Hillcrest Natural v. DEQ

                                                                                        12/13/2022


                                        DA 22-0142
                                                                                   Case Number: DA 22-0142

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        

HILLCREST NATURAL AREA FOUNDATION, INC.,
JOEL E. GUTHALS, ANN M. GUTHALS, MARC
VISCHER, ELLEN KNIGHT, ROSS WAPLES, and
VIRGINIA WAPLES,

          Petitioners and Appellants,

    v.

MONTANA DEPARTMENT OF ENVIRONMENTAL
QUALITY,

          Respondent and Appellee,

    and

THE CITY OF BILLINGS,

          Respondent, Intervenor,
          and Appellee.



APPEAL FROM:       District Court of the Thirteenth Judicial District,
                   In and For the County of Yellowstone, Cause No. DV 19-0192
                   Honorable Colette B. Davies, Presiding Judge

COUNSEL OF RECORD:

            For Appellants:

                   Trent M. Gardner, Kyle W. Nelson, Katherine B. DeLong, Goetz, Geddes
                   & Gardner, P.C., Bozeman, Montana

            For Appellee Department of Environmental Quality:

                   Nicholas A. Whitaker, Edward Hayes, Department of Environmental
                   Quality, Helena, Montana

            For Appellee City of Billings:

                   Brianne C. McClafferty, Matthew H. Dolphay, Holland and Hart, LLP,
                   Billings, Montana
                                 Submitted on Briefs: October 26, 2022

                                            Decided: December 13, 2022


Filed:
                V,„ 6A•-if
         __________________________________________
                           Clerk




                             2
Justice Beth Baker delivered the Opinion for the Court.


¶1     Hillcrest Natural Area Foundation, Inc. and several of its individual members appeal

the Thirteenth Judicial District Court’s decision to affirm the Montana Department of

Environmental Quality’s (DEQ) issuance of a solid waste management system (SWMS)

license to the City of Billings for future expansion of its Regional Landfill. Hillcrest raises

three issues on appeal:

       1. Did the District Court err by concluding that DEQ complied with
          Admin. R. M. 17.50.1005 when it approved the City’s license
          application?

       2. Did the District Court err when it concluded that DEQ did not need to
          prepare an EIS pursuant to Admin. R. M.. 17.4.608(1)(g)?

       3. Did the District Court err by not addressing whether the proposed
          expansion area violates § 75-10-212(2)(c), MCA?

Finding adequate support in the District Court record, we conclude that DEQ did not violate

the law, that it reasonably interpreted its own regulations, and that it considered relevant

factors when it granted the SWMS license. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     In 2015, the City applied to DEQ to amend its existing SWMS license to include

the proposed expansion area of its Class II facility, the Billings Regional Landfill. A

Class II facility can control the “storage, treatment, recycling, recovery, and/or disposal of

Groups II, III, and IV solid wastes.” Class II facilities require the strictest and most

protective features to protect human health and the environment.




                                               3
¶3       DEQ issued the City’s existing SWMS license in 1978 to include 421 acres of City

property. The proposed expansion area would increase the City’s SWMS license coverage

to encompass 350 contiguous acres of City-owned property located just south of the

Regional Landfill.     The Regional Landfill is located about 2,000 feet south of the

Yellowstone River. The City does not anticipate needing the expansion for another forty

to seventy-five years and expects to begin construction in twenty to twenty-five years.

¶4       The City identified fourteen wetlands interspersed over the proposed expansion

area.    Occupying 2.41 acres, these wetlands connect with twenty-two “first-order

intermittent streams.”     The twenty-two first-order streams flow into one “large

second-order intermittent stream” located in the center of the proposed expansion area.

The second-order stream flows into Blue Creek; Blue Creek connects to the Yellowstone

River.

