No. 14215 

IN THE SUPREME COUIZT OF THE STATE OF MONTANA 

1978 

NOF?EEF!N PLAINS RESOURCE COUNCIL AND 

NOIiTHEEW CHEYENNE TRIBE, INC., 

Petitioners and Respondents, 

-VSBQARD OF NATURAL RESOURCES AND CONSEFWiTION, et al., 

Respondents and Appllants. 

Appeal from: District Court of the First Jdicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellants: 

W. H. Bellingham argued, Billings, Pbntana 

John L. Peterson argued, Butte, PJbntana 

Richard Andriolo argued, Bozeman, I4mta.m 

Wurice F. Hennessey argued, Butte, lbntana 

C. W. Leaphart, Jr., Helena, Pbntana 

Neil S. Keefer, Billings, Fbntana 

John W. Ross, Butte, PJbntana 

For Respondents : 

Leo C. Graybill, Jr. argued and Gregory Warner argued, Great Falls, 

Pbntana 

For Amicus Curiae: 

Benjamin W. Hilley argued, Great Falls, Pbntana 

D. Patrick ?&Kittrick, Great Falls, Pbntana 

Sulsanitted: October 24, 1978 

5 + &= 

Decided: : 193 

Filed : -- -, .q , '3 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Pursuant to the Montana Major Facility Siting Act, 

section 70-801 et seq., R.C.M. 1947, now section 75-20-101 

et seq. MCA (hereinafter "Siting Act") , the Board of Natural 

Resources and Conservation (hereinafter "Board of Natural 

Resources"), on July 22, 1976, granted to the Montana Power 

Company, Puget Sound Power and Light Company, Portland 

General Electric Company, the Washington Water Power Company, and Pacific Power and Light Company (hereinafter 

"Utilities"), a certificate of environmental compatability 

and public need for the construction of the facility known 

as Colstrip Units 3 and 4. Respondents and cross-appellants 

appealed this decision to the First Judicial District Court, 

Lewis and Clark County, under the provisions of the Montana 

Administrative Procedure Act, section 82-4201 et seq., 

R.C.M. 1947, now section 2-4-101 et seq. MCA (hereinafter 

"MAPA"). The District Court reversed and remanded the 

matter to the Board of Natural Resources for rehearing. 

From this order both appellants/cross-respondents and respondents/cross-appellants appeal to this Court. The two appeals have been consolidated for hearing and decision. 

To properly indicate the monumental proportions this 

matter has taken, we believe it is necessary to set forth 

its background in some detail as was done by the Board of 

Natural Resources in its findings of fact, conclusions of 

law, opinion, decision, order and recommendations. This 

also will help to illuminate the issues on appeal and place 

this controversy is perspective. 

Pursuant to the terms of the Siting Act, on June 6, 

1973, the Utilities filed with the Montana Department of 
Natural Resources and Conservation (hereinafter "Department 

of Natural Resources") an application for a certificate of 

environmental compatibility and public need for the proposed 

Colstrip Units 3 and 4. Filed contemporaneously was a 

petition for waiver of time requirements as set forth in 

section 70-806, R.C.M. 1947, now section 75-20-211 MCA, and 

a filing fee of $1,232,930. The Utilities also filed with 

the Department of Natural Resources their environmental 

analysis of the proposed project and related facilities 

entitled "Colstrip Generation and Transmission Project." 

This environmental analysis was dated November 1973 and was 

prepared by the environmental systems department of Westinghouse Electric Corporation. 

The Department of Natural Resources, pursuant to sections 70-807 and 70-816, R.C.M. 1947, now sections 75-20-216 

and 75-20-503 MCA, of the Siting Act, conducted an extensive 

study over a period of 600 days of the application and 

issued its draft environmental impact statement in November 

1974, recommending against the granting of the application. 

Subsequent to issuing the draft environmental impact statement, the Department of Natural Resources conducted a series 

of public meetings to gain input from the public regarding 

the proposed project and the analysis thereof contained in 

the draft environmental impact statement. On or about 

January 21, 1975, the Department of Natural Resources released its final environmental impact statement on the 

proposed project containing its recommendations against 

granting the application and transmitted the same to the 

Board of Natural Resources. 

The Board of Natural Resources, on receipt of the 

recommendations from the Department of Natural Resources and 
after due and deliberate consideration, issued an order 

dated January 24, 1975. In its order the Board of Natural 

Resources deemed that the matter before it, i.e., the application for a certificate of environmental compatibility and 

public need for the proposed Colstrip Units 3 and 4, would 

be considered a contested case as defined in MAPA, section 

82-4201 et seq., R.C.M. 1947, now section 2-4-101 et seq. 

MCA. Subsequent to issuing this order, the Board of Natural 

Resources issued orders on February 7, 1975 and February 14, 

1975, pertaining to matters of procedure to be followed, 

particularly referring to the methods of discovery and 

determining the burden of proof. 

The Board of Natural Resources further ordered that the 

hearing would commence on March 10, 1975, at Bozeman, Montana. Notice of the time and place of the hearing was given 

to all parties and published in daily newspapers throughout 

Montana to inform the public. On March 10, 1975, the hearing began, at which time motions were presented to the Board 

of Natural Resources by the opponents of the application to 

continue the hearing until May 13, 1975, to afford the 

parties time to complete discovery procedures. Also, objections were made to a member of the Board of Natural Resources serving as hearings examiner. On ~pril 17, 1975, 

the Board of Natural Resources continued the hearing until 

April 21, 1975, and on April 10, 1975, Carl M. ~avis was 

appointed by the Board as hearings examiner to preside over 

the public hearing phase of the proceedings. 

Following a pretrial conference with the parties, the 

hearings examiner, by order dated April 15, 1975, directed 

the proceedings to reconvene on April 21, 1975, at ~elena, 

Montana. 
By letter dated April 10, 1975, the director of the 

Department of Health and Environmental Sciences (hereinafter 

"~epartment of Health") notified the Board of Natural Resources that the Department of Health certified that the 

proposed facility will not violate state and federally 

established water quality standards. It did not certify 

that the proposed facility will not violate state and 

federally established air quality standards and implementation plans. 

On April 18, 1975, the Northern Plains Resource Council 

filed Cause No. 38934 in the District Court of Lewis and 

Clark County. A writ of prohibition was served upon the 

Board of Natural Resources and the hearings examiner, directing them to desist and refrain from any further proceedings 

until further order of the court and further directed them 

to appear in court on April 22, 1975. Following the hearing 

the court, on April 29, 1975, quashed the writ of prohibition, thereby allowing the hearing to continue. The court 

further ordered the Board of Health and Environmental Sciences (hereinafter "Board of Health") to hold a hearing to 

determine whether the certificate required by section 70- 

810(1) (h) , R.C.M. 1947, now section 75-20-301(i) (h) MCA, 

should be issued. 

The hearing was reconvened in Helena on May 5, 1975. 

Motions by the opponents for further continuances were 

presented and granted by the hearings examiner, continuing 

the hearings until May 20, 1975. 

On May 9, 1975, the Northern Cheyenne ~ribe, Inc., 

filed an application for a writ of prohibition in the istrict Court of Lewis and Clark County, Cause No. 39000. 

This matter was heard by the court on May 19, 1975, and 
judgment was entered on the same date dismissing the application. 

The public hearing before the Board of Natural Resources formally began on May 20, 1975, and continued until 

June 5, 1975, at which time the hearing before the Board of 

Health was commenced with Carl M. Davis serving as hearings 

examiner. The hearing before the Board of Health consumed a 

total of 53 hearing days and concluded on September 15, 1975 

with 53 witnesses having testified. After studying the 

testimony and exhibits, and the findings of fact submitted 

by the parties, the Board of Health heard oral arguments by 

counsel, visited the site of the proposed facilities and 

rendered its decision on November 21, 1975, issuing its 

conditional certification, pursuant to section 70-810(1)(h), 

R.C.M. 1947, now section 75-20-301(1)(h) MCA, of the Siting 

Act. 

On July 23, 1975, at the conclusion of Utilities' casein-chief in the Board of Health hearing, the opponents to 

the application moved to dismiss the Utilities' proceedings 

for certification, together with a motion to continue further hearings until the Board of Health ruled upon the 

motions. The motion to continue the Board of Health hearing 

was denied on July 24, 1975. The opponents to the application filed in the District Court of the First Judicial 

District, Cause No. 39228, an application for a writ of prohibition or mandate commanding the Board of Health and the 

hearings examiner to cease and refrain from further proceedings until further order of the court or to show cause 

to the court why the Board of Health should not be permanently restrained from further proceedings until the ~oard 

had ruled upon opponents' motion to dismiss. 
On July 25, 1975, this Court granted the Utilities' 

application for a writ of supervisory control and directed 

the ~istrict Court to either withdraw its writ of prohibition or, in the alternative, to appear before the Supreme 

Court on July 28, 1975. On July 28, 1975, this Court heard 

the matter, and at the conclusion of the hearing directed 

that the writ of prohibition be set aside and that the 

hearings proceed. 

