COMPLAINT AND APPLICATION FOR ALTERNATE OF MANDATE Thomas M. France, Esq. National Wildlife Federation 240 N. Higgins Ave., Suite #2 Missoula, MT 59802 (406) 721-6705

David K. Wilson, Esq. Reynolds, Motl and Shenvood 401 N. Last Chance Gulch Helena, MT 59601 (406) 442-3261

MONTANA FIRST JUDICIAL DISTRICT COURf, LEWIS AND CLARK COUNTY

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MONTANAE~RONMENTAL ) INFORMATION CENTER, ) CAUSE NO. CLARK FORK-PEND ) OREILLE COALITION, WOMEN'S } VOICE FOR THE EARfH, ) ) Plaintiffs, ) COMPLAINT AND APPLICATION ) FOR ALTERNATE WRIT v. ) OFMANDATE ) DEPARfMENT OF ENVIRONMENTAL ) QUALI1Y, ) ) Defendant. ) * * * * * * * * COME NOW Plaintiffs, with their claims for declaratory relief and against the Department of Environmental Quality, and allege as follows: I. INTRODUCTION

1. The Seven-Up Pete Joint Venture (SPJV) has submitted an application for a massive open-pit gold mine (McDonald Project) in the upper -Blackfoot River valley, near the confluence of the Landers Fork and Blackfoot Rivers. SPJV is a partnership between Phelps Dodge Mining Co. and Canyon

1

I ,l ,. f Resources Crop. and has been actively exploring gold deposits in the area of the mine for the past several years. 2. This Complaint challenges actions by the Montana Department of Environmental Quality (DEQ) in approving actions connected with this mine · proposal. This summer, DEQ illegally amended a mineral exploration license held by SPJV to allow for the discharge of groundwater containing high levels of arsenic and .zinc into the shallow aquifers of the Blackfoot and Landers Fork Rivers. DEQ's actions violate the Montana Water Quality Act and the Montana Environmental Policy Act, the Montana Administrative Procedures Act and the Montana Constitution. 3. DEQ's violation of these laws creates a substantial and significant risk of pollution in the Landers Fork and Blackfoot Rivers.

II. PARTIES, JURISDICTION, AND VENUE 4. The Montana Environmental Information Center (MEIC} is an incorporated Montana non-profit organization with approximately 1, 500 members, most of whom live in Montana. MEIC was formed in 1973, and since

that time has been actively involved in issues relating to the protectio~ and enhancement of water quality, fish and wildlife and their habitat, and the wise use of Montana's natural resources. MEIC members regularly float, fish, hunt and view wildlife on the public and private lands and waters in the vicinity of the waterways at issue in this case. Its 1994 annual "Rendezvous" was held in Lincoln, Montana. MEIC's office is in Helena, Montana. 5. The Clark Fork-Pend Oreille Coalition (CFC) is a non-profit corporation organized under the laws of Montana. CFC has approximately 1000 members, with most members residing in the Clark Fork drainage of Montana and idaho. For the past 10 years, CFC has worked to improve water quality in the Clark Fork drainage. The Blackfoot River is a major tributary to

2 the Clark Fork, and the potent~al impacts of the McDonald Project are a significant threat to water quality throughout the basin. Members of the Clark Fork Coalition regularly, hunt, fish, swim, and float in the Blackfoot River drainage.

6. Women's Voice for the Earth (WVE) is a non-profit organization based in Missoula, Montana, dedicated to protecting biological diversity of the Northem Rockies. WVE members live, work and recreate on and around the Blackfoot River, and many of its members depend upon the Missoula aquifer, which could be impacted by any pollution- of the Blackfoot River, for their drinking water. 7. Defendant Montana Department of Environmental Quality (DEQ) is the state agency charged with protecting water quality and administering and permitting hard rock mines.l DEQ must comply with the Montana Water Quality Act, §§ 75-5-301 et seq., MCA, the Montana Metal Mine Reclamation Act,§§ 82-4-301 et seq., MCA, the Montana Environmental Policy Act,§§ 75-5- 101 et seq., MCA, the Montana Administrative Procedures Act, §§ 2-4-101 et seq., MCA, and the Montana Constitution, 8. This Court has jurisdiction over this action pursuant to Article VII, Section 4 of the Montana Constitution. 9. Venue lies in thisCourt by virtue of§ 25-2-126(1), MCA. III. GENERAL ALLEGATIONS 10. Seven-Up Pete Joint Venture (SPJV), is presently seeking a mine permit from DEQ for what will be the largest gold mine in Montana, and one of

1 Prior to the 1995 legislative session, the Metal Mine Reclamation Act was administered by the Department of State Lands and the Water Quality Act was administered by the Department of Health and Environmental Sciences. The legislature reorganized the state's natural resource agencies and consolidated all regulatory functions into a new agency, the Department of Environmental Quality.

3 the largest open:..pit, cyanide-heap leach mines in the world. The mine, known as the McDonald Project, will be situated on the headwaters of the Blackfoot River. 11. The Blackfoot River is one of Montana's most famous rivers. Immortalized in Norman MacLean's classic book, A River Runs Through It, the . Blackfoot attracts thousands of anglers, floaters and other recreationists every year. The Blackfoot supports a world-renoWned trout fishery and provides habitat for many different species of fish and wildlife. In particular, the Blackfoot supplies some of the best remaining habitat for the imperiled bull trout, a species the U.S. Fish and Wildlife Service has found is warranted for

listing under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. 12. While the lower Blackfoot contains high-quality fish habitat, much of the upper river has been severely impacted by years of mining, and the river is only now beginning to recover from these activities. 13. The Landers Fork River is an important tributary of the Blackfoot in terms of both water flow and fish habitat. The Lander Fork provides critical spawning and rearing habitat for bull trout. 14. DEQ will be preparing an Environmental Impact Statement (EIS) on the mine permit application submitted by SPJV. This EIS and permit evaluation will be conducted pursuant to the Metal Mine Reclamation Act (MMRA) and the Montana Environmental Policy Act (MEPA). In 1992, and prior to submitting its mine permit application, SPJV applied for an exploration license under the MMRA, and DEQ prepared an environmental assessment pursuant to MEPA. Under Exploration License No. 00497, SPJV was authorized to collect geophysical information and generally explore the mineral formations associated with the proposed mine. The EA conducted for

4 the exploration did not fully evaluate the pumping which is the subject of this suit. 15. On June 2, 1995, SPJV submitted a new work plan for conducting extended pumping at the McDonald Project near Lincoln, Montana. SPJV sought approval for the pumping under Exploration License No. 00497. The pumping is presently underway and is apparently intended to provide data to help determine the long term response of dewatering at the McDonald Project. The letter seeking approval to amend the Exploration License 00497 is attached

as Plaintiffs' Exhibit 1. 16. Under the pumping proposal submitted by SPJV, groundwater will be pumped from the bedrock aquifer and discharged into two infiltration galleries. One gallery is located in the Blackfoot River alluvium and one is in Landers Fork alluvium. 17. On June 14, 1995, Scott D. Spano, the Exploration Program Supervisor at DEQ's Hard Rock Bureau, approved SPJV's application to amend Exploration License No. 00497 to allow the pumping. Through its June 14 letter, DEQ concurred with the company's position that a MPDES (Montana Pollutant Discharge Elimination System) permit was not required for the . discharges of polluted waters into the Blackfoot and Landers Fork alluvium. This letter is. attached as Plaintiffs' Exhibit 2.

18. At some point in June, DEQ realized that the water being pumped out of the bedrock and discharged into the Blackfoot and Landers Fork alluvium contained concentrations of arsenic, zinc and iron that exceeded

water quality standards. As such, these discharges were in violation of th~ Montana Water Quality Act,§ 75-5-401, MCA. 19. On June 30, 1995, Scott Spano of DEQ orally rescinded his approval of the Exploration License due to his "erroneous impression" that the

5 well water was of the same quality as the alluvial water. This conversation was memorialized by Mr. Spano, and his memorandum is attached hereto as Plaintiffs' Exhibit 3. 20. In response to these water quality violations, SPJV hired consultants who proposed a solution to the problem. Water Management Consultants suggested that if the Blackfoot and Landers Fork alluviums were declared mixing zones for pollutants, then the discharges of arsenic, zinc and iron could continue. See Plaintiffs' Exhibit 4. 21. On July 31, 1995, DEQ gave SPJV oral authorization to proceed with its testing, with the understanding that a mixing zone would be identified so as to bring the discharges into the alluvials into compliance with state law. As a basis for the mixing zone calculations, DEQ used the data collected by Water Management Consultants. 22. On August 10, 1995, DEQ issued formal written authorization in a letter to SPJV. See Plaintiffs' Exhibit 5. That letter contained two "Statement of Basis", one for the mixing zone in the Blackfoot River Alluvial Aquifer, and one for the mixing zone in the Landers Fork Alluvial Aquifer. While this authorization formally identified miXing zones in the alluvium for the two pump tests, it also found that the Landers Fork discharge was directly connected to surface water. Further, it indicates that the water quality of the water being pumped is worse than the water quality of the receiving waters. Despite this finding, no MPDES permit was required by DEQ. 23. To the best of Plaintiffs' knowledge, SPJV has been conducting pumping and discharging polluted waters from the wells into the mixing zones, and in the case of the Landers Fork mixing zone, into the Landers Fork River, since before DEQ issued its August 10, 1995 authorization, and continues to do so.

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24. Plaintiffs, as entities using the Blackfoot drainage, have been damaged and will continue to be damaged by the actions of the DEQ in allowing SPJV to continue to violate the law as set forth above and pollute the Blackfoot and Landers Fork Rivers. Plaintiffs received no notice of the actions of DEQ, and only found out about them, by accident, several weeks after

approval was granted.

COUNT I

THE APPROVAL OF THE PHELPS DODGE PUMP TESTS VIOLATES MONTANA'S NON-DEGRADATION POLICY.

25. The preceding paragraphs are realleged as though set forth in full hereunder. 26. Section 75-5-303, MCA, establishes a policy of protecting high­ quality waters from pollution. By statute and regulation, both the alluvium and the waters of the Landers Fork and Blackfoot are high-quality waters. 27. Section 75-5-303(3). MCA, prohibits DEQ from authorizing activities that degrade high -quality waters unless a preponderance of

shows that (in summary): (1) the degradation is necessary and there are no

feasible alternatives; (2) the proposed project will result in important economic or social development; (3) existing and anticipated use of state waters will be fully protected; and (4) the least degrading water quality protection practices

are feasible. 28. The 1995 legislature amended the Water Quality Act and established a list of activities that it categorically determined would not degrade high-quality waters regardless of the amount of pollution these _ activities produced, § 75-5-317, MCA, and were therefore exempt from the provisions of§ 75-5-303 (3) and (4), MCA. Correspondence between DEQ and

7 SPJV indicates that a determination was made that the pump tests were considered exempted by the DEQ from Montana's nondegradation policy by §

75-5-317 (2)UJ, MCA, which exempts, among other things, water well and monitoring well tests. The pump tests being conducted by SPJV do not qualify for this exemption from Montana's nondegradation policy. 29. DEQ has failed to follow the provisions of§ 75-5-303, MCA, in this instance. DEQ has acted arbitrarily and· capriciously in its haste to accommodate SPJV and has not weighed the corresponding harm to the environment and the public as it is required to do under § 75-5-303 (3 & 4), MCA.

COUNT 2 . DEQ FAILED TO FOLLOW THE REQIDSITE PROCEDURE IN CREATING THE MIXING ZONE

30. The preceding paragraphs are realleged as though set forth in full hereunder. 31. Mixing zones are areas where the concentrations of pollutants are allowed to exceed water quality standards. Mixing zones are a polite term for pollution dilution zones. Mixing zones are allowed by statute, but their designation is closely controlled. See § 75-5-103(14). MCA; § 75-5-301 (4), MCA. 32. The water being pumped by SPJV from a deep aquifer into the Landers Fork Alluvial aquifer, and thence into the Landers Fork River. exceeds state standards for arsenic. 33. The mixing zone created by DEQ for SPJV Exploration License violates the procedures and standards set out in § 75-5-301(4), MCA, which requires areas designated as mixing zones to have (l) the smallest practicable · size, (2) a minimum practicable effect on water uses, and (3) definable

8 boundaries. No such findings are contained in either statement of basis attached as Exhibit 5. 34. ARM § 16.20.1010 authorizes DEQ to allow the discharge of pollutants to groundwater where a mixing zone has been established pursuant to law and the regulations ARM§§ 16.20.1801 through 16.20.1810. 35. ARM § 16.20.1804 precludes the creation of a mixing zone if it would "threaten or impair existing beneficial uses." It also requires specific procedures for DEQ to follow, called a "water quality assesment", when establishing a mixing zone. DEQ failed to follow the water quality assesment procedure set forth at ARM§ 16.20.1804 in establishing the mixing zones for exploration permit 00497. The discharge of arsenic and zinc from the deep aquifer into shallow groundwater threatens domestic water supplies and fisheries values and as such seriously impacts existing beneficial users.