¶5       The City admitted in its application that the construction of “landfill units and

associated features of the proposed expansion area would remove the 2.41 acres of existing

wetlands identified on site.” The City acknowledged that these wetlands and the associated

streams “have direct contact to Blue Creek, which flows into the Yellowstone River via

the second order drainage.” Therefore, the City noted that its proposed expansion area, in

addition to DEQ approval, likely also would require a permit from the U.S. Army Corps

of Engineers pursuant to Section 404 of the Clean Water Act (CWA) because the

Yellowstone River is a designated “traditional navigable water.” DEQ approved the City’s

application and issued it an updated SWMS license, but it conditioned the City’s ability to

move forward on first obtaining a Section 404 permit from the Corps of Engineers “prior

                                             4
to any wetland disturbance.”      DEQ also required that the City construct “mitigated

wetlands” before expanding to help offset the anticipated loss of the fourteen wetlands.

¶6     Prior to granting the license, DEQ reviewed the City’s application under the

Montana Environmental Policy Act (MEPA) for potential environmental impacts. DEQ

drafted an environmental assessment (EA) and took extended public comment, including

a public hearing. Among the public commenters was Hillcrest. Hillcrest owns Hillcrest

Natural Area, a park open to the public that lies adjacent to the proposed expansion area.

Hillcrest raised concerns regarding the proximity of the proposed expansion area in relation

to the Natural Area’s hiking trails, commenting that because the landfill operations would

be visible from the Natural Area, it would ruin the aesthetic of the hiking trails and violate

certain restrictive covenants. DEQ responded to this comment, explaining that no land use

restrictions conflicted with the proposed expansion area.

¶7     Hillcrest, along with several of its members, challenged DEQ’s approval of the

City’s application in District Court. The City intervened. The parties filed cross-motions

for summary judgment. After hearing oral argument on the matter, the District Court

granted summary judgment to DEQ and the City. Hillcrest appeals.

                               STANDARDS OF REVIEW

¶8     “We review a district court’s grant of summary judgment de novo,” applying the

criteria set forth in M. R. Civ. P. 56(c). Upper Mo. Waterkeeper v. Mont. Dep’t of Envtl.

Quality, 

, 

, 

.

¶9     “We review an informal agency decision—one not classified as a contested case

under the Montana Administrative Procedure Act—to determine whether the decision was

                                              5
arbitrary,   capricious,   unlawful,   or   not   supported   by   substantial   evidence.”

Upper Mo. Waterkeeper, ¶ 14 (citing Clark Fork Coal. v. Mont. Dep’t of Envtl. Quality,

, 

, 

). Review under this standard “focuses

on whether the agency action is (1) unlawful, or (2) arbitrary and capricious.”

Upper Mo. Waterkeeper, ¶ 14 (citing North Fork Pres. Ass’n v. Dep’t of State Lands,

, 

 (1989)). A decision is not arbitrary or capricious

when it relies on “consistent, rational, and well-supported agency decision-making.”

Mont. Envtl. Info. Ctr. v. Mont. Dep’t of Envtl. Quality, 

, ¶ 26, 

, 

. A well-supported decision is one that considers “relevant data” and

can articulate “a satisfactory explanation for. . . action, including a rational connection

between the facts found and the choice made.” Clark Fork Coal., ¶ 47.

¶10    We discuss additional standards of review as applicable to the separate issues that

Hillcrest raises.

                                       DISCUSSION

¶11    Hillcrest appeals the District Court’s order on three of the challenges it brought in

the action. First, Hillcrest argues that DEQ’s approval of the City’s SWMS license

application violated the Solid Waste Management Act’s (SWMA) regulations because the

City did not submit certain required demonstrations prior to approval. Second, Hillcrest

argues that DEQ unreasonably determined that an EIS was not necessary to its

environmental impact review in violation of Admin. R. M. 17.4.608(1)(g). Third, Hillcrest

argues that the proposed expansion area violates § 75-10-212(2)(c), MCA, and that the



                                             6
District Court erred by not considering this statute when it granted summary judgment to

DEQ and the City.

¶12    Issue One: Did the District Court err by concluding that DEQ complied with
       Admin. R. M. 17.50.1005 when it approved the City’s license application?

