No. 86-453 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, ex rel., DEPARTMENT 

OF HEALTH AND ENVIRONMENTAL SCIENCES, 

Plaintiff and Appellant, 

-vsTHOMAS GREEN, d/b/a GREEN'S SALVAGE, 

Defendant and Respondent. 

APPEAL FROM: The District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Katherine J. Orr, Dept. of Health, Helena, Montana 

For Respondent: 

Thomas Green, pro se, Wolf Point, Montana 

Submitted on Briefs: March 12, 1987 

Decided: June 29, 1987 

Filed : JUN 2 9 1987 

*# 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The State of Montana ex rel. Department of Health and 

Environmental Sciences appeals an order in favor of Green's 

Salvage on a charge of failure to obtain a license for 

Green's motor vehicle wrecking facility and for failure to 

shield the facility from public view. 

We reverse and remand. 

There appear to be three main issues on appeal. They 

are : 

1. Did the trial court err in finding that Green's 

Salvage business was not within "public view" and that 

certain portions of the junk yard are exempt from shielding 

requirements? 

2. Did the trial court err when it failed to find a 

violation by defendant of a separate statute requiring him to 

obtain a license to operate or does defendant have an 

inalienable right to acquire junk vehicle property without a 

license and without shielding? 

3. Does defendant's practice of not purchasing junk 

cars from insurance companies make a license unnecessary? 

The defendant, Thomas Green, owns and operates a motor 

vehicle wrecking facility approximately 3 miles west of Wolf 

Point, Montana. From the record we have before us it appears 

that Green collected some junk cars but did not begin to 

significantly accumulate junk vehicles until 1978. At 

present the facility contains approximately 1,200 junk 

vehicles covering 35 acres of land. Green's is one of the 

largest junk vehicle yards in the State. 

The yard complained of is situated at a lower elevation 

than and approximately 4,000 feet to the south of U.S. 
Highway 2, a main access road into Wolf Point for interstate 

traffic from the west. It also sits to the north of and in 

close proximity to the Bureau of Indian Affairs Highway Route 

One, the so-called "Indian Highway," which angles around the 

junk vehicle yard to the west, south, and east sides of the 

facility. Both U.S. Highway 2 and the "Indian Highway" are 

paved public roads. 

The Department contends that the wrecking facility 

should be shielded around its entire perimeter since the 

facility can be seen from both of the public roads from 

various directions. Green has been operating without a 

license for his motor vehicle wrecking facility since he 

began his operation. He submitted various license 

applications over the years but each application was found to 

be incomplete or contain unworkable solutions to the 

shielding requirement. In 1985, Green sent the required 

$50.00 fee to obtain his license which was also denied 

because the plan for shielding his facility was incomplete 

and inadequate. 

Since 1982, Department employees, Larry Mitchell and 

John Geach, charged with implementing the Motor Vehicle 

Recycling and Disposal Act and Junk Yards Along Roads Act, 

worked with Green to help him come into compliance by 

assessing Green's yard on four different occasions and by 

providing detailed compliance advice. 

They worked with Green for several years but he did not 

complete any of his various plans for complying with the 

shielding requirements. From letters dated September 30, 

1982, June 15, 1983, April 3, 1985, and July 31, 1985, Green 

was advised that he was operating without a license and 

needed to obtain one. In the letters of October 19, 1982, 

June 15, 1983, April 3, 1985, and July 31, 1985, Green was 

advised that his application was incomplete or inadequate. 
The Department appeals the judgment for Green which 

found his facility was not within public view from U.S. 

Highway 2; that the facility could not be considered to be an 

eyesore; and that Green need not obtain a license. There is 

some confusion in the record because the trial court appears 

to base its decision at least in part on the visual 

inspection of the premises. However, subsequent to entry of 

these findings, in its order of October 20, 1986, the Court 

agreed to limit the record to oral and written evidence - not 

including the visual inspection since the court reporter did 

not prepare a verbatim transcript of the testimony given 

during the visual inspection by car. We look to the record 

as it was submitted to this Court. 

The Department first argues the lower court erred in 

finding Green's Salvage business was not in "public view." 

It claims that the preponderance of the evidence shows that 

the defendant's business was within public view. 