3{). ARM § 16.20.1805(2) precludes DEQ from creating a mixing zone where discharges to surface water will harm beneficial uses. The Statement of Basis for the Landers' Fork Alluvial Aquifer mixing zone includes a discharge to the surface water of the Landers Fork River. (Exhibit 5, Landers Fork Alluvial Aquifer Statement of Basis, page 2) The discharge of arsenic and zinc from the deep aquifer into shallow groundwater, and in turn, into Landers Fork, threatens domestic water supplies and fisheries values and as such seriously impacts existing beneficial users. 37. DEQ has failed to follow its own regulations for the creation of mixing zones for groundwater and surface water when it created the mixing zones for the Blackfoot and Landers Fork aquifers.

9 -·-...

COUNT 3

DEQ FAILED TO ISSUE A MPDES PERMIT FOR THE LANDERS FORK RIVER

38. The preceding paragraphs are realleged as though set forth in full hereunder. 39. Pursuant to § 75-5-40l(l)(a), MCA, an MPDES permit is required for any person who discharges any pollutant into surface waters. 40. DEQ's Statement of Basis for the Landers Fork mixing zone (Exhibit 5) discloses that there is a direct· connection between the Landers Fork alluvial and the river, and that pollutants are migrating into the surface waters of Landers Fork River. 41. Because there will be a discharge of pollutants to the Landers Fork which will cause the receiving waters to exceed standards, the exemption from the permit requirements set forth at§ 75-5-40l(l)(b), MCA, does not apply and an MPDES permit is required. The failure of DEQ to require an MPDES permit is a violation of the Montana Water Quality Act.

COUNT 4

DEQ'S FAILURE TO COMPLETE AN ENVIRONMENTAL ASSESSMENT ON THE PUMP TESTS IS A VIOLATION OF MEPA.

42. The preceding paragraphs are realleged as though set forth in full hereunder. 43. The Montana Environmental Policy Act and rules promulgated · thereunder require preparation of an Environmental Assessment (EA) when it is not clear without the preparation of one whether the proposed action is a major one significantly affecting the quality of the human environment. ARM

§ 16.2.626.

1 0 44. . The DEQ prepared an EA for the pump tests prior to its discovery

that the pumped ground water exceeded existing concentrations in receiving water. There was no public involvement in or notice of this EA. The EA did not discuss or contemplate the pump tests herein complained of. Those pump tests, which are being conducted in violation of the Montana Water Quality Act, have the potential to significantly affect the quality of the human environment, and DEQ was required to conduct an EA prior the approval of the amendment to Exploration License 00497.

COUNT 5

DEQ HAS VIOLATED THE MONTANA ADMINISTRATIVE PROCEDURE ACT 45. The preceding paragraphs are realleged as though set forth in full hereunder. 46. The Montana Administrative Procedure Act prohibits agency decisions that are arbitrary, capricious and unlawful. 47. The failure of DEQ to comply with the requirements of Montana's nondegradation policy, the laws and regulations for the establishment of mixing zones, the laws and regulations for the issuance of MPDES permits, and duties imposed by the Montana Environmental Policy Act are all decisions that are arbitrary, capricious and unlawful. COUNT 6 CONSTITUTIONAL VIOLATION 48. The preceding paragraphs are realleged as though set forth in full hereunder. 49. Article IX, Section 1 (1) of the Montana Constitution requires the State to maintain and improve a clean and healthful environment for present and future generations. Article IX, Section 1 (3) requires the Legislature to

1 1 provide adequate remedies for the protection of the environmental life support system from degradation. 50. To the extent that §§ 75-5-301, 303(3) through (8), 317 and 40l(l)(b) and (5), MCA, allow degradation of state waters by means of degradation waivers, the creation of mixing zones, allowance of "non­ significant activities" which degrade water quality, or the exemption from permit requirements of certain polluting activities, those statutes are unconstitutional in violation of Article IX, Section 1 of. the Montana Constitution.

COUNT SEVEN

MANDAMUS

51. The preceding paragraphs are realleged as though set forth in full hereunder.

52. The DEQ has failed in its clear legal duty by failing to: a) require SPJV to go through the degradation petition requirements of§ 75-5-303, MCA, and the rules promulgated thereunder, prior to issuing the ainendment to Exploration License 00497; b) follow the proper procedure for establishment of a mixing zone, as set forth at § 75-5-301, MCA, and the rules promulgated

thereunder; and 3) require an MPDES permit for discharges to the surface waters of the Landers Fork River.

53. Plaintiffs have no plain, speedy and adequate remedy in that they only discovered DEQ's actions after activity under the mixing zone amendments were under way, and those activities, which harm the water quality of the Landers Fork and the Blackfoot River. are ongoing. 54. A peremptory writ of mandate is necessary and proper pursuant to § 27-26-101, et seq., MCA.

1 2 COUNT EIGHT

DECLARATORY JUDGMENT

55. The preceding paragraphs are realleged as though set forth in full hereunder. 56. As a non-preferred alternative to mandamus, Plaintiffs request that the Court grant them declaratory judgment on Counts One through Six of this Complaint.

IV. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request this Court:

1. Declare Exploration License 00497 void for the DEQ's failure to follow the law in issuing the statements of basis (Exhibit 5) which allow two mixing zones in the Landers Fork and Blackfoot alluviums. 2. Issue- a peremptory writ of mandate against Defendant DEQ to compel DEQ to: a. Require SPJV to go through the degradation requirements of

§ 75-5-303, MCA, before allowing SPJV to use the mixing zones; b. Follow the proper statutory and regulatory procedure for the creation of mixing zones; and c. Require an MPDES permit prior to allowing SPJV to discharge to the surface waters of the Landers Fork. 2. Alternatively, issue a permanent ordering DEQ to suspend Exploration License 00497 pending full compliance with the Montana Water Quality Act, the Montana Environmental Policy Act, and the Montana Constitution.

3. Grant Plaintiffs their reasonable costs ~d attorneys' fees pursuant to

§ 27-26-402, MCA; and

1 3 4. Grant whatever further relief this Court deems is just and proper.

DATED this ~ day of October, 1995.

~t(. f/1/2----'--- Fu~mas M. France · Attorney for Plillntiffs

D . W. Wilson, Jr. Attorney for Plaintiffs

VERIFICATION

STATE OF MONTANA :ss. County of LeWis & Clark ) James Jensen, being first duly sworn, deposes and says:

That he is one of the Plaintiffs in the foregoing; that he has read and knows the contents thereof; and that the facts and matters contained therein are true, accurate, and complete to the best of his knowledge and belief.

On this ~ day of . 1995, before me, a notary public, personally appeared James Jensen, known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same.

Not~(,k~~ Public for e State of Mont~ Residing at: ~ My commission expires: 1~ /s)40

1 4 ORDER ON DEFENDANT'S MOTION TO DISMISS RECEIVED

llAR 1 e 1996

I DEQ LEGAL UNIT 1- -u'J ^: -' 2 AuICE " 3 4 5

6 7 I.IONTNIA FIRST JUDICIAL DISTRICT COURT 8 COI'NTY OF LEWTS AND CI,ARK 9 ******************) 10 ) I{ONTANA ENVIRONI{ENTAL INFORMATTON ) Cause l{o. BDV-95-1184 11 CENTER, CT,ARK FORK-PEND ORETLLE ) CoALITION, WOMEN'S VOrCE FOR 12 THE EARTH,

13 Plaintiffs,

14 vs.

15 DEPART}IENT OF E}WTRONI{ENTAL ORDER ON DEEENDAMT''S QUALITY, uorfroN To Drsurss 16 Defendant.

17 ******************)

18 Presently pending before the Court is Defendant's 19 motion to disniss parts of the complaint.

20 This case arises out of certain actions taken by the

21 Departnent of Environnental guality (DEQ) on its exploration

22 license OO497, which was issued to Seven-Up Pete Joint Venture

23 (SPW) . DEQ allowed SPJV to conduct pump tests and create mixing

24 zones near its proposed nrine just outside of Lincoln, Montana. 25 The well-purnping was done by SPJV to garner information on T de-waterlng tlre uineral deposits. 2 Plaintlffs contend that the subsequent discharges from 3 the punping tests Lnto the Ianders Fork and BLackfoot Rivers are 1 discbarges Ln excess of water quatlty standards. 5 On October 6, Lggs, Plaintiffs filed this suit seeking relief by a wrlt of nandate, an LnJunction, and declaratory Judgrnent. On October 27, 1995, this Court denied tlre request for a wrLt of uandatb. Thereaf,ter, the Court was infomed that on or about n NovenbeE 8, 1995, SPiIV gaid its punping activitl.es would cease. il According to DEQ, the cessation of tlre punping 12 activities ended the authorization to conduct the well tests thaf 13 was earll.er issued. Thus, contends DEQ, aLL of CountE 3 and 5 11 and parts of Count 2 are moot. 15 UCIrIOtt $O DISHTSS 16 The Montana has srrnmarl,zed the nrles to be applied Ln deciding a motion to dl,smiEs. flheeler v. ttoe, 1F3 IE Mont. L54, 161, 515 P.2d 679, 583 (1973). A rarely 19 grants a motion to disnlss for fallure to state a claiu upon m which rel.ief can be granted. " [A] complaint should not be 21 di,snissed for failure to state a claim unless it appears beyond 2, doubt that the pl.aintlff can prove no set of facts in support of 23 his clain which would entitle hin to relief.tr lgf at 161, 515 21 P.2d at 683 (citations omitted). 25 ORDER ON DEFEITDANT'S tlCIffON TO DfSlffSS Page 2a I Motions to disrniss should only be granted if it appears 2 clearly on the face of the complaint that there is an insuperable 3 bar to relief. frln other words, dismissal is justified only when 4 the allegations of the conplaint itself clearly dernonstrate that

5 plaintif f does not have a clain. tr Id. See also Buttrell v.

6 llcBride Iand & Livestock Co. , 170 Mont. 296, 298, 553 P.zd 4O7, 7 408 (1e76). 8 A notion to dismiss only tests whether a claim has been 9 adequately stated in the conplaint. The court's inquiry is 10 linited to the contents of the complaint. A motion to disniss

11 adnits all of the well-pleaded allegations of the complaint. See 12 Gebhardt v. D. A. Davidson, 2O3 Mont. 384, 389 | 66L P.2d 855, 13 858 (L983). 14 Based on the above rules that apply to motions to 15 dismiss, Defendant's motion to disnriss on the ground of mootness 16 nust be denied. The question as to whether pumping has stopped 17 is not something that is contained in the courplaint. This 18 information was provided to the Court after the filing of the 19 conplaint. Further, this Court has no idea as to whether the 20 punping could be reinstituted under the previous authorization. 21 t lhe Court realizes that it has authority to treat tbis 22 issue as a motion for sunmary judgment, but declines to do so. 23 If DEQ wants to file a motion for summary judgment on this issue, 24

25 ORDER ON DEFENDANT'S l{OtfON TO DfSffSS Page 3 it is certainly f,ree to do so. Certainly, such a procedure would better allow the Court to be fully advised of all of the paraneters involved in the potentiaL of any new punping. STTNDIIIG DEQ also requests that Count 7 of the conplaint be dLsnl.seed. Count 7 asserts an alleged constitutLonal violation. In Lts enti.rety, Count 7 reads as follows:

. @IISTTfTIIIONAI, VIOIATTOTT 53. The preceding paragraphs are realleged as though set forth in full hereunder. 54. Art,icle IX, Section 1 (X) of the llontana ConEtitutlon requires the State to rnaintain and improve a clean and healthful environment for present and future gener"- tions. ArE,icle IX, Section 1 (3) requires the Iegielature to provide adequate remedies for the protection of the environnental life support system fron degradation. 55. To the extent that S$ 75-5-301, 303(3) through (8), 3L7 and 401(1)(b) and (5), l,tCA, allow degradation of state waters by DeanE of degradatLon waLvers, the creation of nixing zones, allowance of nnon-sLgnLficant actj.vitiesrr which degrade water qualityr ot the exenption frou pemit requirenents of certain polluting activi- ties, those statutes are unconstitutional in violation of Article fX, Secti.on 1 of the Montana Constitution. DEQ contends that Plaintiffs do not have standing to attenpt a facial attack on the constitutionality of the above statutes. DEQ also suggest that Plaintiffs have no Etanding to

ORDER.OI DBEEIIDAIIT'S llCIrfON TCt DISlfisS *U. do 1 attack the constitutionality of some of the statutes mentioned in 2 the conplaint since some of those statutes have nothing to do 3 with this case.