¶13    Under SWMA, DEQ has the authority to regulate the operation, design, and location

of SWMSs. Section 75-10-204, MCA. Pursuant to Admin. R. M. 17.50.1005(1): “a lateral

expansion of an existing Class II . . . landfill unit, may not be located in wetlands, unless

the owner or operator submits to the department for approval [certain specified]

demonstrations[.]” Among these demonstrations, Admin. R. M. 17.50.1005(1)(a) and

(d) require the applicant to rebut the presumption that a practicable alternative to the

proposed location exists that does not endanger wetlands and to show the steps taken by

the applicant to mitigate wetland destruction. Admin. R. M. 17.50.1005(1)(a) and (d) are

applicable to the extent required by the CWA or “applicable Montana wetlands laws.”

¶14    DEQ determined that the 2.41 acres of affected wetlands are under the jurisdiction

of the CWA. Based on this determination, DEQ required the City to obtain a Section 404

permit prior to proceeding with construction or any wetland disturbance. DEQ concluded

that because obtaining a Section 404 permit requires the City to demonstrate no available

practicable alternative to its chosen location and the steps taken to minimize adverse effects

on wetlands, conditioning license approval on first obtaining a Section 404 permit satisfied

the requirement for demonstrations in Admin. R. M. 7.50.1005.

¶15    We give “great weight” to an agency’s understanding of its own rule because

agencies possess “specific, technical, and scientific knowledge surpassing that of the


                                              7
[courts].” Mont. Envtl. Info. Ctr., ¶¶ 23, 26. When evaluating an agency’s interpretation

of its own rule, courts consider whether the agency’s interpretation is within the “range of

reasonable interpretation.” Clark Fork Coal, ¶ 20.

¶16    The CWA regulates the discharge of “dredged” or “fill” material into waters of the

United States, including wetlands.1 

, 1344. Section 404 of the CWA

generally requires a permit when the discharge of such material will impact “navigable

waters” of the United States. 

(a), (e)(1). Section 404 permits are granted

by the Corps of Engineers. 

(a), (d). To obtain a Section 404 permit,

applicants must demonstrate that there is no “practicable alternative to the proposed

discharge which would have less adverse impact on the aquatic ecosystem, so long as the

alternative does not have other significant adverse environmental consequences.”

(a). Additionally, applicants must demonstrate that they will take the

“appropriate” and “practicable” steps necessary to “minimize potential adverse impacts of

the discharge on the aquatic ecosystem.” 

(d).

¶17    The District Court found that DEQ acted within a “reasonable range” of its own rule

when determining that the information provided by the City was sufficient under

Admin. R. M. 17.50.1005. The court concluded that because DEQ’s regulations are nearly

identical to the demonstrations required by the Section 404 permitting process, it was not

unreasonable to satisfy the conditions of Admin. R. M. 17.50.1005(1)(d) by requiring the


1
 The Supreme Court of the United States heard oral argument October 3, 2022, on whether and
how wetlands are subject to the CWA. See Sackett v. EPA, 

 (9th Cir. 2021, cert.
granted, Jan. 24, 2022). Though the Court’s opinion could impact this case, we decide the matter
before us under the extant laws and regulations.
                                               8
City to obtain a Section 404 permit prior to moving forward. It also found § 75-1-220(1),

MCA, applicable, thus limiting the need for DEQ to conduct an alternative analysis under

Admin. R. M. 17.50.1005(1)(a). Nonetheless, the court found that the City adequately

rebutted the presumption of a practicable alternative that did not involve wetlands “by

logically analyzing and rejecting four alternatives on [the] property it has available.”

¶18    Hillcrest argues that DEQ impermissibly granted the City’s SWMS license

application without considering the demonstrations required by Admin. R. M.

17.50.1005(1)(a) and (d). The City provided only alternatives that disturbed wetlands.

Hillcrest contends that DEQ should have required the City to present, in its application, an

alternative not involving wetlands pursuant to Admin. R. M. 17.50.1005(1)(a). Hillcrest

argues further that the general provisions in § 75-1-220, MCA, “must yield” to the specific

requirements in Admin. R. M. 17.50.1005 to reconcile a “clear and unavoidable conflict,”

citing Kadillak v. Anaconda Co., 

, 

 (1979).

¶19    DEQ and the City argue that the District Court did not err when it concluded that

DEQ made a “reasoned determination” that the City satisfied the requirements of

Admin. R.    M. 17.50.1005.         They maintain that DEQ            correctly interpreted

Admin. R. M. 17.50.1005 when it conditioned the City’s ability to move forward with

expansion on first obtaining a Section 404 permit.

Hillcrest challenges DEQ’s interpretation of its own regulation; the District Court thus

properly considered whether DEQ interpreted Admin. R. M. 17.50.1005 within a

“reasonable range” of its rule, evaluating whether DEQ had sufficient information to

support its decision. Mont. Envtl. Info. Ctr., ¶ 26. On de novo review, we first consider

                                              9
DEQ’s compliance with Admin. R. M. 17.50.1005(1)(a). The rule requires an applicant to

clearly rebut the presumption that “a practicable alternative to the proposed landfill is

available that does not involve wetlands.” This demonstration is required “when applicable

under” federal laws or Montana wetlands laws. Admin. R. M. 17.50.1005(1)(a). An

“alternative analysis” is “an evaluation of different parameters, mitigation measures, or

control measures that would accomplish the same objective as those included in the

proposed action by the applicant.” Section 75-1-220(1), MCA. For “a project that is

not . . . state-sponsored . . .” an alternative analysis “does not include an alternative facility

or an alternative to the proposed project itself.” Section 75-1-220(1), MCA.

¶20    The parties concede that the proposed expansion area is not a state-sponsored

project. We thus agree with the District Court that it was reasonable for DEQ to determine,

under the plain language of § 75-1-220(1), MCA, that its analysis did not need to include

“an alternative facility or an alternative to the proposed project itself.” See Park Cty. Envtl.

Council v. Mont. Dep’t of Envtl. Quality, 

, 

, 

.

¶21    Hillcrest wrongly relies on Kadillak to argue that Admin R. M. 17.50.1005(1)(a)

requires what § 75-1-220(1), MCA, does not. In Kadillak, this Court assessed a conflict

between MEPA and the Hard Rock Mining Act (HRMA)—both statutes that applied to the

agency’s permitting process. 

, 

. This Court

acknowledged the well-settled principle that a specific statute will control a general statute;

the 60-day deadline in HRMA controlled because it was a specific statute compared to

MEPA’s general review requirements. Kadillak, 

, 

.

Hillcrest argues that likewise here MEPA’s § 75-1-220(1), MCA, should yield to DEQ

                                               10
regulation and a more specific statute under SWMA, § 75-10-221(3), MCA, requiring the

City include “information that [DEQ] may by rule require” in its SWMS license

application.

¶22    Hillcrest’s argument overlooks an important distinction. Kadillak does not apply

here because there is no conflict between applicable statutes. SWMA does not require an

applicant to identify an alternative site that does not involve wetlands; it instead authorizes

DEQ to adopt rules requiring “information” about the proposal. See § 75-10-221(3), MCA.

The rule, Admin. R. M. 17.50.1005(1)(a), requires an applicant, when applicable under

Montana law, to rebut the presumption that a “practicable alternative” to the proposed

landfill exists that does not involve wetlands.        Section 75-1-220(1), MCA, defines

“alternatives analysis” and limits what such an analysis includes when a project is not

“state-sponsored.” The statute and rule do not conflict. If they did, however, the statute

would not yield to the rule.        An administrative rule that conflicts with statutory

requirements or exceeds authority provided by statute is invalid. Mont. Indep. Living

Project v. Mont. Dep’t of Transp., 

, ¶ 31, 

, 

(citations omitted). DEQ properly applied its rule to avoid any such conflict.

¶23    The City provided four alternatives for DEQ to review, all within the same 350-acre

parcel of land. The City offered only alternatives that also impacted wetlands. It was

reasonable for DEQ to understand that the City could not provide an alternative without

wetland endangerment because the City was limited in the land it had available. Hillcrest

has not established that § 75-1-220(1), MCA, required the City to identify alternative

locations outside its available land area in order to show a practicable alternative without

                                              11
wetland endangerment under Admin. R. M. 17.50.1005(1)(a). As the District Court

concluded, “the statute limits . . . analysis [of alternatives] to state-sponsored projects

before an alternative facility or an alternative to [the] project itself must be considered.”

Accordingly, DEQ’s Final EA “would necessarily not include discussion of an alternative

facility that does not involve wetlands.” We agree with the District Court that “DEQ was

not required to consider an alternative facility or an alternative to the proposed project

itself.”

¶24        Further, under current federal CWA regulations, the City will be required to

demonstrate it has no “practicable alternative to the proposed discharge which would have

less adverse impact on the aquatic ecosystem, so long as the alternative does not have other

significant adverse environmental consequences.” 

(a). Given this

requirement, DEQ acted within the range of reason when it concluded that conditioning

the City’s permit on obtaining a Section 404 permit satisfied Admin. R. M.

17.50.1005(1)(a). DEQ’s decision that the City satisfied Admin. R. M. 17.50.1005(1)(a)

did not unlawfully conflict with Montana statutes nor was it an unreasonable interpretation

of the rule.

¶25        Admin. R. M. 17.50.1005(1)(d) requires, to the extent necessary under the CWA,

that applicants demonstrate the steps taken to minimize wetland loss. Similar to subsection

(1)(a), subsection (1)(d) of the rule requires the applicant to make such a demonstration “to

the extent required under . . . Section 404 of the Federal Clean Water Act . . . or applicable

Montana wetlands laws.” DEQ required that, prior to the start of construction, the City



                                             12
must obtain a federal Section 404 permit and mitigate the anticipated disruption of

wetlands.

¶26    “The Section 404 permit process is governed simultaneously by Corps Regulations,

33 C.F.R. Parts 320-29, and by EPA guidelines, 40 C.F.R. Part 230. Both sets of rules

must be observed.” Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps

of Eng’rs., 

 (9th Cir.), amended (2008) (quotation omitted). The

National Environmental Policy Act applies to the federal permitting process, obligating the

agency to “consider every significant aspect of the environmental impact of a proposed

action . . . and inform the public that it has indeed considered environmental concerns in

its decisionmaking process.” Bering Strait Citizens, 

.

¶27    Based on the requirements of the Section 404 permitting process, DEQ concluded

that, under Admin. R. M. 17.50.1005(1)(d), obtaining a Section 404 permit would

demonstrate that the City took steps to minimize the impact to wetlands prior to

construction of the proposed expansion area. Specifically, 

(d) requires

an applicant to demonstrate that “appropriate and practicable steps have been taken which

will minimize potential adverse impacts of the discharge on the aquatic ecosystem.”

¶28    The District Court record establishes that DEQ conditioned its approval of the

SWMS license on the City obtaining a Section 404 permit and mitigating wetlands loss

prior to construction. If the Corps of Engineers determines that an alternative to the

proposed expansion area does exist that does not impact wetlands, then the City will not

be able to move forward. Similarly, if the Corps of Engineers is dissatisfied with the City’s

plan to mitigate loss of wetlands, then it can deny the Section 404 permit, resulting in denial

                                              13
of the City’s proposed expansion area. Considering the relationship between Admin. R. M.

17.50.1005(1)(d) and the CWA, it was not unreasonable for DEQ to determine that

approving the SWMS license application subject to these conditions satisfied its own rule.

We agree with the District Court “that DEQ had sufficient information to make a reasoned

determination to approve the City’s application, factoring in each of the required

demonstrations, despite the inevitable removal of the wetlands areas on the approved site.”

¶29   Issue Two: Did the District Court err when it concluded that DEQ did not need to
      prepare an EIS pursuant to Admin. R. M. 17.4.608(1)(g)?

¶30   Hillcrest raised concerns during public comment regarding “restrictive covenants”

related to the Natural Area; it maintains that proceeding with the proposed expansion area

would violate restrictions imposed by a “1995 BLM Plan.” Hillcrest argues that the

Development and Management Plan submitted by the City in 1995 to the U.S. Department

of Interior, Bureau of Land Management (BLM) for approval became a formal BLM

decision.   Therefore, because the DEQ failed to evaluate the Development and

Management Plan, this Court must remand to DEQ to prepare an EIS specifically analyzing

the Development and Management Plan’s conflict with the proposed expansion area.

¶31   In its comments, Hillcrest provided two letters to support its position: a September

1995 letter from the City to BLM and a November 1995 letter from BLM to the City. The

September letter referenced the City’s pending application for a land patent to use a

17.45-acre parcel as a methane monitoring area for the Regional Landfill. The 17.45-acre

parcel is located southwest of the Regional Landfill. The Regional Landfill lies between

the 17.45-acre parcel and the proposed expansion area. The City submitted a draft


                                            14
Development and Management Plan with its land patent application. The September letter

requested that the draft be updated to reflect two amendments:

       1. The City will not extend landfilling operations into the 26.3-acre
          monitoring area, and

       2. The City will design and construct the landfill such that daily operations
          are not visible from the Natural Area.

In the November letter, BLM issued a decision stating that the draft had been amended to

include the September revisions.

¶32    In January 1997, Hillcrest and the City executed a Buy-Sell Agreement. The City

exchanged a 30-acre parcel of city-owned property for the 17.45-acre parcel relevant to the

land patent it sought from BLM in 1995. The Buy-Sell Agreement was altered to include

further restrictions. The Addendum included the following:

       1. The City will not extend landfilling operations into the 17.45-acre parcel.
          The parcel is to be used as a buffer zone where landfill-gas and
          groundwater will be monitored.

       2. The City will design and construct the landfill such that daily operations
          are not visible from the Natural Area.

The Addendum specified that these two restrictions applied to the 17.45-acre parcel.

¶33    In March 1997, BLM authorized title transfer from Hillcrest to the City for the

17.45-acre parcel. BLM issued a land patent to Hillcrest about five months prior for the

lots that the City applied to use as a methane monitoring area in 1995. BLM understood

the purpose of the transfer to be the City’s development of a methane monitoring area for

its Regional Landfill.




                                            15
¶34    DEQ published its Final EA regarding the City’s SWMS license application on

December 17, 2018.         In its visual impacts analysis, DEQ concluded that “no local

restrictions . . . prohibit the location of the facility at the site the applicant selected.” It also

concluded that the proposed expansion area did not “conflict with any local, state, or

federal law, requirements, or formal plans.”

¶35    The District Court found that the Development and Management Plan at issue

qualified as a BLM formal plan. It determined that the DEQ appropriately concluded that

any land use restrictions found in the Development and Management Plan or the Buy-Sell

Agreement did not apply to the proposed expansion area. The court concluded that DEQ

made a “reasoned decision” that any restrictions applied only to the existing Regional

Landfill and not to future expansions, and therefore, an EIS was not necessary.

¶36    DEQ and the City argue that DEQ’s decision to complete a comprehensive EA in

lieu of preparing an EIS was permissible. DEQ argues that Hillcrest mischaracterizes the

draft of the Development and Management Plan as a formal BLM plan. DEQ maintains

that it nonetheless considered and appropriately determined that the proposed expansion

area does not conflict with the Development and Management Plan. DEQ argues that the

Development and Management Plan is “specific to the 17.45-acre parcel subject to the

BLM land patent.” Therefore, BLM’s “regulatory jurisdiction is limited to the parcel

subject to the land patent.” Due to this limitation, the provisions in the Development and

Management Plan do not trigger the need for an EIS because they do not apply to the

proposed expansion area. Additionally, DEQ argues that whether a conflict exists between



                                                 16
the Development and Management Plan and the proposed expansion area is a question it

considered and addressed when determining not to require an EIS.

¶37    We review the sufficiency of an agency’s environmental review to determine

whether the agency acted unlawfully or in an arbitrary and capricious manner.

Bitterrooters for Planning, Inc. v. Mont. Dep’t of Envtl. Quality, 

,

, 

. Agency actions within permissible statutory bounds are

lawful and deserve deference. Mont. Envtl. Info. Ctr., ¶ 22 (citations omitted). If, however,

the agency’s decisions are incorrect or unlawful, courts need not defer. Mont. Envtl. Info.

Ctr., ¶ 22 (citations omitted). We do not reverse an agency decision under the arbitrary

and capricious standard unless it was a “clear error of judgment.” North Fork Pres. Ass’n,

, 

. Nor do we substitute a different conclusion in the light

of “inconsistent evidence or evidence which might support a different result.” Mont.

Wildlife Fed’n v. Mont. Bd. of Oil and Gas Conservation, 

,

, 

. When evaluating whether an agency decision was arbitrary

or capricious, we consider the “relevant factors” that support the decision; though

“searching and careful,” the “ultimate standard of review is a narrow one.” Mont. Envtl.

Info. Center. v. Mont. Dep’t of Transp., 

, 

, 

(citations omitted).

¶38    MEPA requires the preparation of an EIS when “major actions of state government

significantly affect[] the quality of the human environment.” Section 75-1-201(1)(b)(iv),

MCA.     Similarly, Admin. R. M. 17.4.607(1)(b) requires the preparation of an EIS

“whenever, based on the criteria of ARM 17.4.608, the proposed action is a major action

                                             17
of state government significantly affecting the quality of the human environment.” “An

impact may be adverse, beneficial, or both. If none of the adverse effects of the impact are

significant, an EIS is not required.” Admin. R. M. 17.4.608(2). DEQ “shall consider”

criteria set forth in Admin. R. M. 17.4.608(1) when determining the “significance” of an

impact in evaluating the need for an EIS. One factor is “potential conflict with local, state,

or federal laws, requirements or formal plans.” Admin. R. M. 17.4.608(1)(g). This

regulation does not require an EIS simply because such a plan exists, but only if the impact

has “a significant adverse effect[.]” Admin. R. M. 17.4.608(2).

¶39    Hillcrest argues, and DEQ disputes, that the Development and Management Plan

used to obtain the land patent for the 17.45-acre parcel is a BLM “formal plan.” BLM may

convey public lands for public purposes. 

(a). Pursuant to the

Recreation and Public Purposes Act, an applicant seeking a BLM land patent or the transfer

of title to an existing BLM land patent must include in its application “a detailed plan and

schedule for development of the project and a management plan . . . .”

(b). BLM enforces compliance with the applicant’s submitted plan and

may initiate proceedings to revert title back to BLM if the approved development and

management plan is not followed. 

(a)(4). Hillcrest points to the

“decision” entered by BLM, found in the November letter to adopt certain amendments to

the Development and Management Plan, as proof that the Development and Management

Plan is a formal BLM plan. The transactional documents between the City and BLM over

a parcel of land separate from the expansion area are not equivalent to a zoning or other

land use regulation affecting the City’s proposal. DEQ properly concluded that there were

                                             18
no land use restrictions prohibiting the proposed expansion. Nonetheless, to the extent the

visibility provision added to the Development and Management Plan could be construed

as a local restriction or requirement, the record reflects that DEQ did consider this language

as a potential conflict when weighing the need for an EIS in its EA. See Admin. R. M.

17.4.608(1)(g).

¶40     MEPA demands that an agency take a “hard look” at the “potential environmental

consequences.”      Belk v. Mont. Dep’t of Envtl. Quality, 

,

, 

 (citation omitted). “Implicit in the requirement [to] . . . take

a hard look . . . is the obligation to make an adequate compilation of relevant information,

to analyze it reasonably, and to consider all pertinent data.” Clark Fork Coal., ¶ 47. This

Court does not take its own “hard look” but “requires that the agency do so.” Clark Fork

Coal., ¶ 47. As a reviewing court, we focus “on the validity and appropriateness of the

administrative decision[-]making process without intense scrutiny of the decision itself.”