The hearings examiner for the Board of Natural Resources issued an order dated December 10, 1975, recovening 

the Board of Natural Resources' hearing on January 19, 1976, 

at Helena. In addition he set forth certain procedures to 

be followed by all parties to the proceedings regarding the 

presentation of direct testimony and cross-examination. 

Notice of the time and place of the hearing was served on 

all parties and published in daily newspapers throughout the 

state to inform the public. The Department of Natural 

Resources and the Northern Plains Resource Council filed 

motions with the Board of Natural Resources, moving the 

Board to terminate its hearing on the basis that the Board 

of Health had not certified, or had miscertified, that the 

proposed Colstrip Units 3 and 4 would meet applicable air 

and water quality standards. After a hearing, the motion 

was denied. 

The reconvened hearing commenced on January 19, 1976, 

and was concluded on March 30, 1976. A total of 255 witnesses testified, including 132 public witnesses. The 

transcript of the proceedings in both the Board of Health 

hearing and the Board of Natural Resources hearing, consisting of approximately 17,000 pages, including copies of 

the exhibits received into evidence, were served upon each 
member of the Board of Natural Resources together with the 

parties' proposed findings of fact. 

 he Board of Natural Resources visited and inspected 

the proposed facilities on two occasions. After due and 

timely notice being served and published, it heard oral 

arguments on May 19 and 20, 1976, by all parties who were 

present and desired to present arguments. 

The Board of Natural Resources having inspected the 

site, read the record of the proceedings and the proposed 

findings of fact of the parties, and heard the arguments of 

counsel and public parties, and having duly considered the 

same and being fully advised in the premises, announced in a 

regularly scheduled and noticed meeting on June 24, 1976, 

that it was ready to act upon the application. A motion to 

approve the application to construct Colstrip Units 3 and 4 

and associated facilities and to grant applicants a certificate of environmental compatibility and public need, 

subject to certain stated conditions, was seconded and 

carried with four members voting in favor of the motion and 

three members voting against the motion. 

A majority of the Board having approved granting the 

application, the Board made its findings of fact and conclusions of law, together with its decision, opinion, order and 

recommendations. It granted the certificate of environmental compatibility and public need to the utilities on 

July 22, 1976. 

~espondents/cross-appellants appealed to the ~istrict 

Court of Lewis and Clark County, which reversed and remanded 

the matter to the Board of Natural Resources, ~ppeal to 

this Court from the District Court's opinion is taken by all 

parties. 
Before discussing the many individual issues in this 

case, there are several other matters which require emphasis 

by this Court. 

Section 82-4216(7), R.C.M. 1947, now section 2-4-704 

MCA, enacted in 1971 as a part of MAPA, establishes the 

standards of judicial review of contested agency decisions. 

The foregoing subsection commences by stating that the court 

shall not substitute its judgment for that of the agency as 

to the weight of the evidence on questions of fact. It 

continues by providing that the court may reverse or modify 

the agency decision if substantial rights of the appealing 

party have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (a) in 

violation of constitutional or statutory provisions; (b) in 

excess of the statutory authority of the agency; (c) made 

upon unlawful procedure; (d) affected by other error of law; 

(e) clearly erroneous in view of the reliable, probative and 

substantial evidence on the whole record; (f) arbitrary or 

capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion; or (g) because findings 

of fact, upon issues essential to the decision, were not 

made although requested. It is clear from this statute that 

the burden resting upon an appealing party to a ~istrict 

Court from an agency decision is a substantial one. 

This Court recently set forth three basic principles 

underlying section 82-4216 which a District Court must 

consider in determining what the scope of review of an 

administrative decision should be: (1) that limited judicial review of administrative decisions strengthens the 

administrative process by encouraging the full presentation 

of evidence at the initial administrative hearing; (2) 
judicial economy requires court recognition of the expertise 

of administrative agencies in the field of their responsibility; and (3) limited judicial review is necessary to 

determine that a fair procedure was used, that questions of 

law were properly decided, and that the decision of the 

administrative body was supported by substantial evidence. 

vita-~ich Dairy, Inc. v. Department of Business Regulation 

(1976), 170 Mont. 341, 553 P.2d 980. 

A recent United States Supreme Court decision has a 

great deal to say on the subject of judicial review of 

agency decisions. The Court expresses its views on the 

practice of some federal judges in placing themselves in the 

place of the agency in making the decision, rather than 

following the correct course and setting aside agency decisions only for substantial procedural or substantive reasons 

as mandated by statute. In Vermont Yankee Nuclear Power 

Corp. v. Natural Resources Defense Council, Inc. (1978), 435 

U.S. 519, 98 S.Ct. 1197, 55 L Ed 2d 460, the Supreme Court 

unanimously reversed a decision of the Court of Appeals for 

the District of Columbia Circuit which had overturned the 

Atomic Energy Commission's decision to grant Vermont Yankee 

a license to operate a nuclear power plant. 

The Court of Appeals ruled that the rule-making procedures of the AEC were inadequate despite the fact that the 

agency had employed all the procedures required by the 

Federal Administrative Procedure Act and more. The Supreme 

Court concluded that the Court of Appeals had seriously 

misapplied statutory and decisional law cautioning reviewing 

courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions 

by Congress, 435 U.S. at 525, and that "[albsent constitu- 
tional constraints or extremely compelling circumstances the 

'administrative agencies "should be free to fashion their 

own rules of procedure and to pursue methods of inquiry 

capable of permitting them to discharge their multitudinous 

duties. " ' . . ." Vermont Yankee, 435 U.S. at 543. 

In cautioning the lower court to judge an agency decision by the appropriate standards of review, the Supreme 

Court noted that the lower court should "not stray beyond 

the judicial province to explore the procedural format or to 

impose upon the agency its own notion of which procedures 

are 'best' or most likely to further some vague, undefined 

public good." 435 U.S. at 549. The court left little doubt 

in stating: 

". . . the role of a court in reviewing the 

sufficiency of an agency's consideration of 

environmental factors is a limited one. limited 

both by the time at which the decision was made 

and by the statute mandating review. 

"'Neither the statute -- nor its legislative history contemplates -- that a court should substi- 

-- tute its judgment ---- for that of the agency -- as to 

----- the environmental consequences of its actions.' 

[Citation omitted.]" Vermont Yankee, 435 U.S. 

at 555. (Emphasis supplied.) 

As to nuclear energy, the Court pointed out that Congress had made a choice to at least try nuclear energy, 

establishing a reasonable review process in which courts are 

to play only a limited role. " . . .The fundamental policy 

questions appropriately resolved in Congress and in the 

state legislatures are not subject to reexamination in the 

federal courts under the guise of judicial review of agency 

action. . ." 435 U.S. at 558. The Court concluded with the 

strong language: 

". . . It is to insure a fully informed and 

well-considered decision, not necessarily a 

decision the judges of the Court of Appeals or 

of this Court would have reached had they been 
members of the decisionmaking unit of the 

agency. Administrative decisions should be 

set aside in this context, as in every other, 

only for substantial procedural or substantive 

reasons as mandated by statute, Consolo v. FMC, 

383 U.S. 607, 620 (1966), not simply because 

the court is unhappy with the result reached 

. . ." 435 U.S. at 558. 

Because so many of the issues in this case involve the 

findings of at least one board below, we review briefly what 

this Court has stated regarding the rules of construction 

applied to findings of fact. In Ballenger v. Tillman (1958), 

133 Mont. 369, 324 P.2d 1045, this Court stated that ultimate 

facts, as distinguished from evidentiary ones, are the 

findings a trial court should make. Findings are to receive 

such a construction as will uphold, rather than defeat, the 

judgment. This Court quoted with approval a California case 

to the effect that there is no error in the failure of a 

trial court to make an express finding upon an issue if it 

was implicit in the findings made, and that there is no 

necessity to negate contradictory allegations. 

Ballenger was quoted with approval in Erickson v. 

Fisher (1976), 170 Mont. 491, 554 P.2d 1336, where the Court 

rejected a proposed finding of fact offered by the appellant 

because it was merely an evidentiary fact as distinguished 

from an ultimate fact. 

It has been stated another way that findings are sufficient if they dispose of material issues. 76 Am Jur 2d, 

Trial, 51259; 89 C.J.S. Trial, 5626. This is applicable to 

court trials, and it is obvious that stricter rules should 

not be imposed upon administrative agencies. 

This record contains some 17,000 pages of transcript; 

hundreds of exhibits, including a monumental "environmental 

analysis"; and hundreds of proposed findings of fact and 
conclusions of law. The findings of fact and conclusions of 

law of the Board of Health are 23 pages long, and those of 

the Board of Natural Resources run 46 pages. Approximately 

300 pages of briefs were submitted. Many of the questions 

involved require first impression decisions as to the requirements of the MAPA and of the Siting Act. 

