IN THE SUPREME COURT OF THE STATE OF MONTANA 

MISSOULA CITY-COUNTY AIR 

POLLUTION CONTROL BOARD, 

Petitioner and Appellant, 

v. 

BOARD OF ENVIRONMENTAL REVIEW, 

Respondent and Respondent, :/ .. . 

and 

STONE CONTAINER CORPORATION, 

Intervernor and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of 

Missoula, The Honorable Ed McLean, Judge Presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert L. Deschamps, 111, County Attorney; Martha E. McClain, Deputy 

County Attorney, Missoula, Montana 

William A. Rossbach, Missoula, Montana 

For Respondents: 

Honorable Joseph P. Mazurek, Attorney General; W. D. Hutchison, Assistant 

Attorney General, Helena, Montana 

Jeanne M. Bender and W. Scott Mitchell, Holland and Hart, Billings, Montana 

Cindy Younkin, Board of Environmental Review, Helena, Montana 

Filed: 

Heard and Submitted: March 1 1, 1997 

Decided: April 17, 1997 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The Missoula City-County Air Pollution Control Board (Local Board) appeals a 

decision of the Fourth Judicial District Court, Missoula County, dismissing its petition for 

judicial review and declaratory judgment. We reverse and remand for further proceedings 

consistent with this Opinion. 

The issues are: 

1. Did the District Court err in ruling that the Local Board does not have standing to 

challenge the validity of administrative rules adopted by the Board of Environmental Review 

(State Board)? 

2. Did the court err in ruling that the Local Board's first amended petition was not 

timely filed? 

3. Did the court err in ruling that the State Board's September 1994 final order was 

moot? 

Stone Container Corporation operates a krafi pulp mill near Missoula, Montana. The 

Local Board is the local air pollution authority for the City and County of Missoula, 

approved by the State Board pursuant to 5 75-2-301, MCA. The Local Board does not have 

general regulatory authority over Stone Container, however, because Stone Container is an 

air pollution source that emits more than 250 tons of regulated pollutants per year. See tj 75- 

2-30 1 (4)(c), MCA. Instead, the Montana Department of Environmental Quality, formerly 

the Montana Department of Health and Environmental Sciences (Department), is responsible 
for issuing air quality permits to Stone Container. The State Board is responsible for 

adopting, amending, and repealing rules for the administration, implementation, and 

enforcement of the Clean Air Act of Montana. See 8 75-2- 1 1 1, MCA. 

This case originated fiom a dispute between Stone Container and the Department over 

modifications the Department made to the air quality permit for Stone Container's kraft pulp 

mill. In December 1992, Stone Container appealed to the State Board concerning changes 

by the Department in the most recent permit the Department had issued for the mill. 

The Department and Stone Container subsequently stipulated to the resolution of all 

but one of the provisions of the permit which Stone Container had appealed to the State 

Board. The remaining unresolved issue was the Department's inclusion in the permit of a 20 

percent opacity limit for emissions fi-om recovery boiler number 4 at the kraft pulp mill. 

Opacity is defined as the degree, expressed in percentage, by which emissions reduce the 

transmission of light and obscure the view of an object in the background. ARM 

17.8.101(27). 

Stone Container petitioned the State Board for a declaratory ruling interpreting ARM 

16.8.1404 (now ARM 17.8.304), Visible Air Contaminants, and its application to recovery 

boiler number 4 at the pulp mill. The Local Board petitioned to intervene in the action before 

the State Board. Stone Container opposed the petition to intervene, and the State Board 

subsequently denied the petition. 
After holding a hearing on Stone Container's petition for a declaratory ruling, the State 

Board voted to interpret ARM 16.8.1404 to allow Stone Container a 35 percent opacity limit 

for recovery boiler number 4. The State Board entered its written order so ruling on 

September 16, 1994. On October 6, 1994, the Department petitioned for rehearing. 

On October 17, 1994, the Local Board, acting as a "person" aggrieved by the State 

Board's September 16 order, filed a petition for judicial review in the Fourth Judicial District 

Court. The court granted Stone Container's motion to intervene in the judicial review 

proceeding. In addition, the court granted the State Board's motion to stay the proceeding 

pending the outcome of an administrative rule amendment process then being conducted by 

the State Board. 

The State Board adopted amendments to the administrative rules in August 1995. The 

amendments made haft pulp mills (Stone Container was the only haft pulp mill in Montana) 

exempt from ARM 16.8.1404. The amendments provided opacity standards and monitoring 

requirements in amendments to ARM 16.8.141 3 and 16.8.1429 (now ARM 17.8.302 and 

17.8.321). 