In a Preliminary Environmental Review dated July 1, 1985 

the Department stated "[tlhis facility is visible from two 

public roads; U.S. Highway 2 to the north and the Indian 

Highway to the east, south and west. All sides of this 

facility must be properly shielded from public view." 

U.S. Highway - 2 

The trial court order stated that by driving down U.S. 

Highway 2: 

Commencing where 6th Avenue North intersects with 

U. S. Highway No. 2, you go West on Highway No. 2 

for 1.9 miles before Green's Salvage can be 

noticed. Then for a distance of 3.2 miles the 

salvage yard can be noticed, then for a distance of 

.6 miles it is out of view and then can be noticed 

again for a short distance of .2 of a mile. . . The 

facility could be noticed but not within "public 

view" as contemplated by ARM 16.14.202(1). 
Section 16.14.202 (1) of the Administrative Rules of 

Montana states: 

All junk vehicles, motor vehicle wrecking 

facilities, and county motor vehicle graveyards are 

required to be shielded from public view. Public 

view is any point six feet above the surface of the 

center of any public road from which the wrecking 

facility and junk vehicles can be seen. 

Department employees Mitchell and Geach on a number of 

occasions viewed Green's Salvage from U.S. Highway 2. Both 

have testified that Green's Salvage is in public view from 

U.S. Highway 2. 

Green neither admits nor denies that his facility can be 

seen from U.S. Highway 2. He testified that he failed to 

obtain a license because of certain individual property 

rights guaranteed by the Constitution and not because of the 

cost of shielding his facility. The defendant gave the 

following written response to an interrogatory posed by the 

Department: 

INTERROGATORY NO. 12: (a) Please state whether it 

is your position that your facility cannot be seen 

from Highway 2. (b) If you admit that your 

facility can be seen from any point on Highway 2, 

please describe whether you believe it should be 

shielded to some degree. (c) If you object to a 

shield from public view from Highway 2, please 

state the basis for your objection. 

ANSWER NO. 12: (a) What can be seen is not always 

comprehended and what is sometimes seen and 

comprehended is not always seen. At night, during 

blizzards and due to heavy fog my business cannot 

always be seen from Highway 2. (b) I do not 

believe shielding is necessary, neither do the 

approximately 2,500 people that signed the 

petition. (c) Prejudice on the part of the State 

of Montana over my choice of property to acquire 

and possess. 
In the judge' s chambers prior to trial, the Department 

contends Green described that all but 50 cars can be seen 

from U.S. Highway 2. 

The "Indian Highway" 

The transcript does not disclose what the 1ndian ~ighway 

is, but a letter to the Solid Waste Bureau from the United 

States Department of the Interior attached to the Appellant's 

brief indicates that it is a public road built with federal 

funds and "in accordance with 25 Code of Federal Regulations, 

Part 170.8, free public use is required." 

From the record it appears that the Green facility can 

be publicly viewed from the Indian Highway as claimed by the 

Department. 

However, the lower court concluded: 

In addition the court finds that the Indian Highway 

was built after the wrecking facility and the law 

does not apply to the Indian Highway, and 

therefore that is not a consideration before the 

Court. If a person were offended by traveling the 

Indian Highway and driving by the facility, they 

could detour North approximately two miles on oil 

to Highway No. 2 and avoid passing by the facility 

without increasing the miles traveled to Wolf 

Point. 

If the evidence preponderates against a trial court's 

finding, this Court may review the record to evaluate the 

evidence and make independent findings of fact. Hagfeldt v. 

Mahaffey (1978), 176 Mont. 16, 575 P.2d 915. Such a review 

of the record is proper in this case for the purposes of 

determining if it preponderates against the trial court's 

findings . The testimony of the witnesses and the court's order 

found that the facility could be seen from both the Indian 

Highway and U.S. Highway 2. It is of no consequence to the 

enforcement of the Motor Vehicle Recycling and Disposal Act 
and the Junk Yards Along Roads Act, that a person might have 

to have a certain eyesight acuity to identify it as a junk 

yard, that a particular highway was built after the wrecking 

facility was started, or that a particular highway was 

thought to be an unnecessary road. These factors are not 

relevant here. 

The applicable laws were in effect since 1967 and apply 

to Green's business which substantially began in 1978. A 

review of the record discloses the preponderance of the 

evidence indicates defendant's facility is in public view. 

It is one of the largest facilities in the State. Defendant 

has known of the laws mandating shielding compliance for 

several years and has not brought his facility into 

compliance at any time during the growth and expansion of his 

business. 