Due to the many issues presented, their complexity, and 

the voluminous pages of transcript, we find it impractical 

to set forth the entire statement of facts in a single 

portion of this opinion. Further necessary and appropriate 

facts will be discussed with each issue. 

The issues presented to this Court, as agreed to by the 

parties and addressed by the District Court, are: 

1. Whether the District Court's ruling that prohibition of cross-examination of agency witnesses violated 

constitutional standards, statutes, and regulations, was 

error? 

2. Whether the Board of Health proceedings, record, 

transcript, exhibits, findings, conclusions and orders in 

the Board of Natural Resources record is subject to review? 

3. Whether the District Court erred in requiring the 

Board of Health to consider state or federal implementation 

plans in reaching certification pursuant to section 70- 

810 (1) (h) , R.C.M. 1947, now section 75-20-301 (1) (h) MCA? 

4. Whether the District Court erred in requiring the 

Board of Health to make findings and conclusions as to 

whether certain air and water quality standards would be 

complied with, and whether the facilities would have a major 

impact on ground water quality? 

5. Whether the District Court erred in requiring the 

Board of Natural Resources to consider and make adequate 
findings of fact and conclusions of law with respect to 

whether the facilities will result in the minimum adverse 

environmental impact? 

6. Whether the District Court's ruling that the Board 

of Health is required to certify without condition, compliance with air and water quality standards and state implementation plans, was error? 

7. Whether the District Court properly ruled that the 

Board of Natural Resources be required to consider and make 

adequate findings as to the siting and location of the 

transmission corridor for the 430 miles of transmission 

lines? 

8. Whether the District Court erred in holding that 

there was not substantial credible evidence to support the 

Board of Natural Resources' findings, conclusions, and 

decision that the proposed facility represents the minimum 

adverse environmental impact? 

9. Whether the District Court properly accepted and 

ruled that parties to the petition were adequately served? 

10. Whether the Board of Natural Resources properly 

denied a motion to deny the application based on the Board 

of Health's miscertification or noncertification of the air 

and water quality matters required under section 70-810(1)(h), 

R.C.M. 1947, now section 75-20-301(2) (h) MCA? 

11. Whether the Board of Natural ~esources' refusal to 

consider the minimum adverse environmental impact as to 

requiring more efficient technology for the removal of SO2 

and the District Court's opinion affirming that refusal is 

error under the Siting Act? 

12. Whether the refusal of the Board of ~atural Resources to allow its members the opportunity to review 
findings of fact and conclusions of law prior to adoption, 

and the District Court's affirming that decision, was arbitrary and capricious on the part of the agency and a 

deprivation of petitioners' constitutional rights to due 

process and a full and fair hearing before the Board? 

The first issue to be addressed is Issue No. 9--whether 

the District Court properly accepted and ruled that parties 

to the petition were adequately served. We believe that it 

did. While the District Court did not make a specific 

ruling as to the effectuation of proper service on all 

parties, it surely is clearly implied by its various pretrial orders and by its final order reversing and remanding. 

Surely neither the Utilities nor the agency appellants/ 

cross-respondents have any standing to complain about service in this matter. Any complaint they might have had was 

waived by agreeing to the delineation of issues which were 

finalized by the District Court's order of February 27, 

1977. It is contended by the Union and REA, appellants/ 

cross-respondents, that they are each "parties of record" 

for the purposes of section 82-4216 (2) (a) , R.C.M. 1947, now 

section 2-4-702 MCA, of the MAPA, and thereby entitled to 

individual service of a copy of the petition of review. We 

find that the Union and REA were not indispensable parties 

under the circumstances entitled to individual service of a 

copy of the petition of review. Compare, Cissell v. Colorado 

State Bd. of Assessment App. (Colo. 1977), 564 P.2d 124, and 

Life of the Land v. Land Use Comn. (1977), 58 Haw. 292, 568 

P.2d 1189. They were jointly represented by counsel and the 

International Brotherhood of Electrical Workers, an active 

participant in the agency proceeding was actually served 
with a copy of the petition for review. Had these appellants/cross-respondents communicated with one another, they 

would have had actual knowledge of the petition, if they did 

not have such knowledge from their counsel or the newspapers. 

We do not feel that judicial review of the Board's 

action should be thwarted by a party not participating in a 

proceeding, even though it had knowledge of it, and later 

allowed to complain that the court had no jurisdiction over 

the matter. The motion of the Union and REA to dismiss this 

proceeding is hereby denied. 

Issue No. 2 will be considered next. This issue could 

more properly be phrased by asking whether the decision of 

the Board of Health was a final decision under the provisions of section 82-4216, R.C.M. 1947, now section 2-4-702 

MCA, of the MAPA, and, if so, whether an appeal of such 

order is mandatory or permissive. 

On pages 16 and 17 of its order, the District Court 

held that the granting of the Board of Health certification 

should properly be viewed as a "preliminary, procedural or 

intermediate agency action" which is not reviewable because 

review of the final agency action (i.e., that of the Board 

of Natural Resources) provides not only an adequate remedy 

but the only necessary remedy." The District Court held 

that the Board of Health certification had no legal effect 

whatsoever until and unless the Board of Natural Resources 

granted its certification under section 70-804, R.C.M. 1947, 

now sections 75-20-201 and 75-20-203 MCA. The court concluded that the Board of Health decision could not be appealed until the Board of Natural Resources granted a final 

certificate of environmental compatibility. 
Section 82-4216, R.C.M. 1947, now section 2-4-702 MCA, 

provides: 

" (1) (a) A person who has exhausted all administrative remedies available within the agency 

and who is aggrieved by a final decision in a 

contested case is entitled to judicial review 

under this part. This section does not limit 

utilization of or the scope of judicial review 

available under other means of review, redress, 

relief, or trial de novo provided by statute. 

A preliminary, procedural, or intermediate 

agency action or ruling is immediately reviewable if review of the final agency decision 

would not provide an adequate remedy." 

The issue then is whether or not the decision of the 

Board of Health dated November 21, 1975, certifying that 

Colstrip Units 3 and 4 would not violate state and federally 

established standards and implementation plans, was a final 

decision under the provisions of the MAPA and, accordingly, 

should have been appealed to the District Court by the 

petitioners at that time. 

Section 70-810 (1) (h) , R.C.M. 1947, now section 75-20- 

301(l)(h) MCA, provides that the Board of Natural Resources 

may not grant a c e r t i f i c a t e u n t i l it determines that the 

authorized state air and water quality agencies have certified that the proposed facility will not violate state and 

federally established standards and implementation plans. 

There is no question that the Board of Health is the duly 

authorized state air and water quality agency in this case. 

Section 70-810, R.C.M. 1947, now section 75-20-301 MCA, 

further provides that judgments of the authorized air and 

water quality agencies "are conclusive" on all questions 

relating to the satisfaction of state and federal air and 

water quality standards. The Board of Natural Resources had 

no authority to review the decision of the Board of Health 

under any circumstances. Accordingly, the Board of Health 
order was not a preliminary or interlocutory order. It was 

final for all purposes. Thus, an appeal should have been 

made by petitioners at that time. 

The fact that the Board of Health's certification was 

not the final order in point of time in the proceedings is 

not conclusive on the question of appealability. " . . . For 

purposes of judicial review the finality of an agency order 

depends upon the nature of the order rather than its chronology in relation to the whole of the agency proceedings. . 

." Goodman v. Public Service Commission, (D.C. Cir. 1972), 

467 F.2d 375, 377, citing Federal Power Comm'n v. Metropolitan Edison Co. (1938), 304 U.S. 375, 384, 58 S.Ct. 963, 

82 L.ed. 1408. 

Goodman involved a hearing before the Washington, D.C. 

Public Service Commission concerning a petition for a rate 

increase. The hearing was bifurcated into two "phases." In 

its Phase I order, the PSC established the fair rate of 

return at 7.1 percent. The Power Company was then ordered 

to submit proposed schedules to increase its revenue accordingly. The PSC Phase I1 order was an order effectuating the 

above directive by approving a schedule of rates. Goodman 

appealed from the Phase I order and not the Phase I1 order. 

The federal district court dismissed the appeal holding that 

the Phase I order was not a final order or decision and that 

Goodman was not affected until entry of the Phase I1 order. 

The Circuit Court of Appeals reversed, holding that the 

Phase I order was a final order: 

". . . Its final character is in no sense 

affected by the need for the later Phase I1 

order allocating the increase among the several 

different categories of customers. The increase in rates, and the findings of the Commission upon the basis of which the increase 
was allowed, were in no way left for further 

decision by the Phase I1 order. 

"While it is true that in our case there was 

something else for the Commission to do, the 

validity of the over-all increase [Phase I] was 

not conditioned upon anything yet to be resolved 

by the later order authorizing tariff schedules. 