4 Based on the aforementioned rules that deal with how a 5 court is to view a notion to dismiss, this Court does not feel it 6 appropriate to rule on the issue of whether Plaintiffs have 7 standing in a rfacialtr versus an fras appliedtt constitutional

E challenge. 9 However, that leaves us the question of whether 10 Plaintiffs have standing to charlenge aII of the statutes 11 referenced in their conplaint, whether the challenge be rrfacialft 12 or rf as appliedtt. xlt is a well-established principle that a 13 party does not have standing to challenge the constitutionality 14 of a statute unless he has been adversely affected by the t5 challenged statute." Allmaras v. Yellowstone Basin Properties, 16 248 Mont. 477, 48O, 8L2 p.2d 77O, 77t (i.991). 17 Plaintiffs allege in their that they use the 16 Brackfoot River and that the river is adversely inpacted by the 19 activities mentioned in the complaint. Specifically, Plaintiffs 20 reference the pumping tests as having caused detrinental changes 21 in, water guality. See plaintiffs' Brief in Response to Motion to 22 Disniss, p.L2. That nray be welr and good but, as pointed out by 23 DEQ, several of the statutes referenced by Plaintiffs in their 24 complaint don't have anything to do with the pumping tests here 25 oRDER ON DESENDANT'S UOTTON TO DrSrrSS Page 5 I ln question. rn thelr response brief, plaintiffs fall to 2 articulate any reaEon why they shouLd be allowed to challenge trLn 3 things such as situ uining of uraniun faciritLeg . . . . r fuc 1 sectLon 75-5-4oL(5) (i). section z5-5-401(5) contains Eome 11 5 t14pes of dl.sctrarges Lnto state waters that are not subJect to 6 the grround water pernlt requJ.rements adopted by the Etate. I Plalntl.ffe seem. to be dlsputing onty section 7s-5-4o1(s)(J). Eowever, tlrey rralve totally failed to articulate any reason why ttrey shourd be allowed to challenge the otber exemptions contained Ln Section 75-5-4Ot(5). 1,1 fn its reply brlef in support of its notion to disnise, 72 DEQ haE dlvided ttre Etatutes mentioned in Count 7 of plaintlffrrl 13 complaint into three categories. Fl,rst are the statutes that 11 have no bearing on thls case and were never used by the $ Departnent for the activities complained of by Ptaintiffs. These 16 include section 75-5-303 and section 25-5-301(5). then, there 17 are statutes that have exenptions that donrt apply to the weLl 16 testLng here involved, such as sectLon 7s-s-3L7 that Lists 1g activitLes that are presumed not to cause degradation, and m sectLon 75-5-401(5) and its 11 tlpes of activities. The fLnal 21, category contains those statutes that were used by DEe in 22 petnitting the well-testing here involved. Those are Sections 23 75-s-3o1(4), Section zs-s-4o]-(1) (b), Section 7S-S-3L? (2) (j), and 24 section 75-5-401(5) (j). rf these are the statutes that have 25 ORDER ON DEFEIfI'AIIT'S U(IIIOI| TO DISIfiSS Paee "O I caused the problems mentioned in the complaint, then Plaintiffs, 2 at least at this stage of the proceeding, should be allowed to 3 continue with their attack on those statutes, whether on a facial 4 or as applied standard. It is this last category of statutes 5 that the Court deternines should sunrive the notion to dismiss. 6 Part of the Courtts problem in this regard is that Plaintiffs haventt been v"Ty specific in their reply brief concerning which 6 statutes have c6,used the problems nentioned in the complaint. 9 Based on the above, IT fS EEREBY ORDERED, Af,LntDGED, AIID 10 DECREED as follows:

11 L. Defendant's motion to disniss on the basis of

12 mootness is DEilfED.

13 2. Defendantts notion to disniss Count 7 on the 14 basis of a lack of standing is GRAIITED except that Plaintiffs 15 shall, dt least at this stage of the proceeding, be deemed to 16 have standing to challenge the following statutes: Section 17 75-5-301(4), Section 75-5-4oL(1) (b), Section 75-5-3L7 (2) (j), and

18 Section 7s-5-401(s) (j) . 19 DATED this day of March, L996. 20

21 .Distr 22

23

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25 ORDER ON DEFENDANT'S UOIIION TCt DISUISS Page 7 V, (

pc: Thouas !1. France David K. W. Wilson, ifr. John Northr/DEQ Ronald F. lfaternan 3 UEIC. ord 1 k 5 6 t [, l.' I

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11

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Page "l '':If,,.,r;ii ORDER { i' r '-- -"--e. ; ;' S',jt -tf ly RECEIVED nr ..ii,lt'l I ',ltI

AUG 0 e 1gs6 lrr,- ;i ,, _-. l..t rfr hL/U '.; ,.; : : ],,, Jll DEQ L€GAL UNIT 1

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6 MONTANA FIRST JUDICIAL DISTRICT COURT ] a 7 . LEWIS AI{D CLARK COI.]NTY 8

9 MONTANA ENVIRONMENTAL INFORMATION CENTE& CLARK 10 FORK.PEND OREILLE COALITION, WOMEN'S VOICE 11 FOR TTIE EARTH, Cause No. BDV-95-1184 t2 Plaintiffs, ORDER

13

l4 DEI}ARTMENT OF ENN,TROhIMENTAL QUALITY, 15 Defendant, 16 -and- l7 SEVEN-UP PETE JOINT VENTURE, 18 lntervenor. 19 20 , Plaintiffs' request for a temporary resfiaining order is DENIED. The 2l matter will be reconsidered by the Court at the hearing to be held on August 13,

22 1996, at 2 p.m. 1 23 DATED tJtts f day of August 1996.

24

25 I pc: Leo Bsrv John North 2 Ron Waterman 3 6l*ffis,[ffi'. 4 deq.or4

5

6

I l ,'.' 8

9 l0 ll t2 t3 t4 I5 t6 t7 t8 l9

20 2t,

22

23

24

25 ORDER I,

RECEIVED ,,ii AUG 0 s 1996 -"r l':n , I -i..... l'' DEQ LEGAL UNIT H.,,: ,t | ..t *.) 1

ii ,, ,'-r 2 lil-UD .JuJ L i.4;rii-i it i a J

4 )

6 MONTANA FIRST JUDICIAL DISTRICT COURT 7 - TEWTS A}ID CLARK COI.INTY 8

9 MONTANA ENVIRONMENTAL ) INFORMATION CENTER, CLARK 10 FORK-PEND OREILLE ) COALITION, WOMEN'S VOICE 11 FOR TIIE EARTH. ) Cause No. BDV-95-1184

T2 Plaintiffs, ) ORDER

13 ) l4 DEPARTMENT OF ) ENVIRONMENTAL QUALITY, 15 ) Defendant, 16 ) -and- t7 ) SEVEN-IJP PETE JOINT VENTURE. 18 ) Intervenor. 19

20 This matter is presently before the Court on cross-motions for

2L summary judgment filed by Plaintiffs and by Defendant (the State). Both parties

22 are seeking summary judgment on Counts 4,5,6, and part of Count 7 of the

23 complaint filed in this matter.

24

25 t// I

I FACTUAL BACKGROT'NI)

2 On October 4, 1995, Plaintiffs filed their complaint. In the

3 complaing Plaintifrs sought a writ of mandamus over the State's approving a series

4 of pump tests to be conducted by fte Seven-Up Pete Joint Vmture (SPIV). The

5 pump tests were to be conducted near a proposed syanide heap leach mine

6 proposed to be operated by SPIV near Lincoln, Montana.

7 The wdt of mandamus was denied by the Courl Thereafter,

8 Plaintitrs sought a priliminary injunction However, on the day of &e hearing on

9 the preliminary iqiunction (Norrcmber 8, 1995), the Court was advised trat the

l0 pump tests had ceased-

ll thereafter, the State moved to dismiss portions of the complaint,

t2 which motion was denied by this Court on Maroh 18, 1996.

l3 Plaintiffs' current request is for two forms of relief. The first is a

14 preliminary iqiunction seeking to ruspend the exploration license issued by fte

t5 State to SPW. Plaintifrs contend that the Sate has not complied with the law in

t6 issuance of the exploration license.

17 Further, Plaintifrs seek summary judgnent declaring that recently

l8 enacted portions of the Water Quality Act are unconstitutional. Plaintiffs also seek t9 a declaration that the Sate has violated the Metal Mine Reclamation Acg

20 Montana's Environmenal Poliry Act, and Montana's Administrative Procedure 2l Act

22 SPIV consists of the finns of Phelps Dodge Corporation and Canyon

23 Resonrces. They propose to mine an axeanear Lincoln, Montana, which has been

24 called the McDonald Project The mine is seven miles east of Lincoln and is near

25 ORDER- PAGE 2 I the confluence of the Blacldoot and Landers Fork fuvers.

2 On June 2,1995, SPIV submitted plans to the State to do certain

J aquifer tests to the area near the McDonald Project. ,See Exhibit 1 to the

4 complaint. Three water wells were to operate from July through October of 1995.

5 The stated pu{pose of the wells was to help determine the long-term effect of

6 dewatering at the McDonald Project.

7 On June 14, 1995, the State approved SPfV's proposal for

8 groundwater pumpin1. SeeExhibit 2 to the complaint.

9 Thereafter, on June 30, 1995, the permission allowing the pumping

10 of the wells was rescinded by the State. ,See Exhibit 3 attached to the semplaint.

11 According to a letter sent by the State, it was:

T2 under the erroneous impression that the well water was the s{lme quaUty as the alluvial liater and therefore the mixing zone rules 13 would not apply. However, after speaking ryth fgfr_negd ryQD, I was told this assumption was wrong. Thelefore, the HRB will T4 calculate mixine zoires for both the"Landers Fori< and Blacldoot sites,- and,lf apfropriate, reissue forrnal approval (*ittt a mixing 15 zone) at a later time. l6 ,See Exhibit 3 attached to the complaint.

T7 Thereafter, SPfV submitted a second plan for well testing that used l8 the concept of mixing zones. Jee E>Jribit 4 affached to the complaint.

L9 Thereafter, the State gave its oral approval to the new plan in late

20 July of 1995. A formal written approval was issued by the State on August 10,

2l 1995. ,See Exhibit 5 to the complaint. The approval was given as an amendment

22 to Exploration License No. 00497 that had already been issued to SPJV.

23 Attached to Exhibit 5 are two "Statements of Basis" prepared by Joe

24 Gurrieri, a hy&ologist for the State. One statement of basis dealt with the

25 ORDER - PAGE 3 Blacldoot River test wells and the other dealt with the Landers Fort test well.

STANIDARD OF REVIEW

3 Before reviewing the factual matter inparticular, itwould be helpfirl

4 to review the standard that this Court will use in granting a motion for smmary

5 judgnent As all are aware, this Court cannot grant a motion for summary

6 judgment if a genuine iszue of material fact exists. Rule 56, M.RCiv.P. Summary

1,...|, I f,"f 7 judgment €ncourages judicial economy tbrough the elimination of rmnecessary

I triaf delay, aod expeise. Wagna u Glasgmt Livqtoch SaIe Co., ?22lv1on| 385,

9 389,722 P.2d 1165, 1168 (1986); Cluhs Fork Naional Banh u Papp,2l5 Mont l0 494,496,698P.2d 851, 852-853 (1985I Bonawitzu Bourke,lT3 Mont 179,182,

ll 567 P.2d32,33 (1977).

12 Summaryjudgmeng however, will only be granted when the record

t3 discloses no genuine iszue of material fact and the moving party is entitled to

t4 judgment as a matter of law. Rule 56(c), ^fee M.RCiv.P.; Caeu Horgrave, 15 209 Mont.265,269,680P.2d952,954 (1984). The movant has the initial burden

L6 to show that there is a complete absence of any genuine issue of material fact To

t7 satisfy this brnden, the movant nrust make a clear showing as to what the tuth is

18 so as to exclude any real doubt as to the existence of any genuine issue of material l9 fact. Kober u Stantart,l48 Mont. Il7,4l7 P.2d476 (1966).

20 The opposing party must then come forward with substantial

2l evidence that raises a genuine issue of material fact in order to defeat the motion.

22 Denny Driscoll Boys Home u State, 227 Mont. 177, 179, 737 P.zd I 150, I 15 I

23 (1987). Such motions, however, are clearly not favored. "[T]he procedure is

24 never to be a substitute for trial if a factual contoversy exists." Reavq v.

25 ORDER. PAGE 4 1 Reinbold, 189 Mont. 284,288, 615 P.2d 896, 898 (1980). Hthere is any doubt as

2 to the propriety of a motion for summaryjudgment, it should be denied. Rogers v.

J Swingley,206 Mont. 306, 670 P.2d 1386 (1983); Cheyenne l|/estern Bank v.

4 Young, 179 Mont. 492, 587 P.2d 40I (1978); Kober at 122, 417 P.2d at 479.

5 ALLEGED VIOLATION OF THE MONTANA EhI-VIROI\MENTAL PROTECTION ACT, SECTION 75-1-101, ET SEQ., MCA 6

7 This count alleges that the State should have prepared an

I environmental impact statement or an environmental assessment before

9 reauthorizing the pump tests or allowing the creation of the mixing zones. See

10 Count 5 of the a:nended complaint.

11 The State contends that this issue is moot.

T2 This issue is resolved by the parties' stipulation dated June 18,

13 1996. According to that stipulation, Count 5 of PlaintifFs' arnended complaint and

T4 that portion of Count 6 of the plaintiffs' amended complaint that pertains to

15 alleged violations of the Montana Environmental Protection Act were dismissed

T6 without prejudice. Pursuant to this stipulation signed by the parties, the Court

I7 entered an order on dismissing the MEPA related claims. Therefore, the Court

18 will not address those claims in this order.