Defendant is not immune from the shielding regulations 

and is required to bring his facility into compliance with 

the applicable laws and regulations. 

The second issue raised by Department is whether the 

trial court erred when it failed to find a violation of S 

75-10-511, MCA, the separate statute requiring defendant to 

obtain a license to operate his motor vehicle wrecking 

facility. The trial court found that defendant was eligible 

to receive a license from the Department upon payment of the 

statutory fee because the shielding requirements did not 

apply to the defendant. 

As we have found in the previous issue, the shielding 

requirements do apply to the defendant's facility. 

These requirements are only one aspect of operating a 

motor vehicle wrecking facility within the mandates of the 

law. Section 75-10-511, MCA, states that any person 

operating a motor vehicle wrecking facility must obtain a 

license. It states: 
(1) A person may not conduct, maintain, or operate 

a motor vehicle wrecking facility . . . without a 

license issued by the department. 

(3) An annual fee of $50 shall be paid to the 

department for the license . . . 

(6) The license expires on December 31 of the year 

issued. 

The specific requirements for obtaining a license are 

set out in 5 16.14.201, Administrative Rules of Montana which 

provides: 

(1) Application for license to operate a motor 

vehicle wrecking facility shall be made on forms 

furnished by the department . . . 

(a) All the information requested on the 

application form must be completed before the 

department can act on the application. 

(2) When the completed application is received, 

the department is to approve the site location 

before a license will be issued. 

(3) Before an application will be approved and a 

license to operate will be issued, the facility 

must be in compliance with the shielding 

requirements of ARM 16.14.202. 

Defendant contends he has an inalienable right to 

acquire junk vehicles on his property without a license. 

While it is true that he does have certain constitutional 

rights to acquire and possess real and personal property, 

these property rights must be balanced with the rights of the 

public which the Department is mandated to protect. 

This question of balance was addressed in State of 

Montana v. Cecil Bernhard (1977), 173 Mont. 464, 568 ~.2d 136 

as follows: 
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be determined by the trial court pursuant to 55 75-20-541 and 

75-10-542, MCA. 

Reversed and remanded. 

We Concur: 

Chief Justice 

Justices 
Mr. Chief Justice J. A. Turnage dissenting: 

Appellant contends that he has a constitutional right 

to operate his motor vehicle wrecking facility without the 

statutorily-required license. This contention is not 

correct. 

Section 75-10-501 (7), MCA, is the statutory basis for 

appellant's problem and provides: 

"Public view" means any point 6 feet 

above the surface of the center of a 

public road from which junk vehicles can 

be seen. 

I have some concern that this definition meets the 

constitutional test of due process when analyzed with the 

statutory purpose of beautification of the state. The statute is vague in that it offers no rational guide as to what 

public view may require, whether a pervasive intrusion upon 

the public view or a fleeting glimpse from a high point on 

the public road. 

District Judge James Sorte applied common sense when he 

ruled that the Green facility was not within public view from 

U. S. Highway No. 2 as contemplated by the statute. A person 

may have been able to espy the vehicles from Highway 2; 

however, to have one ' s aesthetic senses offended thereby 

would require a bent for automotive voyeurism. Apparently, 

the over 2000 residents of R.oosevelt County who signed a 

petition in support of Green's facility had no complaint. 

The gravel country road referred to as the "Indian 

Road" apparently affords a better view of the facility and 

places it within the technical grasp of the rule and statute. 

However, in light of the purpose of the statute to enhance 

beauty, this may well be a de minimus intrusion on 

regulation. 
Judge Sorte has wisely forecast the result that will 

surely follow in the event of a closure of the Green facility. The approximate 1200 vehicles located there, or their 

successors, would be strung out across Roosevelt County, 

probably resting on knolls and prairie dog mounds in clear 

public view. 

The solution, not to be taken as a precedent, would be 

to affirm the District Court. This would be an application 

of judicial common sense and in the best interests of the 

citizens of Roosevelt County. 

The claim of appellant that he has a constitutional 

right to operate the facility without a license is rejected. 

In all events, the parties to this cause are encouraged 

to continue to work out a rational solution. 

Chief Justice 

Mr. Justice L. C. Gulbrandson, dissenting: 

I join in the dissent of 

Justpce