Stone Container moved to withdraw its petition which was then still pending before 

the State Board. Stone Container and the Department also stipulated to request that the State 

Board withdraw its September 16, 1994 order. At its December 1995 meeting, the State 

Board voted to dismiss Stone Container's petition. 
Meanwhile, on November 7, 1995, the Local Board filed in the District Court its first 

amended petition for judicial review and declaratory judgment, seeking, in addition to 

judicial review of the State Board's September 16, 1994 order, a declaratory judgment that 

the amended rules were invalid. Stone Container moved the District Court to dismiss the 

amended petition pursuant to Rule 12(b)(6), M.R.Civ.P., for failure to state a claim upon 

which relief can be granted. The court granted the motion on grounds that the Local Board 

lacked standing to bring an action on behalf of the Missoula public to challenge the rulemaking procedures leading to the State Board's adoption of the challenged amendments. The 

court also ruled that the State Board's actions and final ruling in the administrative 

declaratory proceeding had been rendered moot by the 1995 amendments to the rules. It 

further ruled that the petition's request for judicial review of rule-making procedures was 

untimely. The Local Board appeals. As it did in District Court, Stone Container appears as 

an intervenor pursuant to Rule 24(a)(2), M.R.Civ.P. 

STANDARD OF REVIEW 

A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all 

well-pled allegations in the complaint. In considering the motion, the complaint must be 

construed in the light most favorable to the plaintiff, whose allegations of fact must be taken 

as true. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202,207, 900 P.2d 314, 317. 

The determination that a complaint does not state a claim upon which relief can be granted 
is a conclusion of law which this Court reviews to determine whether the district court is 

correct. Lockwood, 900 P.2d at 3 17. 

ISSUE 1 

Did the District Court err in ruling that the Local Board does not have standing to 

challenge the validity of administrative rules adopted by the State Board? 

In Simon v. Eastern Ky. Welfare Rights Org. (1976), 426 U.S. 26,38,96 S.Ct. 1917, 

1924,48 L.Ed.2d 450,460, the United States Supreme Court defined standing as requiring 

(and assuming justiciability of the claim) that the plaintiff has shown an injury to himself that 

is likely to be redressed by a favorable decision. This Court has stated that the concept of 

standing arises fiom two different doctrines: (1) the discretionary doctrine aimed at 

prudently managing judicial review of the legality of public acts, and (2) the doctrine of 

constitutional limitations drawn fiom the "cases and controversies" definition of federal 

judicial power in Article I11 of the United States Constitution and the "cases at law and in 

equity" definition of state judicial power in Article VII, Section 4, Montana Constitution. 

Olson v. Department of Revenue (1986), 223 Mont. 464,469-70,726 P.2d 1162, 1166. 

With respect to the prudential basis for standing, this Court has stated that the trial 

court's discretion cannot be defined by hard and fast rules, and that the importance of the 

question to the public "surely is an important factor." Committee for an Effective Judiciary 

v. State (1984), 209 Mont. 105, 110, 679 P.2d 1223, 1226. The constitutional aspect of 

standing requires the plaintiff to show that plaintiff has been personally injured or threatened 
with immediate injury by the alleged constitutional or statutory violation. Olson, 726 P.2d 

On the question of whether the Local Board has standing to bring this action, the 

District Court stated: 

[Tlhe Missoula Control Board has failed to show it has standing to prosecute 

such an action. The Missoula Control Board asserts in its First Amended 

Petition that it has standing because it has the role of serving as an advocate 

for the interests of the citizenry of Missoula County regarding the quality of 

Missoula's air and is charged with the responsibility to protect such interests 

on behalf of the Missoula public in the State of Montana Air Quality Control 

Implementation Plan (commonly referred to as "SIP"). 

. . . In sum, a local control board is a legislatively-authorized, 

Department-approved agent of the Department, and as such has only those 

powers specifically allowed by the Legislature and specifically delegated to it 

by the Department. Nothing in either Part 3 of Title 75, Chapter 2, nor in the 

SIP, authorizes the local control board to prosecute an action in an advocacy 

role on behalf of the citizenry of Missoula County. 

The Local Board disagrees with that ruling. 

At the outset, the Local Board disputes the District Court's statement that it is an 

agency of the Department. The Local Board points out that the powers of a local air 

pollution control board are set forth at 5 75-2-301(3), MCA, as part of the Clean Air Act of 

Montana. The extent of the Local Board's responsibilities and the limits to its powers are 

contained in the Montana Air Quality Control Implementation Plan (SIP). The SIP provides: 

[The Local Board's] air pollution control program . . . is designed to 

mesh with and enhance the state air pollution control program. It is the 

purpose of the Missoula City and County air pollution control program to 

achieve and maintain such levels of air quality as will protect human health 

and safety and, to the greatest degree practicable, prevent injury to plant and 
animal life and property, foster the comfort and convenience of the people, 

promote the economic and social development of Missoula City and County 

and facilitate the enjoyment of the natural attractions of Missoula City and 

County. 