19 ALLEGBD VIOLATION OF THE MBTAL MII{E RECOVERY ACT

20 This topic relates to Count 4 of Plaintiffs' complaint, which alleges

2l that the State has violated Montana's Metal Mine Recovery Act SectionS2-4-301,

22 et seq., MCA. The specific concerns of Plaintiffs are, fust that the State erred in

23 authorizing the pump tests by amending the exploration license abeady issued by

24 the State pursuant to the Metal Mine Recovery Act. Second, Plaintiffs contend

25 ORDER. PAGE 5 I that the State erred and that there is no authority for the State to approve the water

2 tests ormixing zones rmderthe Metal Mine RecoveryAct.

3 As earlier note4 the pump tests here at issue were authorized by

4 amending an orploration license that SPIV already had from the State pursuant to

5 the Metal Mine Recovery Act That exploration license was numbered W497.

6 Plaintiffs contend that the pump tests are not e4ploration and thus cannot be

7 authorized rmder SPfV's exploration license. Exploration is defined under &e

8 Meal Mine Recover! Act as:

9 all activities that are conducted on or beneath the surface of lands and that result in material disturbance of the surface for the 10 pu{pose of detemining Qe presencg location, extenf deptb gade, and economic viability of dineralization in those lands, ffanv. other ll than mining forprodu-ction and economic exploiation;-

12 Section 82 4€ 03 ( 7)(a), MCA

L3 According to the Satg the pump tests are designed to determine the

t4 economic viability of the mineralization of the McDonald Project

15 The Coruthas before itthe affidavit of James Volberding whichwas

t6 filed with this Court on May 24, 1996. Mr. Volberding is senior project geologist

t7 for SPW. According to paragraph 2 of his affidavit, the pump tests are critical for

18 determining the economic viability of the mineralization of the project. The tests t9 are needed to deterrrine the costs associated with dewatering the ore body and the

2A costs of neating mine waters to meet water quality standards. According to

2l Mr. Volberding both of these factors are important elements in determining

22 whether or not the mine is economically feasible.

23 This Court would mle that the pump tests certainly are exploration as 24 defined under Section 82-4-303(7), MCA.

25 ORDER. PAGE 6 1 The next issue is whether or not the State could authorize a mixing

2 zone under the Metal Mine Recovery Act. According to Plaintiffs, mixing zones

J can only be authorized pursuant to Montana's Water Quality Act, Section 75-5-

4 101, et seq., MCA.

5 According to the Water Quality Act a mixing zone is defined as:

6 "an area established in a permit or final decision on nondegradation issued by the

7 deparffrent where water quality standards may be exceeded, subject to cond^itions

8 that are imposed by the department and that are consistent with the rules adopted

9 by the board." Section 75-5-103(14), MCA. (Hereinafter referred to as Section

10 103)

11 Also at issue is Section 75-5-40I(6), MCA which provides as

12 follows: 'Notwithstanding the provisions of 75-5-301(4), mixing zones for

13 activities excluded from pennit requirements under subsection (5) of this section

L4 must be established by the permitting agency for those activities in accordance

15 with 75-5-301(a)(a) through (4Xc)." (Hereinafter refened to as Section a01(6)).

16 The reader will note that Section a01(6) indicates that if certain activities are

t7 excluded from permit requirements pursuant to subsection (5), mi*ittg zones must

18 be established by the permitting agency.

19 Section 75-5-40L, MCA generally requires that certain activities are

20 required to obtain a groundwater permit. However, subsection (5) of Section

2l 75-5-401, MCA, excludes certain activities from the groundwater permit

22 requirements. Specifically at issue here is that porfion of Section 75-5-401(5),

23 MCA, that excludes "mining operations subject to operating permits or exploration

24 licenses in compliance with the Strip and Underground Mine and Reclamation Act,

25 ORDER - PAGE 7 I Title 82, Chapter 4,put2, orthe meal mine reclamation laws, Title 82, Chapterd

2 part Section 75-5401(5XD, MCA. In plain Enghsb this stafirtory scheme 3.' ^fae 3 seenrs to state that these water well tes$, since they are conducted pur$Ent to an

4 exploration license issued by tre Metal Mine Recovery Act, are not nrbject to the

5 grormdwata pernit reErirement However, Section 401(0 does require the

6 creation of a mixing zone for &ese activities. According to Plaintiffs, a mixiug

!,. 7 z)ne can'only be estrblished after nondegradation review under thc Water Quality

E Act or underu gro*i*., p€rmit issued by the Sate pusuant to the Water

9 Quality Act

10 Howerrer, the statutes say othernise. Section 401(6) specifically

11 authorizes "permitting agencies" to set up mixing zones for any activities excluded

t2 from groundwater permit requirements." As noted by the State, the Water Quality l3 Act constantly refers to the Deparfrent of Environmental Quality as the *Departuent' 14 However, in Section 4}l(6)instead of referringto thc Deparhenf

15 the legislature refers to "lhe permitting agenry.' This would certainly evidence a

t6 legislative intent that mixing zones can be authorized by agencies other tran fte

17 Departuent of Environmental Quality, and that they can be authorized under

l8 statutory schcmes other than the Water Qgality Act

t9 To make the SPIV obtain a groundwater permit would be in direct

20 contradiction to the legislature's intent in Section 75-5-401(5Xi), MCA.

2t It is not the firnction of this Court to opine as to the wisdom of the

22 aforementioned legislative scheme. Rather, this Corut's finction at this time is to

23 determine whether or not the State could create a mixing zone pursuant to the

24 Meal Mine Recovery Act. This Court concludes that Section 401(6) authorizes

25 ORDER. PAGE 8 1 the State to create a mixing zone pursuant to the Metal Mine Recovery Act.r

2 ALLEGED VIOLATION OF THE MONTANA ADMIMSTRATIVE PROCEDURE ACT, SECTION 2.+IOI, MCA J

4 These allegations concern Count 6 of the complaint. Plaintiffs

5 contend that the action of the State in this case in approving the mixing zones and

6 authorizing the well tests were arbihary, capricious, and unlawfrrl and therefore in

7 violation of the Montana Adminisfiative Procedure Act. The State contends that

8 the Montana Administative Procedure Act does not apply to the amendment of an

9 exploration perrnit and the designation of mixing zones. The State contends that

10 such activities are neither rule making nor the results of a contested case that

11 would give rise to judicial review under the Montana Administrative Procedure

t2 Act. This Court agrees with the State's contention. This is certainly not a rule

13 making proceeding and is not a contested case in the sense that those words are

L4 used in the Montana A,tininisffative Procedure Act. Even if this were a contested

15 case under the Administrative Procedure Ac! judicial review of the contested case

I6 decision must be requested within 30 days after the final agency decision. Section

17 2-4-702(2), MCA. The "final decision" if one there be, was filed on August 10,

18 1995. The complaint was filed on October 6, L995, well beyond the 30 day limit.

L9 However, it would appear that Plaintiffs are entitled to review ttre State's

20 administrative activities to see if the record establishes whether or not the agency

2T acted arbitrarily, capriciously, and unlawfirlly. See North Fork Preservation

22 Association v. Department of State Lands,238 Mont. 45I,459, 778P.2d862,

23 tThe Metal Mine Recovery Act is administered by the Deparnnent of 24 Environmental Quality.

25 ORDER. PAGE 9 I 867 (1939). In that case, the Montana Supreme Courtheld that a reviewing corut

2 is not to substitrte its judgment for that of the administrative agency by deciding if

3 the adminishative agency was correct. Instea4 the court is examine the agency

4 action to see if it is arbitrary or capriciors . Id. at65,77EP.2d at 871. The coufi

5 also noted &at the reviewing court's inquiry must be searching and careful but the

6 ultimate standard of review is a narrow one. Id

7 Plaintiffs complaintrat the State failed to create an environmenhl

8 assessment Plaind0is' concem is that there is no administrative record showing

9 that the State took a careful look at the environmental coillequences of its ap,proval

l0 of the mixing zones and pump tests here at question.

11 Further, Plaintifrs are concerned with the State's failure to explain its

L2 enforcement (or lack thereof) of Montana's Water Quality Act Specifically,

13 Plaintiffs feel that the State has erred in failing to justi$ its amendnent of SPW's t4 exploration license to allow massive pump tests or to explain its actions in creating

15 mixing zones and in not requiring a Montana pollution discharge elimination l5 system permit t7 The State and SPW zuggest that these issues can be addressed not

18 only in the existing administrative record but by affidavits and testimony presented l9 at trial. Specifically, the State refers to the hearing of October 18, 1995, on the

20 issue of mandamus. At pages 61-83 of the tanscript of that proceeding, Joe

2l Gunieri testified concerning matters he considered in evaluating the mixing zones

22 here in question The State also points to the affidavits of Mr. Grurieri and

23 Mr. Volberding that were filed at the October 18, 1995, hearing.

24 ill

25 ORDER. PAGE 10 I The dispute of the parties concerning this issue, then" revolves

2 around what record the Court is to review. Plaintiffs take the view that the only

J record the Court should be allowed to review is the administrative record that was

4 created by the State prior to the October 18, 1995, hearing. The State and SPfV,

5 on the other han4 take the position that the Court should be allowed to consider

6 matters presented to it at the October 18, 1995, hearing, along with the affidavir 7 of Mr. Gurrieri *d y. Volberding.

8 This Court has reviewed this issue as it has arisen in the federal

9 courts and would adopt the conclusion of the Ninth Circuit announced in the case

10 of Friends of the Earth v. Hintz" 800 F.2d 822 (9th Cir. 1986). In Hintz"the

11 Ninth Circuit noted that usually judicial review of agency action is limited to a

L2 review of the administative record. Id at 828. The court, however, went on to

13 note:

I4 But exceptions exist to the rule that review of agency action is limited t6 the administrative record. A court miy consider evidence 15 outside the administrative record as necessary to explain agency action. . . . When there is "such a failure to explain administrative l6 action as to frustrate effective judicial re\riew," the court may "obtain from an agency, either through affidavits or test'mony, such t7 additional"expianation of the"reasons for the public d-ei:isions as may prove necessaqy." Quoting Public Power Council v. fohnson,674 18 F .2d 791, 793-94 (9th Cir. 1982); quoting Camp v. Pitts,4l I U.S. 138, 143 (t973). 19 Id at829. 20 , ftrs, the Court concludes that it is appropriate to consider not only 2T the administrative record but also the testimony and affrdavits introduced at the

22 hearing.

23 It is important here to note that the rules for reviewing agency action

24 do not require that the agency come up with any particular result. Rather, they are

25 ORDER. PAGE 11 I designed to make sure that the agenry considers relevant factors and makes an

2 informed and nonartitrary decision. Based upon the administrative record

3 presented to the CourL along with the testimony of Mr. Gurrieri and his afrdavit

4 and the affidavit of Mr. Volberding the Court concludes that the State did not act

5 arbitrarily, capriciously, or unlaufirlly in approving the mixing zones or granting

6 permission to conduct the pump tests hereunder consideration.

7 Tm CoNSTTTUTIONALTTY OF SECTTON 7**sr7Q)6), MCA

8 Phind;fs contend that Section 75-5-3ll!)0), MCA is

9 unconstitutional. That section, enacted by the 1995 Legislature, provides as

10 follows:

11 (2) The followine cateqories or classes of activities are not subject tri the provisions-of ZSIS-303: 12

13 Cil Airrn rges of water from waterwell ornonitoring well tes8. hvdrostatic Dressure and leakaee tesB. or wastewater from the t4 disinfe6tion or flrishins of water maiis and storage reservoirs. conducted in accordaice with deparment-approied water quility l5 pt:trstion practices;

l6 Plaintiffs suggest that this categorical exemption of discharges of

t7 water from water well tests from Montana's Nondegradation Poliry, set forth in

l8 Section 75-5-303, MCA violates the Montana Constitution.

19 The specific provisions of the Constitution allege to have been

20 violated are Article II, Section 3 and Article D( Section l. Article II,

2l Section 3 provides:

22 All oenons are born free and have certain inalienable riehb. Thw inchbe the rieht to a clean and healthfirl environment anilthe 23 ggbts-.of pursg$-g iife's basic. necessities, enjoyitg and dqfending thetr lrves and lrberues. accurnng. Dossessmg and Drotecbns 24 property, and seeking theiriafeti, frealth anilhappiness in dlt Uwnrt

25 ORDER. PAGE T2 I ways. 4 gtj.oyrng these rights, all persons recognize corresponding responsibilities. 2 Article D( Section I provides: a J (l) The state and each person shall maintain and improve a 4 clean anci nearurru environmelnt in Montana for present and futrue generations. 5 (2) The legislature shall provide for the adminisfiation and 6 enforcement of tffis duty.

7 (3) The legislature shall provide adequate remedies for the protectibi-and of the-enviroffnentafffe support system from degradation 8 provide adequate remedies to prevbirt unieasonabte depfetion and ilegradation bf natural resources. 9

10 Plaintiffs' concem is that the categorical exclusion from Montana's

11 nondegradation review of discharges from water wells is done without any regard

12 to the actual impact of the water well tests. Plaintiffs admit that most water well

13 tests do not cause any significant impact on water quality or the enviionment.

t4 However, Plaintiffs' concern is that this categorical exclusion, mentioned above,

15 does not give the State the ability to properly deal with a water well discharge that

16 does in fact have an adverse impact on the environment.