What remained to be done was not concerned with 

the validity of the increase in rates which had 

been granted--the action of the Commission 

which Mr. Goodman took to court. That action 

'was expected to and did have legal consequences' 

which were not modified nor intended to be modified by the Phase I1 order which followed. 

[Citing cases.]" Goodman, 467 F.2d at 377-78. 

As with the PSC Phase I order in Goodman, the Board of 

Health's certification was not conditioned upon anything yet 

to be resolved by the later order of the Board of Natural 

Resources. The remaining administrative procedures were not 

concerned with air and water quality certification. The 

Board of Health order in this regard w3.d final and conclusive. The Board of Health's action "was expected to and did 

have legal consequences" which were neither modified nor 

intended to be modified by the later order of the Board of 

Natural Resources. The Board of Health's order of November 

21, 1975, marks the consummation of the administrative 

process within that particular agency. The Board of Health's 

decision was final for purposes of judicial review and 

should have been appealed at that time. 

"The principle of finality in administrative 

law is not, however, governed by the administrative agency's characterization of its action, but rather by a realistic assessment of 

the nature and effect of the order sought to be 

reviewed. Hence, 'a final order need not necessarily be the very last order' in an agency proceeding, but rather, is final for purposes of 

judicial review when it 'impose[s] an obligation, 

den[ies] a right, or f ix[es] some legal relationship as a consummation of the administrative 

process.' . . ." Fidelity Television, Inc. v. 

F.C.C. (D.C. Cir. 1974), 502 F.2d 443, 448. 
We find that the Board of Health's order of November 

21, 1975, was final on that date. An appeal from that order 

had to be filed within thirty days thereafter pursuant to 

the terms of the MAPA. No appeal was timely filed and, 

therefore, the District Court was without jurisdiction to 

review the order. The District Court is reversed accordingly. 

In view of the fact that this Court has ruled that the 

District Court was without jurisdiction to review the Board 

of Health's order dated November 21, 1975, the following 

issues become moot and need not nor can be decided by us: 

Issue No. 3 involving the alleged failure of the Board of 

Health to consider state and federal implementation plans; 

Issue No. 4 concerning the requirement that the Board of 

Health make additional findings and conclusions concerning 

certain air and water standards; and Issue No. 6 which 

raised the question of the validity of the conditional 

certificate issued by the Board of Health. 

Issue Nos. 10, 11 and 12 involve issues wherein respondents/cross-appellants contend the District Court erred. 

Issue No. 10 questions the denial by the Board of 

Natural Resources and the concurrence of the District Court 

of respondents/cross-appellants' motion to deny the application because of faulty certification by the Board of 

Health. We find that the District Court properly concurred 

in the denial of the motion. 

On January 7 and 8, 1976, respondents/cross-apellants 

filed motions to terminate the proceedings before the Board 

of Natural Resources on the grounds of the alleged invalidity 

of the certification of the facility by the Board of ~ealth. 

The Board of Natural Resources denied the motions. 
Under the provisions of section 70-810 (1) (h) , R.C.M. 

1947, now section 70-20-301(2)(h) MCA, of the Siting Act, 

the Board of Health is required to certify to the Board of 

Natural Resources ". . . that the proposed facility will not 

violate state and federally established standards and implementation plans . . ." This was done by the Board of Health 

on November 21, 1975. The grant was called a "conditional 

certificate," but that qualification has no significance for 

the purposes of this issue. The above section of the Siting 

Act provides further that the judgments of the Board of 

Health ". . . are conclusive on all questions related to the 

satisfaction of state and federal air and water quality 

standards." (Emphasis added.) Therefore, from a statutory 

standpoint alone, the Board of Natural Resources had no 

choice but to look upon the certification by the Board of 

Health as "conclusive" and deny the motions of respondents/ 

cross-appellants. 

There is an even more compelling reason why the Board 

of Natural Resources was justified in denying the motions. 

The certification and order of the Board of Health was dated 

November 21, 1975. We held under Issue No. 2 that such 

certification and order was a "final decision in a contested 

case" and subject to mandatory judicial review within thirty 

days after its issue. The motions of respondents/crossappellants were not filed until January 7 and 8, 1976, well 

beyond the thirty-day period for judicial review, thus 

making the certification and order of the Board of Health 

doubly "conclusive" not only upon the Board of Natural 

Resources but also upon the District Court. The remedy 

available to respondents/cross-appellants on this issue of 

certification by the Board of Health was to institute judicial review within the statutory thirty-day period. 
Issue No. 11 concerns the District Court's upholding 

the refusal of the Board of Natural Resources to require 

more efficient technology for the removal of SO2 at the 

facility in considering minimum adverse environmental impact. This issue solely involves questions of fact thoroughly 

reviewed by the Board of Natural Resources before making its 

findings, conclusions and orders. In their briefs both 

appellants/cross-respondents and respondents/cross-appellants 

argue about highly technical matters, which more properly 

should be presented before the administrative agencies. We 

believe the District Court decided the matter properly, and 

its reasons were adequately stated at pages 34 and 35 of 

its opinion: 

". . . The disagreement seems to arise over the 

assertion by applicants that BACT can be equated 

to the highest state of the art or to minimum 

adverse environmental impact. Petitioners insist 

the latter sets a higher standard that BACT and 

that the evidence here shows the pollution removal equipment proposed does not meet that standard. In my opinion, the BACT, or NSPS and PSD, 

standards are empirical and quantifiable and are 

set out specifically in the EPA regulations. 

These should be determined by the Department of 

Health, as that department attempted to do here. 

On the other hand, the determination as to 

whether various aspects of the proposed facility 

will provide minimum adverse environmental impact (or represent the highest state of the art) 

is a judgmental matter, requiring comparison, 

the weighing of several factors and the balancing 

of pros and cons. This is the business of the 

Board of Natural Resources. (In this case, Finding of Fact #79 of the Board of Natural Resources 

sets forth some, or all of the factors considered.) 

Here the petitioners argue that the evidence provided by the witness Brink shows clearly that 

the highest state of the art would provide 90% 

removal of SO2. The applicant points out that 

Brink's technology applies to a high sulfur coal 

installation with an open loop settling system. 

The proposed facility takes advantage of low sulphur coal and a closed loop system that would 

'trade off' higher sulfur emission (purportedly 

within NSPS and PSO standards) for minimization 

of water pollution. Thus, the type of pollution 

control equipment proposed by the applicants 
approved by the Board of Natural Resources may contribute to a total system that provides minimum 

adverse environmental impact. Such an express 

conclusion as applied to the pollution control 

equipment would have been helpful; but it can be 

fairly implied from the findings of both Boards. 

It can certainly be deemed to come under the allencompassing statement in Finding of Fact #3 and 

Conclusion of Law #4 of the BNR certification. It 

seems to me the conclusion on this particular aspect of the case has been adequately stated and 

that it is not 'clearly erroneous', although it 

would have benefited from more substantial factual findings to support it." 

The District Court's holding on this issue was not in 

error. 

Issue No. 12 raises the point as to whether the refusal 

by the Board of Natural Resources to allow members to review 

findings and conclusions prior to adoption was a deprivation 

of respondents/cross-appellants' rights to due process and a 

full and fair hearing before the Board of Natural Resources. 

We find no such deprivation. 

A review of the District Court opinion indicates that 

it actually did not make any ruling on this point. And, a 

review of the record also indicates that respondents/crossappellants did not raise this issue in the District Court. 

Therefore, it cannot be raised for the first time on appeal 

to this Court. We have repeatedly held that we will not 

consider questions of claimed error not previously raised or 

presented to the trial court. Hayes v. J.M.S. Const. (1978), 

- Mont. , 579 P.2d 1225, 35 St.Rep. 722; Mont. Ass'n 

of Underwriters v. State, Etc. (1977), - Mont. - , 563 

P.2d 577, 34 St-Rep. 297; Kearns v. McIntyre Const. Co. 

(1977) Mont. , 567 P.2d 433, 34 St.Rep. 703. 

We point out, however, that in our opinion there was no 

deprivation of rights or even unfair practices in the adoption of findings and conclusions by the Board of Natural 
Resources. A reading of the entire separate volume of 

transcript regarding procedural matters before the Board of 

Natural Resources dated July 22, 1976, clearly demonstrates 

this. 

The record indicates that prior to the meeting of the 

Board of Natural Resources in June 1976, each board member 

prepared his own set of findings and conclusions, after 

which a vote was taken at the June 1976 meeting "as to which 

route they would choose." Following the vote, the hearings 

examiner was requested by the Board to prepare findings of 

the majority, which had voted to approve the application. 

On July 8, 1976, two weeks prior to the final meeting of 

July 22, 1976, a letter was sent to each board member with a 

copy of the hearings examiner's proposed findings of fact, 

conclusions of law, opinion, decision, order and recommendations. The hearings examiner requested that he be 

notified of any changes any member wanted made. The hearings examiner noted that there were some changes to be made 

such as spelling and typographical errors, and some provisions were changed. These findings and conclusions were 

adopted by the Board of Natural Resources simultaneously 

with the granting of the certificate of environmental compatibility and public need. Under these circumstances the 

Board of Natural Resources' action could not be held to be 

arbitrary and capricious, or a deprivation of respondents/ 

cross-appellants' constitutional rights to due process and 

a full and fair hearing. 