The federal Environmental Protection Agency (EPA) reviews SIPS and may impose 

sanctions, including withholding of federal highway transportation funds, if a local area fails 

to comply with the provisions of the SIP. 

Stone Container points out that the Local Board does not have general regulatory 

authority over its kraft pulp mill. It contends that, as a result, the Local Board has no 

standing to bring this action. The Local Board responds by citing its emergency regulatory 

powers under fj 75-2-402, MCA, and the Missoula City-County Air Pollution Control 

Program, which include authority to order persons causing or contributing to air pollution to 

immediately reduce or discontinue emissions, and which extend over Stone Container's kraft 

pulp mill. 

Moreover, the Local Board strongly disagrees with the idea that it must possess 

regulatory power over Stone Container to have standing to bring this action. It correctly 

states that a distinction exists between possessing regulatory authority over an entity and 

having standing to sue, under the above two-pronged standard, concerning administrative 

regulation of that entity. 

The State Board and Stone Container assert that the Local Board has made no 

showing, other than speculative, of present or threatened injury to it, personally. Stone 

Container points out that the personal stake requirement in standing analysis is dispositive, 

8 
citing Carter v. Montana Dept. of Transp. (1 995), 274 Mont. 39,905 P.2d 1 102. The Local 

Board replies, however, that injury need not be exclusive to the complaining party in order 

for that party to have standing. Sanders v. Yellowstone County (1996), 276 Mont. 1 16, 9 15 

P.2d 196. The Local Board contends, and we agree, that its interest in the effective discharge 

of the obligations imposed upon it by law is the equivalent of the personal stake which would 

support standing of a private citizen of the Missoula airshed. It is clear to this Court that a 

citizen of Missoula, as one who breathes the air into which Stone Container is expelling 

pollutants, would have standing to bring this action. The Local Board is a person within the 

definition of that word at 5 2-4-102(8), MCA, as "an individual, partnership, corporation, 

association, govenunental subdivision, agency, or public organization of any character." In 

the same way as a citizen of the Missoula airshed is more particularly affected by the State 

Board's act than is a citizen of another area, the interest of the Local Board is distinguishable 

from and greater than the interest of the public generally. 

As to the requirement of present or threatened injury, "[olther courts have held and 

we agree, that potential economic injury is sufficient to establish standing." Montana Human 

Rights Div. v. City of Billings (1982), 199 Mont. 434, 443, 649 P.2d 1283, 1288. For 

example, in Rosebud Cty. v. Dept. of Rev. (1993), 257 Mont. 306, 849 P.2d 177, a county's 

substantial interest in the protection of its tax base and its potential for economic harm in the 

valuation of heavy equipment was sufficient to give the county standing to challenge 

administrative rules. 
The Local Board argues that it faces potential economic harm fiom the additional 

expenses necessary to monitor, collect and analyze data and to develop a regulatory response 

which will ensure that Missoula air quality meets minimum federal standards in the face of 

increased air pollution from Stone Container. In its amended petition for judicial review and 

declaratory judgment, the Local Board points out that Missoula County has been designated 

a nonattainrnent area by the EPA for carbon monoxide and fine particulate, and that 

additional requirements are imposed upon Missoula County and the State by federal law as 

a result of this nonattainment status. The Local Board further points out that the State 

Board's action in reducing air quality standards applicable to Stone Container may require 

the Local Board to take additional regulatory and enforcement action against other pollution 

sources in the Missoula airshed to comply with state and federal particulate standards and 

SIP requirements. 

The issue here involved, air quality in Missoula, is indubitably an issue of importance 

to the Missoula public. Further, where two entities share regulatory power regarding air 

quality in one physical location, as do the Local Board and the Department in the Missoula 

airshed, the actions of one necessarily impact the other. We conclude that threatened injury 

to the Local Board has been established. We hold that the Local Board has standing to 

challenge the validity of administrative rules concerning air pollution applicable within its 

area of jurisdiction. 
We thus hold that the District Court erred in concluding that the Local Board did not 

have standing to bring this action. Therefore, this matter must be remanded to District Court 

for further proceedings. 

ISSUE 2 

Did the court err in ruling that the Local Board's first amended petition was not timely 

filed? 

The Local Board's amended petition states that this action was brought pursuant to 

Title 2, Chapter 4, part 7, MCA, "Judicial Review of Contested Cases." The District Court 

ruled that to the extent the amended petition sought judicial review of rule-making 

procedures, such judicial review was barred under $ 2-4-702(2)(a), MCA. That statute 

requires that a claim for judicial review of a contested case must be filed within thirty days 

of the final decision of the agency. The State Board claims that date is the August 1995 

publication date giving public notice that the agency had adopted amendments to the rules. 