17 The fust question the Court must address is whether or not the rigbt

18 to a clean and healthfirl environment set forth in Article II, Section 3 of the

19 Constitution is an inalienable, firndamental right. In Wadrworth u State,53 St. 20 Rep. 146, 150, _ Mont. _, _ P.2d _ (L996), the Montana Supreme Court 2I indicated that a right may be fundamental if it is found in the Constitution's

22 Declaration of Rights. In that case, the court held that the right to pursue life's

23 basic necessities, since it is in the Declaration of Rights, is a fundamental right.

24 This Court would conclude that since the risht to a clean and healthful

25 ORDER. PAGE 13 I environment is conained in &e srme sentence as the right formd to be fimdamental

2 n Wadsworth, the right to a clean and healthfirl environment must also be a

3 fimdamental right If nrch I right is declared to be inalienable, as it is in the

4 Montana Constitution, it is hard to see how it could not be considered

5 fimdamenal

6 The Sate suggests thatthe formders of the Constinrtion didnot

7 provide for a priratarigbt to sue to enforce the inalienable rights set for& in

8 Article tr, Section g of the Constitution. One night inErire, in disposing of this

9 argumenf as to how a right could be inalienable and fimdamental and yet a pcnnn

10 would be forbidda to go to court to enforce that right Certainly, an individual

1l has a right to come to court to seek to vindicate their inalienable and fimdamenbl t2 rights.

13 It should also be noted that the constitntional challenge herc must be *as 14 on an applied" basis. If this were a facial challengg it would prove most l5 dimcdg since under zuch a facial challenge, the proponent must show that rmder

16 no set of circumstances can the challenged regulation be valid. See II. & u

17 Salano,48l U.s. 739 (198?). Indee4 Plaintitrs have on several occasions l8 admitted that &e shtute here in question would usually operate in a constitutional t9 fashion. Thus, the Court must exanine whether in its operation, this stahrte is 20 constinrtional.

2l If the right to a clean and healthfirl environment is a firndamenal

22 right, which this Court concludes it is, then the question arises as to what standard

23 of review the Court must undertake in analyzing what the State has done.

24 Plaintiffs suggest that the activities of the State must be given strict scrutiny since

25 ORDER. PAGE 14 I they interfere with the exercise of a citizen's fundamental right to a clean and

) healthfirl environment. If strict scrutiny is required, then the State must show a

J ssmpelling state interest to justi$ the activities undertaken by the State. ,See

4 Wadsworth 53 St. Rep. at 152. T"he key question, then, is whether the State's

) activities complained of by Plaintitrs impermissibly interfere with the right of each

6 and every Montanan to a clean and healthfirl environment.

7 As noted by the supreme court if a plaintiffdoes not show that a

8 fi:ndamental right has been substantially abridge( then a court does not use strict

9 scrutiny in analyzing the alleged constitutional violation. See State v. Oberg,

10 207 Mont.277,28L,674P.2d494,496 (1983). The crucial analysis, then, must

11 come only after a carefirl review of the factual record before this Court on the

12 environmental impacts of the water well testing and the mixing zones of which

13 Plaintiffs complain.2 t4 One element that is quite crucial is that there is no proof in this case

15 that any of these discharges from mixing zones have exceeded water quality

16 standards. Those standards still apply. Further, Section 75-5-605, MCA t7 specifically prohibits anyone from causing pollution of the state waters. The

18 statutory scheme of which Plaintiffs complain does not excuse these prrmp tests

19 and mixing zones from the requirement that they not violate water quality

20 standards and not cause pollution. 2L /i 22 t The parties have spent a preat deal of time debatins whose idea it was to 23 enact Section^75-5-317(2X0, MCA. In this Court's view ofthings, it does not matter if the statute was enacted after lobbying efforts undertaken by the mining 24 industy or whether this was a proposal suggeited by the State itself

25 ORDER - PAGE T5 I Section 75-5-303, MCA sets forth the State's nondegradation

2 policy. Prior to the enactuent of the stahrte here in question, the Montana

3 Administrative Rules provided for exemptions from the nondegradationpoliryfor

4 cerain activities that were deemed to be nonsignificanl 16.20.7L2ARM. ^Sae 5 The tbnrst of Plaintiffs' constihrtional complaint is that the statute here in question

6 does away with the nondegradation review that otherwise would have taken place

7 under the administative rules.

8 Howevlr, the Courtmust concentrate onthe actual impactof

I Montana's water by the activities in question

l0 At page 12 of Plaintiffs' brief and throughout their argrrmenf ftey

ll refer to a certain exhibit that was introduced by &e Sate as Exhibit B at the 12 hearing on ostober 18, 1995. It was prepared by Joe Crurrieri and was his o r3 calculation of what the concentration of narious particles would be at the

t4 downstneam edge of the nixing zone for boft the Landcrs Fork and Blaclfoot

l5 Rivers. ,See Gurrieri testimony, pp. 78 and 80. Simply put, these calculations

l6 were IvIr. CflIri€ri's nEedigtiotr of what would occur, not the reality of what in fast

L7 occurred.

18 Plaintitrs argue thatrmdernondegradation standards, an analysis of

t9 these chemicals in the water would allow them to be called nonsignifican! and

20 thus exempt from nondegradation review, only if the concentation of pollutants

2l outside the mixing zone does not exceed 15 percent of the lowest applicable

22 standard. See 16.20.712(l)(c), ARM. Plaintiffs then point out that several of the

23 elements in the aforementioned chart exceed the 15 percent standard. 24 il/

25 ORDER. PAGE T6 1 However, as noted above, this chart, origrnally Exhibit B at the

2 hearing of October 18, 1995, and now reprinted on page 12 of Plaintiffs' brief, is

nothing but a prediction. The significant issue here is what concentation of these

4 elements are actually contained in the waters of the Blacldoot and Landers Fork

5 Rivers at the outside of the mixing zones.

6 Atpage 11 of Plaintiffs'briei lrey also referto waterreceiving

7 groundwater laced with arsenic as high as .155 milligrams per liter. Plaintiffs note

8 that this is 50 timet th. ,-o*t of arsenic contained in the receiving waters in the

9 Blacldoot alluvium. The receiving waters of the Blacldoot alluvium have a

10 arsenic level of .03 milligrirms per liter. Jee the affidavit of Karen Hegalstein,

1t October 18, 1995.

T2 However, it appears that this arsenic-laden water was never t3 discharged. See the affidavit of Mr. ysl!ffding of May 24, 1996. In that t4 affidavit, he indicates that this arsenic-laced water was from a well test of July 13,

15 1995. This was before SPIV began their pump test on July 26, 1995. Further,

16 Mr. Volberding indicates that this arsenic-laced water was not discharged to either

T7 the Blackfoot or the Landers Fork alluvium.

18 For the actual results of the mi*ing zone process, the Court has the

19 aforementioned affidavit of Mr. Volberding of May 24,1996. According to

20 Mr. Volberding's affidavit, long term monitoring from surface waters, monitoring t 2l wells, the mixing zones, and domestic wells shows ry significant change from 22 prewater well tests conditions. For example, at page 5 of his affidavit,

23 Mr. Volberding indicates that sampling locations SW-328 and SW-40B are

24 surface water sampling locations on the Blackfoot River upstream and downsteam

25 ORDER - PAGE 17 I from the Blackfoot infiltation gallery. Druing and after the water well tests of

2 water wells numbered 4 and 5, no significant change of any water quality

3 parameta of interestwas obseryedbetween the upstneai and fte downstream

4 stations. Locations Sttr-53l. and SW-44L are surface water sampling locations on

5 the Landers Fork River, upstream and downsteam fron the Landers Fork

6 infiltration gallery. During and after the water well test of well number 6, no

7 significsnl change of,,any water quality paraneters ffi of interest was obsenred 8 behveen upstream ani downstream locations. volberding affidavit, ^9ee 9 paragraph 6, p. 3.

l0 The balance of the Volberding affidavit contains references to oths

11 specific monitoring sites whichnotice no significant change fromprewaterwell

t2 test conditions. Attached to his affidavit are several pages of qpecific findings over

13 a period of time from a variety of sampling locations on both rivers.

t4 Plaintiffs presentthe affidavittestimony of Mr. Dan Frazier, former

15 head of the Water Qrulity Bureau. Mr. Frazis finds thatthe water well tesb are

l6 causing serious degradation to Montana waters.

LI Plaintiffs' position seeurs to be that the nondegradation review from

l8 which these water wells are now exempted pursuant to the statute here in question,

19 is the constitutional equivalent to a clean and healthful environment. Thus,

20 Plaintitrs argue that it must be that when an activity is exempted from

2l nondegradation review then the legislatrne has failed in its requirement to maintain

22 a clean and healthfirl environnent.

23 However, this Court has a real question as to whether or not using

24 the arlministrative review requirements of l6.2o.7l2,ARM, would produce a

25 ORDER. PAGE T8 1 different result. At page 12 of their brie{ Plaintiffs apply the nondegradation

2 review to the State's prediction of what concentration of various elements would

J be in the mixing zone waters as they entered the alluvium of the Blacldoot and

4 Landers Fork Rivers. However, no such analysis has been done on the actual

5 concentration of elements as they enter those waters. When coupled \ rith Mr.

6 Volberding's affidavit there is certainly a factual question that prevents &e

7 ganting sf 5 rmmaryjudgment on the constitutional issue.

8 At this stage of the proceeding, Plaintiffs have failed to prove that

9 the actions of the state in approving the water well testing program mentioned

10 above violates the Montana Constitution. The mere fact that discharges from

11 water wells are categorically exempted from nondegradation view does not

T2 automatically give rise to a finding that the statute is unconstihrtional. There must

t3 be a factual showing that the waters of the Blacldoot and Landers Fork Rivers are

L4 so threatened by the discharges here in question as to threaten public health or as

15 to violate applicable water quality standards or as to cause a significant impact on

t6 either river.

T7 The record seems to tell us that the mixing zones are working well

18 and that no significant impact is occurring to either river. It is also crucial to note

I9 that the State is constantly monitoring the discharges from these wells. Absent a 20 T*t of an actual injury, the Court carmot rule, on the facts now before it, that in 2l its operation, SectionT5-5-317(2)0), MCA" is unconstitutional. On the other han4

22 the Court has the affidavit of Mr. Frazier that states that the well tests are

23 significantly impacting the rivers. The Court has, then, a factual dispute that

24 precludes the issuance of summary judgment to either parfy.

25 ORDER - PAGE 19 I However, sumnaryjudgnert is granted to the State as requested on

2 Cormts 4, 5, ani 6.

3 DATED6is { dayofAugusg 1996. 4

5

6

7 w: Leo Berrrr 8 ' John Norrt Ron Waterman 9 Thomas M. France David IC Wilson 10 ll deq.or3

L2

13 t4

15 t6

17 l8 l9

20 2l

22

23

24

25 ORDER. PAGE 20 ORDER RECf;iVED

AUG 1 5 1996 Itr:; DfCI I.EGAI. UNIT i til' "-i; ."t.r 1

2

J

4

5

6 MONTANA FIRST JUDICIAL DISTRICT COURT 7 " TPWTS AND CLARK COLINTY 8

9 MONTANA E}WIRONMENTAL ) INFORMATION CENTER, CLARK 10 FORK.PEND OREILLE ) COALITION, WOMEN'S VOICE 11 FOR TTIE EARTH. ) Cause No. BDV-95-1184

12 Plaintiffs, ) ORDER

13 )

T4 DEPARTMENT OF ) ENVIRONMENTAL QUALITY, 15 ) Defendant, t6 ) -and- 17 ) SEVEN.UP PETE JOINT VENTURE, 18 ) Intervenor. 19

20 This maffer is again before the Court on Plaintiffs' request tbr a

2L preliminary injunction. Instead of reviewing the factual background of this case,

22 the Court merely refers the reader to this Court's orders entered earlier in this case

23 on October 27, L995 and August 5,1996.

24 At this stage, the specific factual milieu with which we find

25 ourselves concerned is the proposal by Seven-Up Pete Joint Venture (SPJ\) 1 to begin a series of new pump tests on the Landers Fork River. The pump tests

2 were authorized by the State of Montana (State) on or about August 7,1996.

J The Court held a hearing on this issue on August 13, L996, at which

4 time evidence was received. In addition, the Court has before it affidavits filed by

5 numerous persons.

6 The issue presently before the Court involves the amorurt of arsenic

7 that will be present in the water discharged from the proposed wells. The existing

8 level of arsenic in the'Landers Fork River is .0015 milligrams per liter. The State

9 has calculated what it considers to be the level of arsenic in the well water that

10 will be discharged into the infilu'ation gallery prior to entering the mixing zone.

11 That calculation predicts an arsenic level of .014 milligrams per liter. However,

L2 ttre State predicts that the level of arsenic at the end of the mixing zone would be

13 .006 milligrams per liter. Agarr, the numbers above are the State's predictions of t4 tle arsenic levels in the water to be pumped from the test wells. These figures

15 have proven to be conservative based on the actual results of the 1995 pump well

16 tests.

17 SPrV has done its own calculations of the arsenic it expects will be

18 in the discharged well water. SPW concludes that the average level of arsenic in

19 water to be discharged into the infiltration galleries is .009 milligrams per liter.

20 The level of arsenic in the city of Helena drinking water is .009

2l milligrams per liter. The standard for aquatic life is .190 milligrams per liter. The

22 human health standard for arsenic is .018 milligrams per liter.

23 Testiffing at the hearing was Geoffrey Beal, the hydrologist for

24 SPJV. Mr. Beal testified that the average discharge concentration of arsenic

25 ORDER - PAGE 2 1 mentioned above (.009 milligrams per liter) is from actual testing of the water

2 slalding in the well. Based upon the results of the 1995 pump tests, Mr. Beal

a J believes that these arsenic levels will drop as water is pumped. He also believes

4 that these levels will further drop as the water is released into the trench and

5 exposed to the environment.

6 Based upon the 1995 tests, Mr. Beal testified that there will be no

7 detectible change in the arnbient level of arsenic in the water 50 feet downsfieam

8 from the point of discharge. As noted above, the ambient arsenic concentration in

9 the water is .0015 mil'ligrams per liter.

10 By this Court's order of August 5,1996, this Court held:

11 "There must be a factual showing that the waters of the Blacldoot and Landers o L2 Fork Rivers are so threatened by the discharges here in question as to threaten 13 public health or as to violate applicable water quality standards or as to cause a

t4 signilicant impact on either river." ,See Order of August 5,1996, p. 19. Here,

15 Plaintiffs' acknowledge that there is no evidence of threat to public health and no

16 violation of water quality standards. However, Plaintitrs do contend that these

T7 discharges of arsenic will cause a significant impact to the Landers Fork River.

18 Plaintitrs rely on Section 16.20.712(1Xb), ARlvI. Accorciing to that

t9 rule, any activities that change surface or groundwater quality which meet all of

20 certain listed criteria are nonsignificant and are not required to undergo review

2I under Section 75-5-303, MCA. The specific criteria with which Plaintitrs are here

22 concerned is contained in 16.20.712(lxb), ARM. Pursuant to that rule, discharges

23 containing carcinogens are only considered nonsignificant if the concentration of

24 carcinogens in the discharge is less than that of the receiving water. According to

25 ORDER - PAGE 3 1 Plaintiffs, the evidence presently before the Court shows that the arsenic in the

2 water to be discharged from the proposed wells exceeds the nahral concenfiation

J of arsenic in the receiving waters of the Landers Fork. Thus, according to

4 Plaintiffs, these activities are significant and must undergo review pursuant to

5 Section 75-3-303, MCA.

6 However, the same problem that has dogged Plaintiffs tluoughsul

7 this case still exists. This old nemesis of Plaintiffs is Section 75-5-3L7(2)Q),

8 MCA which categorically excuses discharges of water well tests from review

9 under Section 75-5-303, MCA. Thus, in order for Plaintiffs to obtain relief, they

10 must request the Court to declare the aforementioned statute unconstitutional. In

11 this Court's Order of August 5,1996, this Court indicated that if the discharges

T2 were shown to cause sigrrificant impact on the Landers Fork River, the Court

13 would consider declaring the statute unconstitutional as applied to these test wells.

I4 Plaintiffs contend that the discharges here cause a significant impact on the river.

15 However, the best evidence that the Court has, which has been confirrned in 1995

I6 pump tests, is that the arsenic levels in the Landers Fork River will return to

L7 ambient standards within 50 feet from the discharge point of the well water.

18 Under the evidence presently before it, this Court cannot conclude that such a state

19 of facts constitutes a "significant impact'' on the Landers Fork River.

20 The parties will be monitoring the arsenic levels in the river.

2T Therefore, the Court will certainly stand ready to reexamine its opinion should the

22 arsenic levels in the Landers Fork River prove to be other than as suggested by

23 Mr. Beal. Thus, since the CouG at this stage of the proceedings, cannot declare

24 ///

25 ORDER. PAGE 4 I Section 75-5-317(2)C), MC.\ unconstitutional, Plaintiffs are not entitled to the

2 relief that they currently seek.

J In addition, a preliminary injunction is to be granted at the following 4 times only:

5 An injunction order may be granted in the following cases:

6 (1) when it appears that the applicant is entitled to the relief demanded and the relief or anv part rif ttre relief consists in 7 1s5fi'aining the commission or continuance of the act complained of, either for a limited period or perpetually; 8 (2) when it appears that the commission or continuance of 9 some act during tiiigation produce great lFe - would a or irreparable i"jury to the ap licant; 10 (3) when it appears during the litigation that the adverse 11 -sutr6rineparty is'doing or thr6a:tens or is a6out to do or is procuring or to 5e done some act in violation of the ipplicant"b riehts. t2 respecting the__subject of the action, and tending td iender the- judgment-ineffectial; l3 Section 27 -19 -20I, MCA. t4 The Court concludes that under the plain terrns of this statute, 15 Plaintiffs are not entitled to the relief they request at this time. In the first t6 instance, it does not appear, at this stage of the proceeding, that Plaintiffs are T7 entitled to the relief demanded. The relief demanded is a declaration of 18 unconstitutionality of Section 75-5-317Q)A), MCA. Agattr, at this stage of the 19 proceeding, the Court has not found a significant impact on the Landers Fork 20 River that would give rise to a conclusion that Section 75-5-317(2)Q), MCA is 2l allowing an unconstitutional degradation of Montana's environment pursuant to 22 these well tests. 23 /// 24

25 ORDER. PAGE 5 I Next, it does not appear that these tests will cause a great or

2 irreparable injury, since the evidence presently before the Cout is that ambient

a J arsenic standards will be restored to the Landers Fork River within 50 feet of the

4 point of discharge.

5 Finatly, the Court does not feel that it is appropriate to issue a

6 preliminary injunction under subsection (3) of Section 27-19-20L, MCA because,

7 at this time, these tests do not appear to cause a significant impact on the river.

8 The Court would indicate to all parties that it encourages constant

9 monitoring of the water well discharges. Plaintiffs are certainly free to approach

10 the Court for furttrer relief if it should appear that there is a factual basis to believe

11 that the water wells threaten public healtlr" violate applicable water quality

L2 standards, or are causing signifisanl impacts on the Blacldoot or Landers Fork

13 Rivers. l4 Based on the above, IT IS IIEREBY ORDERED, ADruDGED,

15 AND DECREED that Plaintiffs request for preliminary injunction is DENIED. lt, 16 DATED thrs | '( day of August 1996.

T7

18

19 pc: Leo Berry John North 20 Ron Waterrnan ' Thomas M. France 2l David K. Wilson

22 deq.or5

23

24

25 ORDER - PAGE 6 ORDER AND DECISION Page 1

MONTANA ENVIRONMENTAL INFORMATION CENTER, CLARK FORK-PEND OREILLE COALITION, WOMEN'S VOICE FOR THE EARTH, Plaintiffs,-v-DEPARTMENTOFENVIRONMENTAL QUALITY, Defendant, - and - SEVEN-UP PETE JOINT VENTURE, Intervenor.

Cause No. BDV-95-1184

FIRST JUDICIAL DISTRICT COURT OF MONTANA, LEWIS AND CLARK COUNTY

1996 Mont. Dist. LEXIS 738

August 2, 1996, Decided

JUDGES: [*1] Honorable Judge Sherlock, DISTRICT injunction (November 8, 1995), the Court was advised COURT JUDGE. that the pump tests had ceased.

OPINION BY: Sherlock Thereafter, the State moved to dismiss portions of the complaint, which motion was denied by this Court on OPINION March 18, 1996.

ORDER Plaintiffs' current request is for two forms of relief. The first is a preliminary injunction seeking to suspend This matter is presently before the Court on the exploration license [*2] issued by the State to SPJV. cross-motions for summary judgment filed by Plaintiffs Plaintiffs contend that the State has not complied with the and by Defendant (the State). Both parties are seeking law in issuance of the exploration license. summary judgment on Counts 4, 5, 6, and part of Count 7 of the complaint filed in this matter. Further, Plaintiffs seek summary judgment declaring that recently enacted portions of the Water Quality Act FACTUAL BACKGROUND are unconstitutional. Plaintiffs also seek a declaration that the State has violated the Metal Mine Reclamation Act, On October 4, 1995, Plaintiffs filed their complaint. Montana's Environmental Policy Act, and Montana's In the complaint, Plaintiffs sought a writ of mandamus Administrative Procedure Act. over the State's approving a series of pump tests to be conducted by the Seven-Up Pete Joint Venture (SPJV). SPJV consists of the firms of Phelps Dodge The pump tests were to be conducted near a proposed Corporation and Canyon Resources. They propose to cyanide heap leach mine proposed to be operated by mine an area near Lincoln, Montana, which has been SPJV near Lincoln, Montana. called the McDonald Project. The mine is seven miles east of Lincoln and is near the confluence of the The writ of mandamus was denied by the Court. Blackfoot and Landers Fork Rivers. Thereafter, Plaintiffs sought a preliminary injunction. However, on the day of the hearing on the preliminary On June 2, 1995, SPJV submitted plans to the State Page 2 1996 Mont. Dist. LEXIS 738, *2

to do certain aquifer tests to the area near the McDonald all are aware, this Court cannot grant a motion for Project. See Exhibit 1 to the complaint. Three water wells summary judgment if a genuine issue of material fact were to operate from July through October of 1995. The exists. Rule 56, M.R.Civ.P. Summary judgment stated purpose of the wells was to help determine the encourages judicial economy through the elimination of long-term effect of dewatering at the McDonald Project. unnecessary trial, delay, and expense. Wagner v. Glasgow Livestock Sale Co., 222 Mont. 385, 389, 722 On June 14, 1995, the State approved SPJV's P.2d 1165, 1168 (1986); Clarks Fork National Bank v. proposal for groundwater pumping. See Exhibit 2 to the Papp, 215 Mont. 494, 496, 698 P.2d 851, 852-853 complaint. (1985); Bonawitz v. Bourke, 173 Mont. 179, 182, 567 P.2d 32, 33 (1977). Thereafter, on June 30, 1995, the [*3] permission allowing the pumping of the wells was rescinded by the Summary judgment, however, will only be granted State. See Exhibit 3 attached to the complaint. According when the record discloses no genuine issue of material to a letter sent by the State, it was: fact and the moving party is entitled to judgment as a matter of law. See Rule 56(c), M.R.Civ.P.; Cate v. under the erroneous impression that the Hargrave, 209 Mont. 265, 269, 680 P.2d 952, 954 well water was the same quality as the (1984). The movant has the initial burden to show that alluvial water and therefore the mixing there is a complete absence of any genuine issue of zone rules would not apply. However, material fact. To satisfy this [*5] burden, the movant after speaking with Tom Reed WQD, I must make a clear showing as to what the truth is so as to was told this assumption was wrong. exclude any real doubt as to the existence of any genuine Therefore, the HRB will calculate mixing issue of material fact. Kober v. Stewart, 148 Mont. 117, zones for both the Landers Fork and 417 P.2d 476 (1966). Blackfoot sites, and, if appropriate, reissue formal approval (with a mixing zone) at a The opposing party must then come forward with later time. substantial evidence that raises a genuine issue of material fact in order to defeat the motion. Denny See Exhibit 3 attached to the complaint. Driscoll Boys Home v. State, 227 Mont. 177, 179, 737 P.2d 1150, 1151 (1987). Such motions, however, are Thereafter, SPJV submitted a second plan for well clearly not favored. "[T]he procedure is never to be a testing that used the concept of mixing zones. See Exhibit substitute for trial if a factual controversy exists." Reaves 4 attached to the complaint. v. Reinbold, 189 Mont. 284, 288, 615 P.2d 896, 898 (1980). If there is any doubt as to the propriety of a Thereafter, the State gave its oral approval to the motion for summary judgment, it should be denied. new plan in late July of 1995. A formal written approval Rogers v. Swingley, 206 Mont. 306, 670 P.2d 1386 was issued by the State on August 10, 1995. See Exhibit (1983); Cheyenne Western Bank v. Young, 179 Mont. 5 to the complaint. The approval was given as an 492, 587 P.2d 401 (1978); Kober at 122, 417 P.2d at amendment to Exploration License No. 00497 that had 479. already been issued to SPJV. ALLEGED VIOLATION OF THE MONTANA Attached to Exhibit 5 are two "Statements of Basis" ENVIRONMENTAL PROTECTION ACT, SECTION prepared by Joe Gurrieri, a hydrologist for the State. One 75-1-101, ET SEQ., MCA statement of basis dealt with [*4] the Blackfoot River test wells and the other dealt with the Landers Fork test This count alleges that the State should have well. prepared an environmental impact statement or an environmental assessment before [*6] reauthorizing the STANDARD OF REVIEW pump tests or allowing the creation of the mixing zones. Before reviewing the factual matter in particular, it See Count 5 of the amended complaint. would be helpful to review the standard that this Court The State contends that this issue is moot. will use in granting a motion for summary judgment. As Page 3 1996 Mont. Dist. LEXIS 738, *6

This issue is resolved by the parties' stipulation dated 1996. Mr. Volberding is senior project geologist for June 18, 1996. According to that stipulation, Count 5 of SPJV. According to paragraph 2 of his affidavit, [*8] Plaintiffs' amended complaint and that portion of Count 6 the pump tests are critical for determining the economic of the plaintiffs' amended complaint that pertains to viability of the mineralization of the project. The tests are alleged violations of the Montana Environmental needed to determine the costs associated with dewatering Protection Act were dismissed without prejudice. the ore body and the costs of treating mine waters to meet Pursuant to this stipulation signed by the parties, the water quality standards. According to Mr. Volberding, Court entered an order on dismissing the MEPA related both of these factors are important elements in claims. Therefore, the Court will not address those claims determining whether or not the mine is economically in this order. feasible.

ALLEGED VIOLATION OF THE METAL MINE This Court would rule that the pump tests certainly RECOVERY ACT are exploration as defined under Section 82-4-303 (7), MCA. This topic relates to Count 4 of Plaintiffs' complaint, which alleges that the State has violated Montana's Metal The next issue is whether or not the State could Mine Recovery Act, Section 82-4-301, et seq., MCA.The authorize a mixing zone under the Metal Mine Recovery specific concerns of Plaintiffs are, first, that the State Act. According to Plaintiffs, mixing zones can only be erred in authorizing the pump tests by amending the authorized pursuant to Montana's Water Quality Act, exploration license already issued by the State pursuant to Section 75-5-101, et seq., MCA. the Metal Mine Recovery Act. Second, Plaintiffs contend that the State erred and that there is no authority for the According to the Water Quality Act, a mixing zone State to approve the water [*7] tests or mixing zones is defined as: under the Metal Mine Recovery Act. "an area established in a permit or final As earlier noted, the pump tests here at issue were decision on nondegradation issued by the authorized by amending an exploration license that SPJV department where water quality standards already had from the State pursuant to the Metal Mine may be exceeded, subject to conditions Recovery Act. That exploration license was numbered that are imposed by the department and 00497. Plaintiffs contend that the pump tests are not that are consistent with the rules adopted exploration and thus cannot be authorized under SPJV's by the board." Section 75-5-103 (14), exploration license. Exploration is defined under the MCA. (Hereinafter referred to as [*9] Metal Mine Recovery Act as: Section 103)

all activities that are conducted on or beneath the surface of lands and that result Also at issue is Section 75-5-401 (6), MCA,which in material disturbance of the surface for provides as follows: "Notwithstanding the provisions of the purpose of determining the presence, 75-5-301 (4), mixing zones for activities excluded from location, extent, depth, grade, and permit requirements under subsection (5) of this section economic viability of mineralization in must be established by the permitting agency for those those lands, if any, other than mining for activities in accordance with 75-5-301 (4)(a) through production and economic exploitation; (4)(c)." (Hereinafter referred to as Section 401(6)). The reader will note that Section 401(6) indicates that if Section 82-4-303 (7)(a), MCA. certain activities are excluded from permit requirements pursuant to subsection (5), mixing zones must be According to the State, the pump tests are designed established by the permitting agency. to determine the economic viability of the mineralization of the McDonald Project. Section 75-5-401, MCA, generally requires that certain activities are required to obtain a groundwater The Court has before it the affidavit of James permit. However, subsection (5) of Section 75-5-401, Volberding, which was filed with this Court on May 24, MCA, excludes certain activities from the groundwater Page 4 1996 Mont. Dist. LEXIS 738, *9

permit requirements. Specifically at issue here is that 2-4-101, MCA portion of Section 75-5-401(5), MCA, that excludes "mining operations subject to operating permits or These allegations concern Count 6 of the complaint. exploration licenses in compliance with the Strip and Plaintiffs contend that the action of the State in this case Underground Mine and Reclamation Act, Title 82, in approving the [*12] mixing zones and authorizing the Chapter 4, part [*10] 2, or the metal mine reclamation well tests were arbitrary, capricious, and unlawful and laws, Title 82, Chapter 4, part 3." See Section 75-5-401 therefore in violation of the Montana Administrative (5)(j), MCA. In plain English, this statutory scheme Procedure Act. The State contends that the Montana seems to state that these water well tests, since they are Administrative Procedure Act does not apply to the conducted pursuant to an exploration license issued by amendment of an exploration permit and the designation the Metal Mine Recovery Act, are not subject to the of mixing zones. The State contends that such activities groundwater permit requirement. However, Section are neither rule making nor the results of a contested case 401(6) does require the creation of a mixing zone for that would give rise to judicial review under the Montana these activities. According to Plaintiffs, a mixing zone Administrative Procedure Act. This Court agrees with the can only be established after nondegradation review State's contention. This is certainly not a rule making under the Water Quality Act or under a groundwater proceeding and is not a contested case in the sense that permit issued by the State pursuant to the Water Quality those words are used in the Montana Administrative Act. Procedure Act. Even if this were a contested case under the Administrative Procedure Act, judicial review of the However, the statutes say otherwise. Section 401(6) contested case decision must be requested within 30 days specifically authorizes "permitting agencies" to set up after the final agency decision. Section 2-4-702 (2), MCA. mixing zones for any activities excluded from The "final decision" if one there be, was filed on August groundwater permit requirements." As noted by the State, 10, 1995. The complaint was filed on October 6, 1995, the Water Quality Act constantly refers to the Department well beyond the 30 day limit. However, it would appear of Environmental Quality as the "Department." However, that Plaintiffs are entitled to review the State's in Section 401(6) instead of referring to the Department, administrative activities to see [*13] if the record the legislature refers to "the permitting agency." This establishes whether or not the agency acted arbitrarily, would certainly evidence a legislative intent that mixing capriciously, and unlawfully. See North Fork zones can be authorized by agencies other [*11] than the Preservation Association v. Department of State Lands, Department of Environmental Quality, and that they can 238 Mont. 451, 459, 778 P.2d 862, 867 (1989).Inthat be authorized under statutory schemes other than the case, the Montana Supreme Court held that a reviewing Water Quality Act. court is not to substitute its judgment for that of the administrative agency by deciding if the administrative To make the SPJV obtain a groundwater permit agency was correct. Instead, the court is examine the would be in direct contradiction to the legislature's intent agency action to see if it is arbitrary or capricious. Id. at in Section 75-5-401 (5)(j), MCA. 465, 778 P.2d at 871. The court also noted that the reviewing court's inquiry must be searching and careful It is not the function of this Court to opine as to the but the ultimate standard of review is a narrow one. Id. wisdom of the aforementioned legislative scheme. Rather, this Court's function at this time is to determine Plaintiffs complain that the State failed to create an whether or not the State could create a mixing zone environmental assessment. Plaintiffs' concern is that there pursuant to the Metal Mine Recovery Act. This Court is no administrative record showing that the State took a concludes that Section 401(6) authorizes the State to careful look at the environmental consequences of its create a mixing zone pursuant to the Metal Mine approval of the mixing zones and pump tests here at Recovery Act. 1 question.

1 The Metal Mine Recovery Act is administered Further, Plaintiffs are concerned with the State's by the Department of Environmental Quality. failure to explain its enforcement (or lack thereof) of Montana's Water Quality Act. Specifically, Plaintiffs feel ALLEGED VIOLATION OF THE MONTANA that the State has erred in failing to justify [*14] its ADMINISTRATIVE PROCEDURE ACT, SECTION Page 5 1996 Mont. Dist. LEXIS 738, *14

amendment of SPJV's exploration license to allow 411 U.S. 138, 143 (1973). massive pump tests or to explain its actions in creating mixing zones and in not requiring a Montana pollution Id. at 829. discharge elimination system permit. Thus, the Court concludes that it is appropriate to The State and SPJV suggest that these issues can be consider [*16] not only the administrative record but addressed not only in the existing administrative record also the testimony and affidavits introduced at the but by affidavits and testimony presented at trial. hearing. Specifically, the State refers to the hearing of October 18, 1995, on the issue of mandamus. At pages 61-83 of the It is important here to note that the rules for transcript of that proceeding, Joe Gurrieri testified reviewing agency action do not require that the agency concerning matters he considered in evaluating the come up with any particular result. Rather, they are mixing zones here in question. The State also points to designed to make sure that the agency considers relevant the affidavits of Mr. Gurrieri and Mr. Volberding that factors and makes an informed and nonarbitrary decision. were filed at the October 18, 1995, hearing. Based upon the administrative record presented to the Court, along with the testimony of Mr. Gurrieri and his The dispute of the parties concerning this issue, then, affidavit and the affidavit of Mr. Volberding, the Court revolves around what record the Court is to review. concludes that the State did not act arbitrarily, Plaintiffs take the view that the only record the Court capriciously, or unlawfully in approving the mixing zones should be allowed to review is the administrative record or granting permission to conduct the pump tests that was created by the State prior to the October 18, hereunder consideration. 1995, hearing. The State and SPJV, on the other hand, take the position that the Court should be allowed to THE CONSTITUTIONALITY OF SECTION consider matters presented to it at the October 18, 1995, 75-5-317 (2)(j), MCA hearing, along with [*15] the affidavits of Mr. Gurrieri and Mr. Volberding. Plaintiffs contend that Section 75-5-317 (2)(j), MCA, is unconstitutional. That section, enacted by the 1995 This Court has reviewed this issue as it has arisen in Legislature, provides as follows: the federal courts and would adopt the conclusion of the Ninth Circuit announced in the case of Friends of the (2) The following categories or classes Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986).InHintz, of activities are not subject to the the Ninth Circuit noted that usually judicial review of provisions of 75-5-303: agency action is limited to a review of the administrative record. Id. at 828. The court, however, went on to note: .... (j) discharges of water from water But exceptions exist to the rule that well or monitoring well tests, hydrostatic review of agency action is limited to the pressure and leakage tests, [*17] or administrative record. A court may wastewater from the disinfection or consider evidence outside the flushing of water mains and storage administrative record as necessary to reservoirs, conducted in accordance with explainagencyaction....Whenthereis department-approved water quality "such a failure to explain administrative protection practices; action as to frustrate effective judicial review," the court may "obtain from an agency, either through affidavits or Plaintiffs suggest that this categorical exemption of testimony, such additional explanation of discharges of water from water well tests from Montana's the reasons for the public decisions as may Nondegradation Policy, set forth in Section 75-5-303, prove necessary." Quoting Public Power MCA, violates the Montana Constitution. Council v. Johnson, 674 F.2d 791, 793-94 (9th Cir. 1982); quoting Camp v. Pitts, The specific provisions of the Constitution allege to Page 6 1996 Mont. Dist. LEXIS 738, *17

have been violated are Article II, Section 3 and Article Declaration of Rights. In that case, the court held that the IX, Section 1. Article II, Section 3 provides: right to pursue life's basic necessities, since it is in the Declaration of Rights, is a fundamental right. This Court All persons are born free and have would conclude that since the right to a clean and certain inalienable rights. They include the healthful environment is contained in the same sentence right to a clean and healthful environment as the right found to be fundamental in Wadsworth, the and the rights of pursuing life's basic right to a clean and healthful environment must also be a necessities, enjoying and defending their fundamental right. If such a right is declared to be lives and liberties, acquiring, possessing inalienable, as it is in the Montana Constitution, it is hard and protecting property, and seeking their to see how it could not be considered fundamental. safety, health and happiness in all lawful ways. In enjoying these rights, all persons The State suggests that the founders of the recognize corresponding responsibilities. Constitution did not provide for a private right to sue to enforce the inalienable rights set forth in Article II, Article IX, Section 1 provides: Section 3 of the Constitution. One might inquire, in (1) The state and each person shall disposing of this argument, as to how a right could be maintain and improve a clean and inalienable and fundamental and yet a person would be healthful environment in Montana for forbidden to go to court to enforce that right. Certainly, present and future generations. an individual has a right to come to court to seek to vindicate their inalienable and fundamental rights. (2) The legislature [*18] shall provide for the administration and It should also be noted that the constitutional enforcement of this duty. challenge here must be on an "as applied" basis. If this were [*20] a facial challenge, it would prove most (3) The legislature shall provide difficult, since under such a facial challenge, the adequate remedies for the protection of the proponent must show that under no set of circumstances environmental life support system from can the challenged regulation be valid. See U. S. v. degradation and provide adequate Salerno, 481 U.S. 739 (1987). Indeed, Plaintiffs have on remedies to prevent unreasonable several occasions admitted that the statute here in depletion and degradation of natural question would usually operate in a constitutional resources. fashion. Thus, the Court must examine whether in its operation, this statute is constitutional.

Plaintiffs' concern is that the categorical exclusion If the right to a clean and healthful environment is a from Montana's nondegradation review of discharges fundamental right, which this Court concludes it is, then from water wells is done without any regard to the actual the question arises as to what standard of review the impact of the water well tests. Plaintiffs admit that most Court must undertake in analyzing what the State has water well tests do not cause any significant impact on done. Plaintiffs suggest that the activities of the State water quality or the environment. However, Plaintiffs' must be given strict scrutiny since they interfere with the concern is that this categorical exclusion, mentioned exercise of a citizen's fundamental right to a clean and above, does not give the State the ability to properly deal healthful environment. If strict scrutiny is required, then with a water well discharge that does in fact have an the State must show a compelling state interest to justify adverse impact on the environment. the activities undertaken by the State. See Wadsworth 53 St. Rep. at 152. The key question, then, is whether the The first question the Court must address is whether State's activities complained of by Plaintiffs or not the right to a clean and healthful environment set impermissibly interfere with the right of [*21] each and forth in Article II, Section 3 of the Constitution is an every Montanan to a clean and healthful environment. inalienable, fundamental right. In Wadsworth v. State, 53 St. Rep. 146, 150, ___ Mont. ___, ___ P.2d ___ (1996), As noted by the supreme court, if a plaintiff does not the Montana Supreme Court indicated that a right may be show that a fundamental right has been substantially fundamental [*19] if it is found in the Constitution's abridged, then a court does not use strict scrutiny in Page 7 1996 Mont. Dist. LEXIS 738, *21

analyzing the alleged constitutional violation. See State v. Plaintiffs argue that under nondegradation standards, Oberg, 207 Mont. 277, 281, 674 P.2d 494, 496 (1983). an analysis of these chemicals in the water would allow The crucial analysis, then, must come only after a careful them to be called nonsignificant, and thus exempt from review of the factual record before this Court on the nondegradation review, only if the concentration of environmental impacts of the water well testing and the pollutants outside the mixing zone does not exceed 15 mixing zones of which Plaintiffs complain. 2 percent of the lowest applicable standard. See 16.20.712 (1)(c), ARM. Plaintiffs then point out that several of the 2 The parties have spent a great deal of time elements in the aforementioned chart exceed the 15 debating whose idea it was to enact Section percent standard. 75-5-317 (2)(j), MCA. In this Court's view of things, it does not matter if the statute was enacted However, as noted above, this chart, originally after lobbying efforts undertaken by the mining Exhibit B at the hearing of October 18, 1995, and now industry or whether this was a proposal suggested reprinted on page 12 of Plaintiffs' brief, is nothing but a by the State itself. prediction. The significant issue here is what concentration of these elements are actually contained in One element that is quite crucial is that there is no the waters of the Blackfoot and Landers Fork Rivers at proof in this case that any of these discharges from the outside of the mixing zones. mixing zones [*22] have exceeded water quality standards. Those standards still apply. Further, Section At page 11 of Plaintiffs' [*24] brief, they also refer 75-5-605, MCA, specifically prohibits anyone from to water receiving groundwater laced with arsenic as high causing pollution of the state waters. The statutory as .155 milligrams per liter. Plaintiffs note that this is 50 scheme of which Plaintiffs complain does not excuse times the amount of arsenic contained in the receiving these pump tests and mixing zones from the requirement waters in the Blackfoot alluvium. The receiving waters of that they not violate water quality standards and not cause the Blackfoot alluvium have a arsenic level of .03 pollution. milligrams per liter. See the affidavit of Karen Hegalstein, October 18, 1995. Section 75-5-303, MCA, sets forth the State's nondegradation policy. Prior to the enactment of the However, it appears that this arsenic-laden water was statute here in question, the Montana Administrative never discharged. See the affidavit of Mr. Volberding of Rules provided for exemptions from the nondegradation May 24, 1996. In that affidavit, he indicates that this policy for certain activities that were deemed to be arsenic-laced water was from a well test of July 13, 1995. nonsignificant. See 16.20.712 ARM. The thrust of This was before SPJV began their pump test on July 26, Plaintiffs' constitutional complaint is that the statute here 1995. Further, Mr. Volberding indicates that this in question does away with the nondegradation review arsenic-laced water was not discharged to either the that otherwise would have taken place under the Blackfoot or the Landers Fork alluvium. administrative rules. For the actual results of the mixing zone process, the However, the Court must concentrate on the actual Court has the aforementioned affidavit of Mr. Volberding impact of Montana's water by the activities in question. of May 24, 1996. According to Mr. Volberding's affidavit, long term monitoring from surface waters, At page 12 of Plaintiffs' brief and throughout their monitoring wells, the mixing zones, and domestic wells argument, they refer to a certain exhibit that was shows no significant change from prewater well tests introduced by the State as Exhibit B at the hearing on conditions. For example, at page 5 of his affidavit, Mr. October 18, 1995. It [*23] was prepared by Joe Gurrieri Volberding [*25] indicates that sampling locations and was his calculation of what the concentration of SW-32B and SW-40B are surface water sampling various particles would be at the downstream edge of the locations on the Blackfoot River upstream and mixing zone for both the Landers Fork and Blackfoot downstream from the Blackfoot infiltration gallery. Rivers. See Gurrieri testimony, pp. 78 and 80. Simply During and after the water well tests of water wells put, these calculations were Mr. Gurrieri's prediction of numbered 4 and 5, no significant change of any water what would occur, not the reality of what in fact quality parameter of interest was observed between the occurred. upstream and the downstream stations. Locations Page 8 1996 Mont. Dist. LEXIS 738, *25

SW-53L and SW-44L are surface water sampling waters. When coupled with Mr. Volberding's affidavit, locations on the Landers Fork River, upstream and there is certainly a factual question that prevents the downstream from the Landers Fork infiltration gallery. granting of summary judgment on the constitutional During and after the water well test of well number 6, no issue. significant change of any water quality parameters of interest was observed between upstream and downstream At this stage of the proceeding, Plaintiffs [*27] have locations. See Volberding affidavit, paragraph 6, p. 3. failed to prove that the actions of the state in approving the water well testing program mentioned above violates The balance of the Volberding affidavit contains the Montana Constitution. The mere fact that discharges references to other specific monitoring sites which notice from water wells are categorically exempted from no significant change from prewater well test conditions. nondegradation view does not automatically give rise to a Attached to his affidavit are several pages of specific finding that the statute is unconstitutional. There must be findings over a period of time from a variety of sampling a factual showing that the waters of the Blackfoot and locations on both rivers. Landers Fork Rivers are so threatened by the discharges here in question as to threaten public health or as to Plaintiffs present the affidavit testimony of Mr. Dan violate applicable water quality standards or as to cause a Frazier, former head of the Water Quality Bureau. Mr. significant impact on either river. Frazier finds that the water [*26] well tests are causing serious degradation to Montana waters. The record seems to tell us that the mixing zones are working well and that no significant impact is occurring Plaintiffs' position seems to be that the to either river. It is also crucial to note that the State is nondegradation review from which these water wells are constantly monitoring the discharges from these wells. now exempted pursuant to the statute here in question, is Absent a finding of an actual injury, the Court cannot the constitutional equivalent to a clean and healthful rule, on the facts now before it, that in its operation, environment. Thus, Plaintiffs argue that it must be that Section 75-5-317 (2)(j), MCA, is unconstitutional. On the when an activity is exempted from nondegradation other hand, the Court has the affidavit of Mr. Frazier that review then the legislature has failed in its requirement to states that the well tests are significantly impacting the maintain a clean and healthful environment. rivers. The Court has, then, a factual dispute that [*28] precludes the issuance of summary judgment to either However, this Court has a real question as to whether party. or not using the administrative review requirements of 16.20.712, ARM, would produce a different result. At However, summary judgment is granted to the State page 12 of their brief, Plaintiffs apply the nondegradation as requested on Counts 4, 5, and 6. review to the State's prediction of what concentration of various elements would be in the mixing zone waters as DATED this 2nd day of August, 1996. they entered the alluvium of the Blackfoot and Landers Fork Rivers. However, no such analysis has been done on DISTRICT COURT JUDGE the actual concentration of elements as they enter those ORDER GRANTING EXTENSION i

rr rH cv. l.lll ;.';r;,],,., r, ' cLE:1 {-ti' 1 RECEIVED q'l Pl' '36 2 [rc Zi 4 JAN 0 2 1997 i- 'r't-19 J .. .- .- l '* " DEG LEGAL UNIT Flt-it'tlV l-; ",' "''"-- + t?/tu( /z/VZ@ ----=fr--|"--lLt " 5

6 UONTANA FIRST JUDICIAL DISTRICT COURT

7 LEWIS AND CI,ARK COUNTY

8

9 I{ONTANA ENVIRON}IENTAI-, INFORMAL CENTER, CLARK 10 FORK-PEND OREILLE COALITION, No. BDV 95-1184 WOI{EN'S VOICE FOR THE EARTH, 11 Plaintiffs, 1,2 v. ORDER GRAIflTING EXTSNSTON 13 DEPARTMENT OF ENVIRONUENTAL 14 QUALITY, t-5 Defendant,

16 and

L7 SEVEN-UP PETE JOINT VENTURE, 18 Intervenor.

19 Upon rnotion of Intervenor and for good cause shown, 20 IT IS HEREBY ORDERED thAt Intervenor shaI1 have to and 2L including January 6, L997, in which to file its Brief in 22 Response to Plaintiff's Motion for Reconsideration.Reconsic 23 ^. / .ft Dated this Af day of lUlC- , Les!. 24

25 District Judge

Au\01930N{AF FINAL ORDER RECEIVED

t{AlicY f,'IeEilEYrl]lT JAN 3 0 1997 CL[RK-:,1i, ; OCURT i t DEQ LEGAL UNIT ,l 2 /s:/rr@ lnrr Z3 oa Pll '9J Ttinut l-{r\rtuir;-,r. r,. 3 FI LED 8Y 4 D I f'rlT Y

5

6

7

I UOfitANA FIRST JUDICIAL DISTRICT COURT

9 COI'NTY OF LEWIS AND CI,ARK l-o ******************) ) 11 MONTANA ENVIRONIIENTAL INFORI'{ATION ) CAUSE NO. BDV-95.118{ CENTER, CLARK FORK-PEND ORErr,LIr ) L2 coALrTroN, woMENrs vorcE FoR ) THE EARTH, ) 1_3 ) Plaintiffs, ) L4 ) vs. ) L5 ) DEPARTMENT OF ENVIRONMENTAL ) FINAL ORDER L6 QUALITY, ) ) L7 Defendant, ) ) 1"8 and ) ) L9 SEVEN-UP PETE JOINT VENTURE, ) ) 20 Intervenor. ) ) 2I *,* * * * * * * * * * * * * * * * *) 22 This Court has before it a motion for reconsideration

23 filed by plaintiffs. The urotion seeks reconsideration of this 24 Courtrs Orders of August 5, 1996, denyingr Plaintiffs' request 25 for sunmary judgrrnent; and Augrust L4, L996, denying Plaintiffsl 1 request for a prelininary injunction. At this point, tlre Court

2 wiLl not atteupt to recap the procedural drama that has attended

3 this case. Ratlrer, tlre Court would refer the interested reader

4 to tbe aforeuentioned orrders for a sumnary of ttrese events. 5 Plaintiffs seek to obtain this Courtts order on the

6 constiiutionallty of Section 75-5-3LZQ) (j) , !{cA. llbis Courtrs

:+:. 7 August found a factual dispute that prevented tlre : :.i. Order of 5

8 Court from grariting aurnary Judgnnent to eLther party regarding 9 ttre constitutionaltty of ttris statute. Plalntiffs now Lnforn the 10 Court they feel there are no facts in dispute, and, request that tt the Court nrle on this issue. In order to get tttis matter L2 finalized, PlaintLffs indicate ttrey are wiLLing to dismiss Counta 13 L, 2 and g , and with a final nrling on the constitutionality- L4 issue, ttrey believe the matter will be ripe for .. The 15 Department of Environrnental Quality apparently agrees with this 16 process. Ilowever, Seven-Up Pete Joint Venture disagrees.

L7 Plaintiffs at page 7 of tbeir brief uake the following 18 statenent: trPlaintiffs doubt whether additionaL taatg will 19 change the Courtts legal conclusion on the issue, and thus a 20 final order is appropriate on Count 7 of this case.rl 2L j. The Court would point out that additional facts night 22 well change ttris Courtrs legal conclusion. However, since 23 Plaintiffs apparently are unable to come forth with those 24 additionaL facts, the notion to reconsider will be denied. 25 Plaintlffs aLso request ttris Court to issue a nrling oO FIITAL ORDER Page 2 t_ the constitutionality of the aforementioned statute.

2 Accordingly, this Court will, sonewhat reluctantly, rule on

3 the constitutionality issue. The Court finds that Section

4 75-5-3L7(2)(j), MCA, based upon the facts presented thus far,

5 is constitutional.

6 AIso, Counts L, 2 and 3 of_ Plaintiffst complaint are

7 disinissed. Plaintiffs are directed to present a judgment to this

8 Court in conforility with this order. 9 DATED this e7- day of JanuarY , L997 . L0 l-L

L2

L3 pc: Thomas M. France L4 David K. Wilson John F. North 15 Alan L. Joscelyn l_6 I,IEIC. ord

L7 k

1B

L9

20

2L

22

23

24

25

FINAIJ ORDER Page 3 Yiir}t*,Fii::i::.ff :*,_,:lT;-.*

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