Issue No. 5 involves the District Court's requirement 

that the Board of Natural Resources make additional findings 

and conclusions regarding the use of ~osebud coal versus 

McKay coal and the mine-mouth versus load-center generation 
question. The District Court admits there was ample testimony on both points but insists the statutory findings and 

conclusions that the facilities will meet the "minimum 

adverse environmental impact" test of the Siting Act, as 

required by section 70-810(l) (c), R.C.M. 1947, now section 

75-20-301(2) (c) MCA, must be accompanied by a "precise and 

explicit statement of the underlying facts supporting the 

findings" as provided under the terms of the I~APA, section 

82-4213, R.C.M. 1947, now section 2-4-623 MCA. We agree. 

In connection with the Rosebud versus McKay coal point 

in this issue, the District Court held that the Board of 

Natural Resources did not make adequate findings of fact and 

conclusions of law regarding whether the use of only Rosebud 

coal, without the use of any McKay coal, represented the 

minimum environmental impact. The testimony indicates there 

are extensive McKay coal deposits in the same area as the 

Rosebud coal deposits. The use of one coal seam to the 

exclusion of the other could, of course, result in an increased effect of the impact of strip mining and reclamation. 

The lack of any specific findings in this disputed 

factual area, directly affecting the environmental impact of 

the facility,was error on the part of the Board of Natural 

Resources. The District Court properly held that a concise 

and explicit statement of the underlying findings of fact 

was necessary to support the ultimate conclusion. 

 gardi ding the second point in this issue, the ~istrict 

Court held that the Board of Natural Resources be required 

to make adequate findings of fact and conclusions of law 

with regard to: 
" (b) Whether mine-mouth generation as opposed to load 

center generation represents minimum environmental 

impact, and the reasons therefor, including considerations as to relative energy efficiency and the relative impact of electrical transmission versus coal 

haulage, both as required by Section 70-810(l) (c)." 

AppelLantd/cross-respondents maintain that only ultimate factual conclusions need be drawn by the Board of 

Natural Resources and underlying supporting findings of fact 

are not required. Such a position is contrary to the requirements of MAPA. Section 82-4213, R.C.M. 1947, now 

section 2-4-623 MCA. 

The issue is primarily one of whether clear-cut alternatives in the evidence need be considered in the findings 

by the Board of Natural Resources in reaching the statutory 

conclusion that the facilities will meet the minimum adverse 

environmental impact. The Board of Natural Resources made 

no findings, for example, as to whether the economic detriment, if any, in terms of depreciated land values and effect 

on business and commerce, caused by the taking of 430 miles 

of double right-of-way across the State of Montana versus 

the utilization of existing railroad right-of-way satisfied 

the minimum impact test. 

The District Court ruling that the Board of Natural 

Resources be required to make findings as to the "nature and 

economics of the various alternatives," as set forth in 

section 70-810(1)(c), R.C.M. 1947, now section 75-20-301(2)(c) 

MCA, was proper and in accordance with applicable law. 

Issue No. 7 questions the District Court's requirement 

that the Board of Natural Resources make additional findings 

as to the siting and the location of the transmission line 

corridor. 

The District Court held that the Board of Natural 

Resources made inadequate findings as to the environmental 
criteria and the identification and designation of the 

transmission line corridor as required by the IIIAPA in 

section 82-4313, R.C.M. 1947, now section 2-4-623 MCA. 

The transmission line, as a part of the facilities, 

calls for the location of approximately 430 miles of rightof-way for two 500 k.v. transmission lines from Colstrip to 

the western boundary of the state. 

The District Court held that the Board of Natural 

Resources was required to "clearly designate a transmission 

line corridor, make findings of fact as to why the Board 

preferred the chosen corridor to the alternative corridors, 

and conclusions of law as to what state and local legal 

requirements must be met, and whether they have in fact been 

met, in accordance with Section 70-810(1)(f)." We concur. 

Appellants/cross-respondents point out the apparent 

inconsistency of the District Court's opinion wherein the 

court refused to consider the lack of findings as to the 

environmental impact of the alternative corridor segments, 

and its final ruling set forth above. Although the opinion 

could be clearer in this regard, it is apparent that the 

District Court rejected respondents/cross-appellants' argument on the issue of minimum adverse environmental impact as 

to the alternative corridors. However, the District Court 

refused to affirm the granting of a certificate by the Board 

of Natural Resources, without some actual identification of 

the corridors subject to approval. 

With respect to the transmission facilities, appellants/ 

cross-respondents' Exhibit 92 sets forth a number of alternative segments which, in combination, could make up possibly 

five or six different routings, rather than 54 alternative 

routes as suggested by appellants/cross-respondents. ~lso, 
respondents/cross-appellants submitted proposed findings on 

the preferability of alternative corridors, particularly the 

use of existing railroad right of way over the routes --- 

proposed by appellants/cross-respondents. BNR Proposed 

Findings N.P.R.C. #13-16, 32, 34-36, 66-69, 104-105, 108, 

115. DNRC #814-820. 

The findings of fact touching on this issue were conclusory in nature and presented no basis or underlying 

supporting facts for the conclusion reached. See Board of 

Natural Resources Finding of Fact No. 48. Furthermore, in a 

subsequent finding, No. 74, the Board of Natural Resources 

found that further meteorological data was necessary for a 

determination of a final selection of -- the "proposed corridor." 

(Emphasis supplied.) The conclusions of law go no further 

than to make a reference in one of the conditions to a 

"proposed corridor." Board of Natural Resources Conclusion 

of Law No. 12 (L) (3). 

As stated by the District Court, the pertinent findings 

of fact and conclusions of law with respect to the transmission facilities are totally conclusory in nature with 

respect to their location. Furthermore, they fail to actually 

reach the conclusion that a transmission route has been 

located. This is, of course, the fundamental purpose of the 

entire agency process. Section 82-4213, R.C.M. 1947, now 

section 2-4-623 MCA, provides in part: ". . . Each conclusion of law shall be supported by authority or by a reasoned 

opinion. " 

~ppellants/cross-respondents allude to citations of the 

record to satisfy the essential fact-finding obligation of 

the Board of Natural Resources with respect to the requirement that the location conform to state and local laws and 

regulations (section 70-810 (1) (f) R.C.M. 1947, now section 
75-20-301(2) (b) MCA). The District Court correctly held 

that the identification of the laws determined to be complied with was necessary to support Conclusion of Law No. 8. 

The ~istrict Court in this instance could not substitute its 

judgment for the agency in the absence of any definitive 

decision by the agency. 

~ppellants/cross-respondents' contention that references 

in the findings to the fact that the transmission lines 

would be located to avoid population centers as much as 

possible, without even a consideration of what population 

centers were involved, the effect of the impact, or the 

corresponding benefits, if any, does not satisfy the factfinding obligation of the Board of Natural Resources. 

Finally, subsequent approval of a segment of centerline 

has no bearing on the validity of the Board of Natural 

Resources with respect to location of a corridor. The fact 

that members of the Board of Natural Resources may subsequently identify a centerline location does not aid the 

incompleteness of the Board of Natural Resources' determination with regard to a corridor location. 

The District Court properly found that something more 

than conclusory findings of fact or conclusions of law was 

necessary to meet the requirements of the Siting Act with 

respect to location of transmission line facilities, especially of the magnitude sought by appellants/cross-respondents. 

We now turn to Issue No. 8 concerning the District 

Court's finding as to whether there was substantial credible 

evidence to support the Board of Natural ~esources'findings, 

conclusions and decision that the proposed facility represents the minimum adverse environmental impact, 
The parties in this matter phrased this issue as to 

whether the District Court erred in holding there was not 

substantial evidence to support a finding of minimum adverse 

environmental impact. A careful reading of the District 

Court opinion indicates that such a statement of the issue 

is not correct. The District Court in its decision on this 

issue set forth nine different headings. The District Court 

on all the headings except possibly number 8 ruled in favor 

of the utilities. It found there was substantial credible 

evidence to support the Board of Natural Resources' findings, 

conclusions and decision that the proposed facility represents the minimum adverse environmental impact. Concerning 

number 8 the District Court held there is substantial evidence but then beclouds the issue by adding, almost parenthetically, that the Board of Natural Resources did not 

support its ultimate conclusion with any findings as to 

underlying facts. We find that the language concerning 

supporting ultimate facts is surplusage as far as this issue 

is concerned. We agree with the District Court and find 

that there is substantial credible evidence in the record to 

support the Board of Natural Resources' findings, conclusions and decision that the proposed facility represents the 

minimum adverse environmental impact. 