The State Board argues that new issues raised in the Local Board's November 7, 1995 first 

amended petition (i.e., the claims concerning the amended rules) do not relate back to the 

original petition. 

In addition to citing Title 2, Chapter 4, part 7, MCA, the amended petition also asserts 

that the amendments to the administrative rules violate 5 2-4-506, MCA. That statute 

provides: 

(1) A rule may be declared invalid or inapplicable in an action for 

declaratory judgment if it is found that the rule or its threatened application 
interferes with or impairs or threatens to interfere with or impair the legal 

rights or privileges of the plaintiff. 

(2) A rule may also be declared invalid in such an action on the 

grounds that the rule was adopted with an arbitrary or capricious disregard for 

the purpose of the authorizing statute as evidenced by documented legislative 

intent. 

(3) A declaratory judgment may be rendered whether or not the 

plaintiff has requested the agency to pass upon the validity or applicability of 

the rule in question. 

(4) The action may be brought in the district court for the county in 

which the plaintiff resides or has his principal place of business or in which the 

agency maintains its principal office. The agency shall be made a party to the 

action. 

A declaratory action pursuant to 9 2-4-506, MCA, is not subject to the thirty-day limitation 

imposed on proceedings for judicial review in contested cases under 5 2-4-702, MCA. 

The amended petition in this case asks the court to, among other things, declare void 

the 1995 amendments to ARM 16.8.1404, 16.8.1413 and 16.8.1429 (now ARM 17.8.304, 

17.8.302 and 17.8.321), which the Local Board alleges were adopted with an arbitrary or 

capricious disregard for the purpose of the authorizing statute. The amended petition thereby 

seeks declaratory judgment regarding the amendments to the rules. We conclude that, to the 

extent it seeks declaratory judgment on the validity of the 1995 amendments to those 

administrative rules, the amended petition is not subject to the thirty-day rule set forth at 5 2- 

4-702(2)(a), MCA, and was timely filed. 

ISSUE 3 

Did the court err in ruling that the State Board's September 1994 final order is moot? 
A question is moot when it no longer presents a justiciable controversy because the 

issues involved have become academic or dead or any action the court may take will have 

no effect on the situation of the parties. State v. Mesler (1984), 210 Mont. 92,682 P.2d 714; 

State v. Warden (198 I), 191 Mont. 520,625 P.2d 543. In short, a question is moot when the 

court cannot grant effective relief. Turner v. Mountain Engineering and Const., Inc. (1996), 

276 Mont. 55,915 P.2d 799. 

An exception to the mootness doctrine exists for actions which are capable of 

repetition, yet, because they are too short in duration to be fully litigated prior to cessation 

or expiration, they evade review. This exception is usually applied to situations involving 

governmental action where it is feared that the challenged action will be repeated. ButteSilver Bow Local Govern. v. Olsen (1987), 228 Mont. 77,82,743 P.2d 564, 567. 

In the present case, the amended administrative rules were published on August 10, 

1995. At its December 1995 meeting, after the Local Board's first amended petition was 

filed, the State Board voted to dismiss Stone Container's petition for declaratory ruling 

which was the subject of the State Board's September 1994 final order. No written order of 

dismissal was entered, however. 

The State Board and Stone Container argue that the September 1994 final order is 

moot because it has been superseded by the amended rules and because the order was 

withdrawn by the State Board when the State Board voted to dismiss Stone Container's 

petition for declaratory ruling. They argue that no live controversy exists as to this matter. 
Amending disputed rules as a means of resolving a contested case without fully 

engaging in statutory administrative rule-making procedural requirements, as is alleged to 

have occurred in this case, is a governmental action which may evade review, yet is capable 

of repetition. If the District Court determines that the 1995 rule amendments are valid, this 

allegation of impropriety may well be adjudged disproved as part of that determination. If, 

however, the court determines that the amendments are invalid, it must then determine 

whether the previous version of the rules is revived. If the District Court determines that the 

amendments are invalid but that the preamendment rules are still in effect, the issue is within 

the exception to the mootness doctrine, because it evades review, yet is capable of repetition. 

In summary, we conclude that the District Court erred in ruling that the Local Board 

lacked standing to maintain this action and that the Local Board's amended petition for 

declaratory relief was untimely. We therefore remand for further proceedings concerning 

those matters. Final resolution of the mootness issue concerning the State Board's September 

16, 1994 order will depend upon additional determinations to be made by the District Court 

on remand. 

Reversed and remanded for further proceedings consistent with this Opinion. 
We concur: