont. 451, 458-59, 770 P.2d 862, 867. In North

Fork we divided our review into two parts: Whether the agency

4
acted unlawfully, and whether the agency acted arbitrarily or

capriciously. North Fork, 778 P.2d at 867.

To evaluate the lawfulness of the DSL's actions, we look to

the laws and regulations governing the DSL's MEPA review process.

North Fork, 770 P.2d at 067. We therefore review §§ 75-l-101 et

seq., MCA, and §§ 26.2.641 et seq., ARM. Because MEPA is modeled

after the National Environmental Policy Act (NEPA), when

interpreting MEPA, we find federal case law persuasive. Kadillak

v. Anaconda Co. (1979), 184 Mont. 127, 137, 602 P.2d 147, 153.

DISCUSSION

NEPA requires that an agency take a "hard look" at the

environmental impacts of a given project or proposal. See Kleppe

v. Sierra Club (1976), 427 U.S. 390, 410, n.21, 96 S.Ct. 2718,

2730, 49 L.Ed.2d 576, 590. NEPA is essentially procedural; it does

not demand that an agency make particular substantive decisions.

Stryker's Bay Neighborhood Council v. Karlen (19801, 444 U.S. 223,

227-28, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 433, 437. MEPA requires

that an agency take procedural steps to review "projects, programs,

legislation, and other major actions of state government

significantly affecting the quality of the human environment" in

order to make informed decisions. Section 75-l-201(1) (b) (iii),

MCA; See § 26.2.643, ARM.

Both parties ask us to determine whether an environmental

review document is necessary for the renewal or assignment of a

grazing lease. Pursuant to § 77-6-205(l), MCA, a grazing lease

holder:

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who has paid all rentals due the state or who has

voluntarily terminated a lease under 77-6-116 is entitled

to have the lease renewed for a period not to exceed the

maximum lease period provided in 77-6-109 at any time

within 30 days prior to its expiration or within 30 days

following voluntary termination if no other applications

for lease of the land have been received 30 days prior to

the expiration of the lease or within 30 days following

voluntary termination. The renewal must be at the full

market rental rate established by the board[, taking into

account recommendations of the state land board advisory

council,] for the renewal period and subject to any other

conditions at the time of the renewal imposed by law as

terms of the lease.

Section 77-6-208, MCA, provides for assignment of leases to state

lands. The DSL rules regarding the general requirements of the

environmental review process state that:

(5) The agency is not required to prepare an EA or an

EIS for the following categories of action:

i,j . :

ministerial actions: actions in which the agency

exercises no discretion, but rather acts upon a given

state of facts in a prescribed manner . . . .

Section 26.2.643(S), ARM. The Sportsmen correctly argue that the

renewal and assignment of a lease, permit, license, etc., pursuant

to § 26.2.642(l), ARM, involves state action. Generally, state

action significantly affecting the quality of the human environment

requires MEPA analysis. See § 75-l-201(1) (b) (iii), MCA. However,

where a license renewal or assignment merely maintains the status

quo we conclude that the renewal or assignment of a grazing lease

pursuant to § 77-6-205(l), MCA, is a ministerial action that

requires no environmental analysis. See NRDC v. Berklund (D.C.

Cir. 19791, 609 F.2d 553, 558. Absent a change in use or condition

which significantly affects the quality of the human environment,

the renewal or assignment of a grazing lease or permit is generally

6
a ministerial act and does not trigger MEPA analysis.

However, if a changed use or condition under a state lease or

permit significantly affects the quality of the human environment,

then the state's allowing that change in use or change in condition

is a major state action pursuant to MEPA, triggering the MEPA

review process. The United States Supreme Court has observed that

t'major federal actions" include the "expansion or revision of

ongoing programs." Andrus v. Sierra Club (1979), 442 U.S. 347, 363

n.21, 99 S.Ct. 2335, 2344, 60 L.Ed.2d 943, 955; citing S. Rep. No.

91-296, p.20 (1969). "[11f an ongoing project undergoes changes

which themselves amount to 'major Federal actions,' the operating

agency must prepare an EIS." Upper Snake River Chapter of Trout

Unlimited v. Hodel (9th Cir. 19901, 921 F.2d 232, 234.

The DSL correctly argues that if an agency does not have an

affirmative statutory duty to act, the failure to act does not

trigger NEPA. Defenders of Wildlife v. Andrus (D.C. Cir. 1980),

627 F.2d 1238, 1248-50. Kowever , if an agency's duty to avoid

environmental harm is mandatory, then the agency's inaction

constitutes an action for NEPA purposes. See Sierra Club v. Hodel

(10th Cir. 1988), 848 F.2d 1068, 1090-91. Based on the

requirements of §§ 77-6-201(2), -206 and -210, MCA, the DSL has the

duty to manage agricultural, grazing, and other surface leased land

to protect the best interests of the state, under the multiple use

concept, which necessarily includes considering consequences to

wildlife and the environment. See § 77-l-203, MCA. When the DSL

is made aware of changes in the existing conditions or uses

7
relating to an operation under a lease or permit, and those changes

have the potential to significantly affect the quality of the human

environment, then the DSL must, pursuant to MEPA, evaluate those

changes for significant impacts. In the instant case substantial

questions remain as to what impact grazing domestic sheep will have

on the bighorn population.

The 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.

LaFlamme v. Federal Energy Regulatory Commission (9th Cir. 1988),

852 F.2d 389, 397.

Particularly in light of MEPA's statutory goal of promoting

efforts which will prevent or eliminate damage to the environment,

S 75-l-102, MCA, and the conflicting evidence in the record, the

DSL failed to sufficiently explain and substantiate its December

30, 1992 decision to allow Madden to continue grazing sheep

adjacent to the bighorn range without proceeding with an EIS.

Further, it failed to sufficiently evaluate the significance of the

impacts that domestic sheep would cause to the bighorn. Both the

revised EA and the DSL's brief to this Court concede that the

revised EA did not address the significance of impacts. An EIS

must be prepared for state actions that significantly affect the

quality of the human environment. Section 75-l-201(1) (b) (iii),

MCA. "In order to implement [MEPAI, the agency shall determine the

significance of impacts associated with a proposed action."

Section 26.2.644(l), ARM. The Sportsmen correctly point out that

the DSL did not complete MEPA's mandatory "significant impacts"

8
analysis. Because the DSL did not in the first instance adequately

determine and consider the significance of the impacts associated

with grazing domestic sheep on lands adjacent to bighorn, the DSL

acted arbitrarily and capriciously and unlawfully when it concluded

that changes to Madden's grazing plan reduced the probable

significant impact to the bighorn.

The District Court was incorrect in agreeing with the DSL that

it was not required to engage in a significant impacts analysis on

the theory that it was doing a voluntary as opposed to a mandatory

EA. Based on our above holding, full compliance with MEPA is

mandated in this case. Furthermore, we find no provisions in MEPA,

the administrative rules, or case law providing for partial

compliance with the law when compliance with the law is purportedly

voluntary.

We do not here decide whether grazing domestic sheep adjacent

to the Sula bighorn range is appropriate or not, but rather,

whether the DSL's environmental review was sufficient. In the

instant case, given the potential adverse impact on the bighorn,

the change from grazing cattle to grazing sheep altered the

existing permit to such an extent that allowing the change

constituted a major state action. Thus, MEPA was triggered by

DSL's awareness of the change from grazing cattle to grazing sheep

adjacent to bighorn range. See Andrus, 442 U.S. at 363 n.21.

Since the DSL failed to engage in a significant impacts analysis,

the matter must be remanded for preparation of an EIS. See Sierra

Club v. U.S. Forest Service (9th Cir. 1988), 843 F.2d 1190. In

9
Sierra Club, the Forest Service decided not to prepare an EIS with

regard to certain timber sales. The plaintiffs challenged that

decision because the environmental assessment did not adequately

discuss the relevant criteria in the federal regulations. The

Ninth Circuit held that the standard for determining "if an action

will significantly affect the quality of the human environment is

whether the plaintiff has alleged facts which, if true, show that

the . . . [action (or inaction)] may significantly degrade some

human environmental factor." Sierra Club, 843 F.Zd at 1193;

quoting Foundation for North Am. Wild Sheep v. U.S. Dep't of

Agriculture (9th Cir. 1982), 681 F.2d 1172, X177-78. "A

determination that significant effects on the human environment

will in fact occur is not essential. . . If substantial questions

are raised whether a project may have a significant effect upon the

environment, an EIS must be prepared." Id.; quoting Foundation,

681 F.2d at 1178. The Sierra Club court concluded:

Because substantial questions have been raised concerning

the potential adverse effects of harvesting these timber

sales, an EIS should have been prepared. The Forest

Service's decision not to do so was unreasonable. . . .

It failed to account for factors necessary to determine

whether significant impacts would occur. Therefore its

decision was not "fully informed and well-considered."

Endangered Species, 760 F.2d at 986 (quoting Vermont

Yankee, 435 U.S. at 558, 98 s.ct. at 1219). [Other

citations omitted.]

Sierra Club, 843 F.2d at 1195. Although the standard is now

arbitrary and capricious rather than "reasonable," the Ninth

Circuit's remedy of remanding for an EIS is still appropriate. The

DSL's own records evidence the potential harm in changing from

cattle to sheep in this particular area. Based on this record of

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conflicting evidence, substantial questions remain and the DSL must

comply with the requirements of MEPA and complete an EIS. It must

look further at the grazing license and grazing practices to

determine the significance of allowing a change from grazing cattle

to grazing sheep. Implicit in the requirement that an agency take

a hard look at the environmental consequences of its actions is the

obligation to make an adequate compilation of relevant information,

to analyze it reasonably and, perhaps most importantly, not to

ignore "pertinent data." See Sierra Club v. United States Army

Corps of Engineers (2nd Cir. 19821, 701 F.2d 1011, 1029. The DSL

did not follow MEPA's implicit mandate that it take a hard look by

completing a significant impacts analysis: The District Court

therefore erred in granting summary judgment to Respondents.

It is particularly important that the DSL establish a full and

complete record on review. The United States Supreme Court has

addressed an agency's failure to create an adequate record:

If the record before the agency does not support the

agency action, if the agency has not considered all

relevant factors, or if the reviewing court simply cannot

evaluate the challenged agency action on the basis of the

record before it, the proper course, except in rare

circumstances, is to remand to the agency for additional

investigation or explanation.

Florida Power and Light Co. v. Lorion (1985), 470 U.S. 729, 744,

105 S.Ct. 1598, 1607, 84 L.Ed.Zd 643, 656. Along these lines, the

Hodel court concluded that:

[wlithout an administrative record, courts are left to

rationalize the agency's decision -- a form of review

which abandons standards in favor of predilections.

"This kind of speculation regarding the basis for an

agency's decision not to prepare an EIS is precisely what

NEPA was intended to prevent."

11
Hod&, 848 F.2d at 1093; quoting LaFlamme v. F.E.R.C. (9th Cir.

1988), 842 F.2d 1063, 1070. Due to the lack of a proper

significant impacts analysis, the record does not uphold the DSL's

decision. The record essentially consists only of the revised EA

and Decision Notice. This put the District Court in the untenable

position of basing its review on a meager administrative record.

Madden suggests that if we adopt the Sportsmen's argument we

will be imposing a requirement that a full EIS be completed "on

every renewal and assignment of every license and lease of state

land." We are not here imposing such a requirement with regard to

lease renewals or assignments. Under the facts of this case, it is

not the lease renewal or assignment that triggers MEPA analysis.

Rather, it is the DLS's awareness of Madden's change of use from

grazing cattle to grazing sheep adjacent to bighorn range in the

face of evidence that such a change in use may adversely affect the

bighorn. An EIS is required only when there is a substantial

question as to whether the change of use may have a significant

effect upon the human environment. We conclude that once the DSL

became aware of this change in use, the DSL's allowing the change

of use constituted a major governmental action and its duty to

fully comply with MEPA was triggered. In the instant case, the DSL

failed to satisfy its MEPA duties when it rendered a decision

without adequately considering the significant impacts of its

actions in accordance with 5 75-l-201, MCA. MEPA does not require

that agency actions not impact the human environment. MEPA does

require that agencies assess their actions so as to make an

12
informed decision. A corollary to an informed decision is public

education and input.

Even after fully complying with MEPA procedure, an agency may

determine that an action will result in significant impacts and

then, nonetheless, approve the action under MEPA. The agency,

however, is then accountable for its decision.

An "agency must supply a convincing statement of reasons

why potential effects are insignificant." The

Steamboaters v. F.E.R.C. [9th Cir. 19851, 759 F.2d

[1382,1 1393. While it is true that mitigation measures

can justify an agency's conclusions that a project's

impact is not significant, an agency must explain exactly

how the measures will mitigate the project's impact. Id.

at 1394; Jones v. Gordon, 792 F.2d at 829.

LaFlamme, 852 F.2d at 399.

In the instant case, the DSL did not engage in "significance

of impacts" analysis. Accordingly it was unable to take the

requisite hard look and it is impossible for this Court or the

District Court to determine whether the adverse impacts have been

compensated for or not.

Finally, the goal of maximizing income derived from school

trust lands does not exempt the DSL or any agency from complying

with applicable environmental laws. The DSL strenuously argues

that its ability to modify the leases1 at issue is limited by its

state land trust duty to maximize the income derived from trust

lands. In addition, the Seeley Lake and Brady School Districts and

the Montana Stockgrowers, Woolgrowers, and Bitterroot Stockgrowers

1 The real issue here is not whether the DSL can modify a

lease but rather can the DSL, without conducting a significant

impacts analysis, allow a lessee to unilaterally change the use

from cattle to sheep adjacent to bighorn range.

13
Associations, filing as amicus curiae in support of the DSL,

conclude that the state's trust obligation to secure the greatest

dollar value for school trust lands is predominant. School trust

lands need not be used exclusively for grazing or agriculture. See

Title 77, Chapter 1, Part 4, 5 77-6-209, and Title 77, Chapter 6,

MCA. For instance, the Sportsmen suggest that there is precedent

for the DSL and the Department of Fish, Wildlife, and Parks to

agree to a plan whereby a portion of Sula bighorn hunting permit

fees could go to the school trust. This would generate funds for

the school trust and, assuming such hunting is ecologically sound,

protect the bighorn herd. Finally, we note that neither the DSL

nor the amicus curiae suggest why or how domestic sheep grazing

generates more money for the school trust than cattle grazing. The

Sportsmen and the record (sparse as it is) suggest that alternative

uses to grazing may increase the value earned for the trust.

Income is "a" consideration--not "the" consideration regarding

school trust lands: Maximizing income is not paramount to the

exclusion of wildlife or environmental considerations in the MEPA

context. Sections 75-l-102, -103, and -105, MCA.

[ilt is the continuing responsibility of the state of

Montana to use all practicable means consistent with

other essential considerations of state policy to improve

and coordinate state plans, functions, programs, and

resources to the end that the state may: (a) fulfill the

responsibilities of each generation as trustee of the

environment for succeeding generations.

Section 75-l-103(2), MCA (emphasis added). The DSL, and not this

Court, is in the best position to consider alternatives as part of

its MEPA analysis.

14
MEPA requires that an agency be informed when it balances

preservation against Utilization of our natural resources and trust

lands. The DSL may not, as here, reach a decision without first

engaging in the requisite significant impacts analysis. The record

in its present form, convinces us that the DSL by not first

conducting an appropriate analysis under MEPA, arbitrarily,

capriciously and unlawfully allowed Madden to change use from

grazing cattle to grazing sheep adjacent to bighorn range.

Therefore, we conclude that the DSL must complete an EIS to

comprehensively review the environmental impacts resulting from

this change of use adjacent to bighorn range.

Because of our holding in this issue, we need not consider

issues two and three.

Reversed and remanded to the District Court for an order

requiring preparation of an EIS.

We concur.

Chief Justice

Justices

15
Justice Karla M. Gray, dissenting.

I must respectfully dissent from most of the Court's opinion

and from the result it reaches. My main problems with the opinion

are its overbreadth and its lack of clarity concerning which MEPA

statutes or regulations the Court determines DSL actually violated

here. If the Court made even a passing analysis of Montana law in

resolving this case in favor of appellants, I undoubtedly would

join in the opinion; I cannot do so as the opinion is written.

I agree that the standard of review of the MEPA decision at

issue in this case is the "unlawful or arbitrary and capricious"

standard set forth in North Fork. Unfortunately, the Court does

not clearly apply that standard in resolving this case.

I also agree that, in Kadillak, we stated that it was

appropriate to look to federal interpretations of NEPA in

interpreting MEPA. However, nothing in Kadillak or any other

source authorizes this Court to dispense altogether with applying

Montana law and merely apply broad statements from selected federal

cases to the factual scenario before us without any discussion of

how and why those statements are applicable here. The result of

this approach by the Court is a lack of analysis regarding which

particular provisions of MEPA and the controlling regulations have

been violated and a total lack of guidance to state agencies

attempting to comply with the critically important MEPA and to

state courts attempting to ensure such compliance. I cannot agree.

16
The lack of specificity in the opinion makes it difficult to

craft an appropriate dissent. Thus, I offer only the following

concerns and questions about the authorities on which the Court

relies in resolving this case.

The Court's primary thesis about MEPA appears early in--and

permeates--its opinion. According to the Court, the guiding

premise of MEPA is that "Iglenerally, state action significantly

affecting the quality of the human environment requires MEPA

analysis." Section 75-l-201(1) (b) (iii), MCA, is cited for this

proposition. The problem with the Court's approach is that

"generalizing" about this pivotal statute is both misleading and

erroneous.

The statute actually says that, "to the fullest extent

possible[,l . . all agencies of the state . . shall include in

every recommendation or report on proposals for projects,

legislation, and other major actions of state government

significantly affecting the quality of the human environment" a

detailed statement regarding environmental impacts and effects.

Section 75-l-201(1) (b) (iii), MCA. The Court does not analyze the

meaning of "to the fullest extent possible." More importantly,

nowhere does the Court establish that any "recommendation or report

on a proposal" for a major action of state government is at issue

in this case.

Most important of all, the Court never bothers to apply the

definition of "action," vis-a-vis § 75-l-201(1) (b) (iii), MCA, which

is found in § 26.2.642(l), ARM, to DSL's "allowing" of a change of

17
use after a grazing permit is in place and the change of use has

occurred. An "action," insofar as it is relevant here, is "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. Section 26.2.642(l), ARM. As the Court

concedes, no activity involving the issuance of a lease is at issue

here. Thus, this straightforward definition simply does not

support the Court's conclusion that "if a changed use or condition

. . . significantly affects the quality of the human environment,

then the state's allowing that change in use or change in condition

is a major state action pursuant to MEPA, triggering the MEPA

review process." Nor does the Court provide any other support--

under MEPA or otherwise--for this proposition.

Instead, the Court cites to one United States Supreme Court

case and one Ninth Circuit Court of Appeals case which it

apparently believes support its conclusion. Neither case does so

even through the broad language quoted, much less through an actual

application of those cases to the facts presently before us.

It is true that in Andrus v. Sierra Club (1979), 442 U.S. 347,

99 S.Ct. 2335, 60 L.Ed.2d 943, the United States Supreme Court

observed that major federal actions include the "expansion or

revision of ongoing programs;" it did so in the context of

resolving the issue of whether appropriation requests constitute

"proposals for major federal actions" under NEPA. It concluded

that appropriation requests were requests to fund action already

proposed, rather than proposals for major government actions to be

18
taken in the future. Sierra Club, 99 S.Ct. at 2343. Sierra Club

has no direct applicability here; it leaves unanswered, as does

this Court, the specific question of what constitutes an expansion

or revision of an ongoing program. Sierra Club does point out,

however, that the "proposal" language in NEPA--like that in MEPA--

is intended to have some meaning, a meaning never addressed by this

Court in the present case. Indeed, this Court's purpose in quoting

from Sierra Club--other than to insert broad and inapposite

language--remains a mystery.

Similarly, the Court's reliance on Upper Snake River Chapter

of Trout Unlimited v. Hodel (9th Cir. 1990), 921 F.2d 232, is

misplaced. While that opinion does state that "if an ongoing

project undergoes changes which themselves amount to 'major Federal

actions,' the operating agency must prepare an EIS," the Ninth

Circuit was referring to the definition of "major Federal action"

contained in NEPA. Whatever the definition under NEPA, the case

before us is governed initially by the specific definition of

"action" contained in § 26.2.642, ARM. Even accepting the Ninth

Circuit's broad language, however, this Court does not apply the

quoted language to the facts before us. It does not specify &,

in this case, a change in an ongoing project exists, much less how

such a change amounts to state action as "action" is defined in §

26.2.642(l), ARM, or to "major" state actions as the term is used

in 5 75-l-201(1) (b) (iii), MCA.

Moreover, I note that in Uuper Snake River, the Ninth Circuit

concluded, applying the NEPA definitions, that the Bureau of

19
Reclamation's reduction of the flow of water from the Palisades Dam

on the South Fork of the Snake River in Idaho was not a major

federal action. Uooer Snake River, 921 F.2d at 234. It reached

that conclusion in advance of any consideration of whether the

action at issue had a significant effect on the environment and,

indeed, declined to reach the "significant effect" issue "because

the reduction does not constitute a 'major Federal action' within

the meaning of the statute." Upper Snake River, 921 F.2d at 234.

Thus, to the extent Uoner Snake River has any application here, it

clarifies that a court must first determine whether the action at

issue comes within the controlling definitions of "major action;"

only when that question is answered in the affirmative may the

court proceed to questions involving the significance of any

impacts or effects from the action at issue. In the case before

US, the Court essentially turns the questions around and becomes

mired in the "significance" questions prior to having applied the

controlling definitions to determine whether the "action" at issue

triggers MEPA analysis at all.

Finally, with regard to Uooer Snake River, I reiterate that

the Ninth Circuit concluded that the Bureau of Reclamation's

substantial reduction in water flow from the Palisades Dam did not

constitute a major federal action under NEPA. How, then, even

assuming identical controlling definitions, can DSL's "nonaction"

in this case constitute a major action of state government? The

Court does not explain.

The Court notes its agreement with DSL's argument that, if an

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agency does not have an affirmative duty to act, the failure to act

does not trigger NEPA or, presumably, MEPA. It then quotes from

Sierra Club v. Hodel (10th Cir. 1988), 848 F.2d 1068, for the

proposition that "if an agency's duty to avoid environmental harm

is mandatory, then the agency's inaction constitutes an action for

NEPA purposes." The Court does not explain how the case relates to

the situation before us and it is my view that the case is, like

those referenced above, inapplicable here.

In Sierra Club, the agency's mandatory environmental duty did

not spring from NEPA itself. There, the Tenth Circuit determined

that the Secretary's nondegradation duty toward wilderness study

areas was mandatory under the Federal Land Policy Management Act of

1976. Sierra Club, 848 F.2d at 1075. In addition, the court

determined that, even if the Secretary's activity amounted to

"nonaction" under the language of NEPA 5 102(2) (c), requiring an

EIS in advance of "major Federal actions," a Council on

Environmental Quality (CEQ) regulation specifically made the

Secretary's failure to act a "major federal action" for NEPA

purposes. Sierra Club, 848 F.2d at 1091.

No regulation corresponding to the CEQ regulation at issue in

Sierra Club--which made the "nonaction" a major federal action

triggering NEPA--is involved in this case. Thus, I cannot see how

Sierra Club has any application here or how it supports in any way

the Court's conclusion that "[wlhen the DSL is made aware of

changes in the existing conditions or uses relating to a lease or

permit, and those changes have the potential to significantly

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affect the quality of the human environment, then the DSL must,

pursuant to MEPA, evaluate those changes for significant impacts."

Under the Court's decision in this case, what are state

agencies or district courts to make of the clear thrust of the

regulations implementing MEPA which focus on MEPA being triggered

for "proposed actions"? What, for example, is the meaning of

§ 26.2.641, ARM, captioned Policy Statement Concernins MEPA Rules,

which states that in order to fulfill the statutorily-stated

purpose of MEPA, agencies must conform to the rules at §§ 26.2.642

et seq., ARM, "prior to reaching a final decision on pronosed

actions covered by MEPA"? Or the definition of an EA at 5

26.2.642(g), ARM, as an analysis of a "proposed action to determine

whether an EIS is required" or to serve one of the other purposes

described in § 26.2.643(2), ARM? Or the general requirements of

the environmental review process set forth in § 26.2.643, ARM,

which repeatedly specify "proposed action"? Or, critically, the

requirement in § 26.2.644, ARM, setting forth the criteria to be

used in determining "the significance of impacts associated with a

pronosed action." How and when does a nonaction or a nondecision

after a change of use in a state grazing permit come within the

"proposed action" language which permeates the controlling

regulations and the legislative policy statement in 5 75-l201(l) (b) (iii), MCA? The Court never explains, and I submit that

the Court's decision today provides state agencies with no basis

for evaluating when, under MEPA and the controlling regulations,

MEPA will be triggered.

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Finally, I feel compelled to comment on the ease with which

the Court concludes not only that MEPA was triggered, but also that

an EIS must be prepared. Again, the Court relies for its

conclusion on broad statements from United States Courts of Appeal

decisions holding that an EIS is required whenever a person alleges

facts which, if true, show that the action/inaction “may”

significantly degrade some human environmental factor. Again, no

Montana statutes or regulations are cited or applied.

Specifically, for example, the Court does not explain how the cases

upon which it relies square with the clear language in E; 75-I-201,

MCA, that a detailed environmental statement is required for

proposals for major state actions "siqnificantlv affectinq the

quality of the human environment." Nor does it address in any way

the criteria set forth in 5 26.2.643, ARM, for when a state agency

must prepare an EIS, in particular the mandate that an EIS is

required when "the proposed action is a major action of state

government sisnificantlv affectinq the quality of the human

environment." Section 26.2.643(l) (b), ARM. How does the

"significantly affecting" language in the Montana statute and

regulation support the Court's conclusion that an EIS is required

whenever an action (or, according to the Court, inaction) mav

significantly affect the environment? Are state agencies to

totally disregard MEPA statutes and regulations hereafter? The

Court does not explain.

I close by restating here what I stated at the outset: the

troubling aspects of the Court's opinion in this case are its lack

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