The final issue for this Court to decide and probably 

the most far-reaching with regard to administrative law in 

this state, is Issue No. 1--whether the District Court erred 

in holding that the Board of Natural Resources must provide 

respondents/cross-appellants the opportunity to crossexamine witnesses of the Department of Health and the Department of Natural Resources in the hearings before each ~oard. 
The ~istrict Court in its decision and order held that 

the hearings examiner erred in ruling that parties opposing 

the utilities' application could not cross-examine witnesses 

called by other party opponents in both the Board of Health 

and Board of Natural Resources hearings. We disagree. To 

fully comprehend the nature and reason for the ruling, we 

examine the background of the proceedings prior to the 

ruling. 

After reading the record and the briefs in this case, 

the position of the main parties in the two hearings becomes 

obvious early. On the one side were the proponents consisting of the utilities as applicants. On the other side 

were the opponents to the application consisting of Northern 

Plains Resource Council, Northern Cheyenne Tribe, Inc., the 

Department of Natural Resources and the Department of Health. 

Each of the above opponents was represented by separate 

counsel. With interest we note that when it came time to 

submit to the Board of Health proposed findings of fact and 

conclusions of law, as well as comments on the utilities' 

proposed findings of fact and conclusions of law and final 

memoranda, the four main opponents submitted joint pleadings--not separate ones, each pleading being signed by the 

four separate counsel representing each main opponent. In 

fact, the title of each pleading designates the four parties 

as "opponents" to the application. Any attempt to cast 

doubt upon the division of parties into distinct proponents 

and opponents, as the District Court attempted to do in its 

opinion and order of March 3, 1978, is without,merit. 

No one involved in the proceedings expected an early 

conclusion, yet it soon became apparent that the proceedings 

could last for months unless steps were taken to shorten the 
hearings, For example, the first witnesses called averaged 

over five days of testimony each, including extensive crossexamination by attorneys for the four main opponents to the 

application. Extended discussions among the attorneys and 

the hearings examiner ensued in an effort to break the 

impasse. 

The apprehension of the hearings examiner became more 

noticeable as the proceedings progressed. Thus, early in 

the hearings he noted that the Board of Health proceedings 

were in the second week and the second witness was still on 

the stand. At the beginning of the second month of hearings, 

four witnesses had not yet been completed. 

Finally, the hearings examiner ruled that all witnesses 

would thereafter present their testimony in writing, and 

that the opponents to any witness would have six hours of 

cross-examination time, divided among them as they might 

agree. The hearings examiner further reserved the right to 

permit additional cross-examination if it was material and 

if without it prejudice might occur. A limitation was also 

placed upon redirect and recross examinations. 

Approximately a month later, and after the utilities 

had rested their case-in-chief, objections were made by the 

opponents to not being allowed to cross-examine witnesses 

called by other opponents. At that time, the hearings 

examiner ruled that no party opposing the application would 

be allowed to cross-examine witnesses presented by any other 

party opponent. However, there was at least one exception 

to the rule expressed at the time, and followed thereafter, 

in that counsel for Northern Plains Resource Council was 

allowed to cross-examine Department of Health witnesses as 

to the water aspects of the case because the Department had 
indicated that it could certify that the project would meet 

all applicable state and federal water standards. With this 

position, Northern Plains did not agree. 

The comments of the hearings examiner on this subject 

are most illuminating, including his comments as to who 

opposed the application. In response to a question as to 

whether or not the chair had ruled that the Northern Plains 

Resource Council could not cross-examine a Department of 

Natural Resources' witness, the hearings examiner stated: 

"HEARINGS EXAMINER: That's correct, except on 

matters pertaining to water. It's my understanding 

at the outset of this thing, we line up on two 

sides, proponents and opponents. NOW, there was 

some conversation that you weren't lined up that 

way, but the chair, the Hearings Examiner, has 

observed throughout these proceedings that all 

the attorneys from the opponents' side have been 

in and out of the conference room, sharing exhibits, passing notes, conferring between examinations, and if there's a question one forgot to 

ask, he confers and the next guy asks it, and 

I've never heard of a proceeding where you take 

the side of an opponent to an application and 

you cross-examine the other opponent's witnesses." 

Could the hearings examiner have made it any clearer as 

to the division of the parties? We think not. 

Justification for the rule was stated by the hearings 

examiner as follows: 

"HEARINGS EXAMINER: . . . It seems to me that the 

only person who has the right to cross-examine is 

the person who is on the opposite side. I think 

that's the function of cross-examination. If it 

weren't that way, this new rule we made could be 

very nicely abused. In other words, the Applicants take two hours on cross-examination, the 

other parties, on the other side, we go back on 

the merry-go-round we've been on. You'll have an 

adequate opportunity to put in your client's 

case in full, with as many witnesses as you choose, 

and state your position very firmly, and they'll 

have a right to cross-examine your witnesses. 

I don't contemplate granting the DNR the right 

to cross-examine your witnesses when they're - not 

-- in an adverse position -- to them. That's not 

cross-examination. It can be called cross, but 

it can, in effect, be redirect, unless there's 
some particular issue ------ that you want to put on 

the record, --- that you have opposite issue as far 

- as granting this application is concernedx-then, 

- I think you'd beoathat could legally ---- 

- be called cross, but just to encumber the record 

and say, 'I want to cross-examine this witness,' 

and then go ahead and try to support the witness, 

I see where there could be a great deal of abuse 

and unfairness in that." (Emphasis added.) 

The hearings examiner in the foregoing quotation left 

the door at least partially open as to opponents crossexamining other opponents' witnesses when an "opposite 

issue" was involved, and he further expounded upon this 

later. His answer to a question as to whether he would 

permit cross-examination by an opponent of another opponent's 

witness if they first stated the areas in which they disagreed was that he would not say that he would permit it but 

he would listen and see whether there was indeed a valid 

issue. 

It should be noted that thereafter opponents' counsel 

rarely requested further permission to cross-examine witnesses called by other opponents. In no case is it apparent 

that counsel ever informed the hearings examiner that they 

were opposed to a certain witness' testimony upon any particular subject, nor did they ever request permission to 

cross-examine an opponent's witness on any particular subject. Instead, their objections were general only, based 

mainly on MAPA and the Constitution. 

If the floodgates had been opened by the hearings 

examiner in allowing unlimited cross-examination, it could 

have resulted in an avalanche of testimony, making the 

present 17,000 page transcript look like a summary or condensation. Public witnesses by the dozens turned out to 

testify both against and in favor of the units. Under 

section 70-808(1) (c), R.C.M. 1947, now section 75-20- 
361 (1) (c) MCA, of the Siting Act, "any other interested 

person" is a party to the proceeding although he waives his 

right under subsection (2) if he does not participate orally 

at the hearing. Any of these "parties" who testified at the 

hearing might well have insisted upon their right as a party 

to the proceeding to cross-examine all the witnesses, something that was not lost upon the hearings examiner as revealed in his various comments. We find the hearings 

examiner was literally forced to institute a ruling restricting the examination of witnesses, and this he did with 

fairness and dispatch. 

In spite of the background of the hearings and the 

necessity to restrict examination of witnesses, the District 

Court held that at least the opponent-petitioners below had 

the absolute right to "cross-examine" witnesses called by 

other opponents, Department of Health and Department of 

Natural Resources. 

Having provided the background, our attention is next 

directed to the statutes and case law. 

Section 70-809(1), R.C.M. 1947, now section 75-20- 

222(3) MCA, of the Siting Act provides in part: 

". . . the contested case procedures of the 

Montana Administrative Procedure Act [82-401 to 

82-42251 shall apply to the hearing, except that 

neither common law nor statutory rules of evidence need apply, but the board may make rules 

designed to exclude repetitive, redundant or 

irrelevant testimony." 

Section 82-4210, R.C.M. 1947, now sections 2-4-612(2) 

and 2-4-612(5) MCA, of the MAPA provides: 

" (1) Except as otherwise provided by statute relating directly to an agency, agencies shall be 

bound by common law and statutory rules of evidence. . . 
"(3) A party shall have the right to conduct 

cross-examinations required ----- for a full and true 

disclosure of facts, including the right to 

cross-examine the author of any document prepared 

by or on behalf of or for the use of the agency 

and offered in evidence." (Emphasis added.) 

It should be noted that section 556(d) of the Federal 

Administrative Procedure Act (5 U.S.C.A. 8556 (d) ) is almost 

identical to the first part of subsection (3) above in 

providing that "A party is entitled to . . . conduct such 

cross-examination as may be required for a full and true 

disclosure of the facts." 

The provision for cross-examination of the authors of 

agency documents offered in evidence found in the latter 

part of section 82-4210(3) is not found in the Federal 

Adminstrative Procedure Act nor in the Model State Administrative Procedure Act. Rather, the provision was first 

proposed in Montana in 1959 in a proposed Administrative 

Procedure Act which the Montana Legislature did not pass. 

(Senate Bill 179.) Subsequently, the MAPA passed in 1971 

preserved this language. Both proposals were made at times 

when the courts were concerned with the unfairness that 

would befall claimants for rights or privileges from governmental agencies if the claimants did not have the opportunity to challenge the factual basis of critical reports 

prepared for the agencies. Greene v. McElroy (1959), 360 

U.S. 474, 79 S.Ct. 1400, 3 L Ed 2d 1377; Cedar Rapids Steel 

Transp. v. Iowa State Corn. Comm'n (Iowa 1968), 160 N.W.2d 

825; Application of Plainfield-Water Co. (1953), 11 N.J. 

382, 94 A.2d 673. We find that the inclusion of the foregoing provision in our statute regarding the right to crossexamine the author of agency documents was merely a safeguard to make certain that the existing case law was recog- 
nized by statute. Its inclusion does not broaden the scope 

of the remainder of the statute, and it should not be construed as a separate entity but rather with the statute as a 

whole. 

Although the LAPA does not specifically define crossexamination, resort in this regard can be made to section 

93-1901-4, R.C.M. 1947, now section 26-1-101(1) MCA, which 

provides in part: 

"Direct and cross-examination defined. The 

examination of a witness by the party producing 

him is denominated the direct examination; the 

examination of the same witness, upon the same 

matter, -- by the adverse party, the cross-examination . . ." (Emphasis added.) 

It is obvious that the term "adverse party" was not 

included in the statute for any other reason but to narrow 

the scope of cross-examination to the adverse party. 

The Montana Supreme Court, like the courts of other 

jurisdictions and the texts, in enunciating the general rule 

that cross-examination is a matter of right, limits such 

cross-examination to witnesses of the opposing party or 

adverse party. McGonigle v. Prudential Ins. Co. of America 

(1935), 100 Mont. 203, 46 P.2d 687; Goldberg v. Kelly (1970), 

397 U.S. 254, 90 S.Ct. 1011, 25 L Ed 2d 287; 98 C.J.S. 

Witnesses S368; 81 Am Jur 2d, Witnesses, 8464. 

The right to cross-examination is subject to another 

limitation. The latitude of such examination is largely 

within the discretion of the trial court, with which the 

reviewing court will not interfere unless there has been a 

manifest abuse of discretion. McGonigle v. Prudential Ins. 

Co. of America, supra; State v. Carns (1959), 136 Mont. 126, 

345 P.2d 735. In this connection, section 82-4211(2), 

R.C.M. 1947, now section 2-4-611(2) MCA, provides that 
hearings examiners shall be authorized to "regulate the 

course of hearings." The Federal Administrative Procedure 

Act is almost identical to the Montana provision in providing that the presiding party may "regulate the course of 

the hearing." 5 U.S.C.A. S556(c) (5). 

We find in view of the statutes and case law that there 

is really no distinction between a court trial and a contested administrative proceeding insofar as the rules applicable to cross-examination and the discretion of the court 

or hearings examiner are concerned. Should there be one 

rule for civil cases and another rule for administrative 

proceedings? We think not. 

It would be difficult to find a case more in point than 

National Nutritional Foods Assln v. Food & Drug Admin. (2nd 

Cir. 19741, 504 F.2d 761, cert. denied 420 U.S. 946. Because National Nutritional is so close to this case, more 

space will be devoted to it than ordinarily done. The case 

involved the review of two final regulations of the United 

States Food & Drug Administration (FDA). During the presentation of the FDA's case, all parties were permitted liberal 

cross-examination pursuant to the hearings examiner's pretrial order which provided for cross-examination by any 

participant desiring to do so. The Court of Appeals, Judge 

Friendly writing for the court, wryly noted that so liberal 

a rule not unexpectedly had its cost. 

After the opposition to the FDA began to offer its 

evidence, almost 18 months after the hearing commenced, the 

hearings examiner decided to limit the rights of participants 

to cross-examine the witnesses called by other participants. 

In an order the hearings examiner divided the 2arties into 

two categories--just as was done in this case--with the FDA 
on one side and all other participants on the other. If any 

participant wished to cross-examine the witness of another 

participant, he was to serve a notice of intention to do so. 

The notice had to state that the written direct testimony of 

the witness was adverse to the interest of the participant, 

make specific reference to the portion of the testimony 

considered to be adverse, and state the reasons therefor. 

The hearings examiner would then determine whether to grant 

permission to cross-examine in his discretion. 

The decision of the Court of Appeals approved the 

limitation on cross-examination of coparticipants' witnesses 

where no adversity existed between them; however, the court 

did find that in the case of one particularly important 

witness called by the American Medical Association (Dr. 

Sebrell), the hearings examiner had incorrectly determined 

that no adversity existed between the AMA and the National 

Health Federation. Accordingly, the court remanded the case 

to the FDA for the limited purpose of permitting reasonable 

cross-examination of Dr. Sebrell by the NHF or counsel of 

some other similarly interested participant. 

It appears that the hearings examiner had made his 

ruling that Dr. Sebrell could not be cross-examined by the 

NHF even though it was explained to him at the time that the 

interests of the NHF and AMA were opposite rather than 

identical. In commenting upon this adversity, the court 

noted specifically that the two organizations clearly did 

not have "common interests" and that the NHF was substantially as adverse to the AMA as it was to the FDA. 

Judge Friendly predicated the ruling upon subsection 

(d) of 5556 of the Federal ~dministrative Procedure Act 

which provides, almost identically to section 82-4210(3) I 
R.C.M. 1947, now section 2-4-612(5) MCA, that a party is 

entitled to conduct such cross-examination as may be required 

for a full and true disclosure of the facts. The court 

pointed out that the foregoing provision does not confer a 

right of so-called "unlimited" cross-examination and that 

presiding officers will have to make the necessary initial 

determination where the cross-examination is pressed to 

unreasonable lengths. 

The court further recognized that a hearings examiner 

must be allowed, indeed encouraged, to take steps to avoid 

repetitious or aimless cross-examination, particularly in a 

proceeding which has become so gargantuan as the one before 

it. 

Of more than passing interest is the court's terse 

comment on the point which most trial lawyers have learned 

through sad experience--that early dreams of confounding 

experts by cross-examination usually are dreams indeed. The 

court wonders how much more there would have been for the 

agency to learn but that Dr. Sebrell was no ordinary witness 

and in fact played a key part in the preparation of the 

regulation. 

One of the most cogent statements by Judge Friendly in 

National Nutritional is the following: 

". . . In the absence of a showing of prejudice, 

participants with common interests should be 

grouped by the hearing examiner, and participants in a group should not be permitted to 

cross-examine witnesses called by other members 

of the group." 504 F.2d at 795. 

We can identify the situation involving Dr. Sebrell, 

the key witness involved in National Nutritional, with the 

situation in this case where Northern Plains Resource Council was opposed to the Department of Health on water issues. 
In that case the matter was remanded for cross-examination 

of Dr. Sebrell; in this case Northern Plains Resource Council was allowed to cross-examine the Department of Health 

witnesses because of the adversity of interest. 

It is true that in this case the procedure was not as 

structured as in National Nutritional. On the other hand, 

on at least two occasions the hearings examiner here pointed 

out to counsel the possibility of opening cross-examination 

in the event of a valid adverse issue. He did in fact allow 

cross-examination on the water issues, where an adverse 

position existed. This should have been proof enough that, 

upon a proper showing of adversity, further cross-examination would be allowed. Furthermore, none of the counsel 

for the opposing parties, other than on water issues, ever 

pointed out in what respect his client was in opposition to 

another opponent. On the contrary all that was ever done 

was to interpose general objections, and when given the 

specific opportunity to explain the subjects where adversity 

existed, opposing counsel did not do so. 

The federal courts have in many instances upheld rulings 

in administrative proceedings which denied completely crossexamination. Thus in Fried v. United States (S.D. N.Y. 

1963), 212 F.Supp. 886, plaintiffs alleged denial of due 

process of law because the hearings examiner curtailed 

completely their right to cross-examine an allegedly crucial 

witness but the court upheld the ruling in view of the 

cumulative nature of the witness' testimony. And in ~merican Public Gas Ass'n v. Federal Power Cornm'n. (D.C. cir. 

1974), 498 F.2d 718, all data upon which the commission 

relied was tendered to the petitioners for comment, criticism and for the submittal of rebutting material. ~eti- 
tioners complained that they were denied the right to test 

through cross-examination the underlying bases for the submitted data but the court rejected the claim in holding that 

under the Federal Administrative Procedure Act, crossexamination is not always a right and that the petitioners 

had failed to demonstrate that cross-examination was required for a "full and true disclosure of the facts" under 

the Act. 

The purposes of cross-examination have been stated as 

follows: 

"The office of cross-examination is to test the 

truth of statements of a witness made on direct 

examination. Cross-examination serves as a 

safeguard to combat unreliable testimony, providing a means for discrediting a witness' testimony, and is in the nature of an attack on his 

truth or accuracy. . . The object of crossexamination, therefore, is to weaken or disprove 

the case of one's adversary, and break down his 

testimony in chief, test the recollection, veracity, accuracy, honesty, and bias or prejudice 

of the witness, his source of information, his 

motives, interest, and memory, and exhibit the 

improbabilities of his testimony." 98 C.J.S. 

Witnesses 5372, pp. 125-26. 

Certainly examination by the opponents of other opponents' witnesses would hardly meet the true objectives of 

cross-examination including the main one, to test the truth 

of the witness' statements. As revealed by the record, with 

the exception of the water aspects of the case, the four 

main opposing parties were united in opposing the application. How examination of each other's witnesses could be 

termed "cross-examination" under the circumstances is difficult to understand. In fact, any such interrogation would 

really have amounted to nothing more than direct or redirect 

examination because the sole aim and purpose would have been 

to bolster and support the testimony already produced on 

the direct examination. 
The District Court took the position that section 82- 

4210(3), R.C.M. 1947, now section 2-4-612(5) MCA, imposes a 

mandatory right in all parties to conduct "cross-examination" 

of all witnesses including the right to "cross-examine" the 

author of all agency documents. We find that to construe 

the statute so literally, without considering in the least 

other statutes and case law, is to ignore the entire scheme 

of the MAPA. 

The District Court ordered the Board upon rehearing to 

provide opponents an opportunity to cross-examine agency 

witnesses. This would involve approximately 30 witnesses 

who are scattered throughout the United States and the 

world. The cost involved, not only in money but also in 

time, would be staggering. We have a serious doubt, as a 

practical matter, if the main hearings are any criteria (and 

we believe they are), that the procedure could be accomplished, if at all, in less than six months or more. 

Judge Friendly in National Nutritional, supra, points 

out that the reviewing court should not remand when the 

outcome would clearly be only a repetition of the original 

decision. There must be, as he states in the main text, "a 

significant probability" that the proceeding for which the 

case was remanded would cause the agency to alter its original decision, or a need to create a better record for 

appellate review of the findings. 504 F.2d at 798. 

We find that no substantial rights of respondents/ 

cross-appellants have been prejudiced. The hearings examiner's decision or procedure was not erroneous or in any 

manner a violation of constitutional or statutory provisions. 

We do, however, wish to emphasize that this case is 

unique in both its length and complexity. While we have 
held that the hearings examiner did not err on this crossexamination issue, the procedures followed in the hearings 

should not be used as a model for future hearings before 

various state boards and agencies. We suggest, absent 

general procedural rules for the conduct of hearings adopted 

by a board or agency pursuant to the provisions of the MAPA, 

that prior to any hearing, a state board or agency should 

issue an order setting the procedural guidelines to be 

followed rather than delegating the entire responsibility 

therefor to the hearings examiner. 

In summary we hold that the District Court's opinion 

should be affirmed on Issue Nos. 5, 7, 8, 9, 10, 11 and 12, 

reversed on issues 1 and 2, with issues 3, 4 and 6 being 

rendered moot. 

The opinion of the District Court is affirmed and 

reversed to the extent set forth herein. The decision of 

the Board of Natural Resources to grant to appellants/crossrespondents a certificate of environmental compatibility and 

public need is hereby suspended pending compliance with this 

order. This cause is hereby remanded to the Board of Natural 

Resources to cure certain procedural defects found by the 

District Court and concurred in by us with the order and 

direction that the Board of Natural Resources do the following: 

(1) Make adequate findings of fact and conclusions of 

law with regard to: 

(a) whether using Rosebud coal and not McKay coal 

represents minimum environmental impact, and the reasons 

therefor, and 

(b) whether mine-mouth generation as opposed to loadcenter generation represents minimum environmental impact 

and the reasons therefor, including considerations as to 
relative energy efficiency and the relative impact of electrical transmission versus coal haulage, as required by 

section 70-810(l) (c) , R.C.M. 1947, now section 75-20-301 (2) 

(c) MCA. 

(2) Make adequate findings of fact and conclusions of 

law with regard to: 

(a) clearly designating a transmission line corridor; 

(b) why the Board of Natural Resources prefers the 

chosen corridor to the alternative corridors; and 

(c) what state and local legal requirements must be 

met, and whether in fact they have been met as required by 

section 70-810(l)(f), R.C.M. 1947, now section 75-20-201 

(2) (f) MCA. 

Such findings of fact and conclusions of law shall be 

propounded and entered by the Board of Natural Resources, 

served on the parties hereto, and returned to us for review 

and approval within 90 days from the date hereof. 

We concur: 

. Gulbrandson, District 

for Mr. Chief JusHon. B. W. Thomas, ~istrict 

Judge, sitting for Mr. Justice 

Judge, sitting for Mr. Justice 1 

Sheehy 

Mr. Justice Daniel J. Shea concurs in part and dissents in 

part and will file an opinion later. 
Justice Daniel J. Shea dissenting: 

There are many factors concerning this opinion which 

bother me deeply, but the speed with which it is suddenly 

being sent down and the last paragraph of the opinion are 

something that I must presently confine my remarks to--due 

to a lack of time. Just today I learned that the opinion 

was going down--today. 

Only yesterday one of the members of our Court, at the 

expense of the State, chartered a plane to take the opinion 

to each of the district judgdso that their signatures could 

be obtained. 

The politics behind the urgency of putting this opinion 

down in this fashion are not something that any Court should 

be proud of. I know approximately a month to a month and a 

or 

half ago the Governor andlone or more of his agents talked to 

a member of this Court involved in this case, and expressed 

concern about the political bind in which the Governor was 

being placdbecause of the passage or threatened passage of 

the new bill on Colstrip 3 and 4. I can only say that this 

Court member was not me. The obvious intent was that it would 

sure be nice if this Court could somehow get the Governor off 

the hot seat by speeding up our decision. I am not suggesting 

that those involved intimated at all how our decision should 

go - 

It is common knowledge that the countdown has started 

for the Governor to either veto or sign the legislation concerning Colstrip 3 and 4. Undoubtedly, putting our opinion 

down today will help considerably in helping the Governor 

reach the "right" political decision. To me this entire process 

is shocking. 
Now for a few brief comments on the final paragraph 

of the majority opinion--for which there is no foundation 

in law. The paragraph states: 

"Such findings of fact and conclusions of 

law shall be propounded and entered by the 

Board of Natural Resources, served on the 

parties hereto, and returned to us for 

review and approval within 90 days from 

the date hereof." 

Where in the law, may I ask, does it give this Court the 

power to exercise continuing jurisdiction over governmental 

agencies once we have remanded the case to them for further 

determinations? And where in the law do we have the authority, 

without an appropriate petition, after the governmental agency 

has acted, to completely bypass the Administrative Procedure 

Act and the District Court, in the event one or more of the 

aggrieved parties would have chosen to file a petition for 

review in the District Court? 

There is nothing in the Administrative Procedure Act 

which authorizes this Court to tell any agency how soon it 

may act after a remand from this Court. There is nothing 

that I know of in any of the remaining statutes or case law 

of this State to justify such a result. Once this Court has 

acted on an appeal and remanded a case, either to a District 

Court, or to an administrative agency, we lose jurisdiction. 

We cannot sit here like a king with strings still attached to 

the parties and directing them like puppets to comply with 

our orders. Here we have told the agency to act and get the 

results back to us within ninety days. This is judicial 

usurpation at its worst. 
Mr. Justice Daniel J. Shea dissenting: 

There are many factors concerning this opinion which 

bother me deeply, but because of the speed with which it was 

sent down, I have not had time to formulate a dissent. For 

this reason I must confine my comments at this point to the 

final paragraph of the majority opinion--for which there is 

no foundation in law. The paragraph states: 

"Such findings of fact and conclusions of law 

shall be propounded and entered by the Board 

of Natural Resources, served on the parties hereto, 

and returned to us for review and approval within 

90 days from the date hereof." 

Where in the law, may I ask, does it give this Court the power 

to exercise continuing jurisdiction over governmental agencies 

once we have remanded the case to them for further determinations? 

And where in the law do we have the authority without an appropriate petition, after the governmental agency has acted, to 

completely bypass the Administrative Procedure Act and the District 

Court, in the event one or more of the aggrieved parties would 

have chosen to file a petition for review in the District Court? 

There is nothing in the Administrative Procedure Act which 

authorizes this Court to tell any agency how soon it may act 

after a remand from this Court. There is nothing that I know 

of in any of the remaining statutes or case law of this State 

to justify such a result. Once this Court has acted on an appeal 

and remanded a case, either to a District Court, or to an 

administrative agency, we lose jurisdiction. We cannot sit here 

like a king with strings still attached to the parties and 

directing them like puppets to comply with our orders. Here we 

have told the agency to act and get the results back to us within 

ninety days. This is judicial usurpation at its worst. 

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