DA 08-0368

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 189N

THE RATTLESNAKE COALITION, LOREEN FOLSOM,

WILLIAM HOLLENBAUGH and DANIEL JENSEN,

Plaintiffs and Appellants,

v.

CITY OF MISSOULA, STATE OF MONTANA, and

MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY,

Defendants and Appellees.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV 05-1087

Honorable Douglas G. Harkin, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Carolyn Kay Vinci, Attorney at Law; Missoula, Montana

Craig Murdock, Attorney at Law; San Francisco, California

For Appellees:

Steve Bullock, Montana Attorney General; Helena, Montana

John F. North, Carol E. Schmidt; Special Assistant Attorneys General;

Helena, Montana

James P. Nugent, City Attorney; Missoula, Montana

Submitted on Briefs: April 15, 2009

Decided: May 27, 2009

Filed:

__________________________________________

Clerk

May 27 2009
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Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2 In filing this suit for injunctive and mandatory relief, the Rattlesnake Coalition

(hereinafter “the Coalition”) argued that the 1999 Wastewater Treatment Plan’s

environmental review document and the Montana Department of Environmental

Quality’s (MDEQ) 2007 Environmental Assessment (EA) failed to comply with the

Montana Environmental Policy Act (MEPA), § 75-1-101 et seq., MCA. In November,

2007, the District Court denied the Coalition’s Motion for Partial Summary Judgment

and in July, 2008, granted summary judgment in favor of the City of Missoula

(hereinafter “the City”) and the MDEQ, concluding the Coalition’s challenge to the 1999

review document is barred by the doctrine of laches. It further concluded the 2007 EA

complied with the MEPA, § 75-1-101 et seq., MCA. The Coalition appeals from the July

2008 order.

¶3 In its order granting summary judgment, the District Court found that the 2007 EA

prepared for the City’s proposed sewer project was a stand-alone document, therefore the

challenge to the EA prepared in 1999 was either barred by laches, (see Montana
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Wilderness Ass’n v. Fry, 310 F. Supp. 2d 1127, 1140) (D. Mont. 2004) for a discussion of

the laches analysis); or, since the projects addressed in the 1999 EA are now mostly

completed, a controversy no longer exists regarding the 1999 EA, and the issue was

therefore moot.

¶4 As to the 2007 EA, the Coalition argued that it violated MEPA because it failed to:

(1) address cumulative impacts, and (2) analyze alternatives. The District Court

concluded the Coalition had failed to raise any genuine issues of material fact; that the

2007 EA complied with the MEPA given that MDEQ had addressed cumulative impacts

within the 2007 EA and had addressed five alternatives to the proposed action, including

an extensive in-depth analysis of on-site treatment that the Coalition had advocated.

¶5 In its summary judgment order of July 2, 2008, the court references its November

29, 2007 Order, which concludes that the Coalition had “not met their burden of proof”

[to demonstrate that the EA is inadequate] and that “MDEQ’s conclusion that there are no

significant adverse impacts of the sewer project and, therefore, that an environmental

impact statement is not required cannot be said to be arbitrary, capricious, or unlawful.”

See Friends of the Wild Swan v. Dept. of Nat. Resources & Conservation, 2000 MT 209,

¶ 27, 301 Mont. 1, 6 P.3d 972.

¶6 We have determined it is appropriate to decide this case pursuant to our Order of

February 11, 2003, amending Section 1.3 of our 1996 Internal Operating Rules and

providing for memorandum opinions. It is manifest on the face of the briefs and the

record before us that the appeal is without merit because the District Court correctly
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concluded that there are no genuine issues as to material facts. Further, the District Court

correctly interpreted settled Montana law and determined that the defendants were

entitled to judgment as a matter of law.

¶7 We affirm the judgment of the District Court.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ PATRICIA COTTER