Clark Fork Coal., ¶ 47.

¶41    When an agency drafts an EA, the EA “serves as both the initial tool for determining

whether a more intensive EIS is necessary and as the mechanism for required

environmental review of agency actions that will likely impact the environment but not

sufficiently to require an EIS.” Bitterrooters, ¶ 20; see Admin. R. M. 17.4.607(2)(c). The

record demonstrates that DEQ considered Hillcrest’s concerns and relevant evidence to

formulate its conclusion that the Development and Management Plan did not pose a

“significant” adverse effect that would warrant an EIS. In its EA, DEQ considered the

visual impacts of the proposed expansion area. DEQ reviewed the BLM decision regarding

                                             19
the Development and Management Plan. It also considered the Buy-Sell Agreement

between the City and Hillcrest. DEQ noted that the land use restrictions in the Buy-Sell

Agreement reflected nearly verbatim the language used in the Development and

Management Plan regarding the 17.45-acre parcel for the methane monitoring area.

¶42    An agency’s environmental review is meant to evaluate a project’s impact on the

human environment. Admin. R. M. 17.4.607, 17.4.603(12) defines “human environment”

as the “biological, physical, social, economic, cultural, aesthetic factors that interrelate to

form the environment.” The record reflects that DEQ evaluated the visual impacts of the

proposed expansion area on the human environment restriction contained in the

Development and Management Plan. In its Final EA, DEQ concluded that the topography

of the site and the fact that the landfill would fill a coulee would limit any visual impacts

in both extent and duration. It also noted that the tree-and brush-planting measures the

City would implement would mitigate most anticipated visual impacts from the project.

DEQ further noted that any visual impacts would be minimized over time because, “[u]pon

closure, the final landfill cover would appear as low rounded hills that blend into the

existing natural surrounding landscape.”

¶43    In addition to its analysis in the Final EA, DEQ responded to Hillcrest’s comment

regarding the Development and Management Plan:

       In January 1997, the City of Billings and the Hillcrest Natural Area
       Foundation completed a land exchange where 30 acres of City-owned
       property was exchanged for 17.45 acres of Foundation-owned property. The
       terms of the exchange prohibit the City from extending landfilling operations
       into the 17.45-acre parcel. The parcel at issue in that land exchange is
       separate from the expansion area, and, thus, the prohibition against
       landfilling activities described by commenters does not apply to the

                                              20
      expansion area. The terms also require that [the City] conduct its landfilling
      activities at the existing landfill in such a manner that daily operations are
      not visible from the Hillcrest Natural Area.

DEQ followed this assessment with a direct response regarding visual impacts caused by

the proposed expansion area:

      According to analysis of potential visual impacts . . . most of the operations
      will not be visible as the base and slopes of the coulee is [sic] filled with
      waste. Trees would be planted along the north perimeter of the landfill . . . .
      These vegetative barriers would be developed prior to commencement of the
      southern landfill expansion to shield the distant view from homes . . . . The
      trees would also shield the view of drivers heading south along Hillcrest
      Road approaching the landfill from the north . . . . The topographic barriers
      to views of the proposed landfill area would limit the effects on
      viewshed . . . . In view lines . . . the closed landfill would appear as a small
      grassy knob rising within and blending into the surrounding largely grassy
      rangeland. The objective of the Bureau of Land Management (BLM) Visual
      Resource Management is to manage public lands in a manner which will
      protect the quality of the scenic values of these lands as required by Federal
      law. The analysis provided in the final EA . . . meets the same goals.

¶44   It is clear from this record that DEQ did not simply dismiss the Development and

Management Plan as inapplicable but considered pertinent information and came to a

reasoned decision that its restrictions did not necessitate an EIS. This Court will not

overturn an otherwise reasoned agency decision merely because the evidence “might

support a different result.” Fortner v. Broadwater Conservation Dist., 

,

, 

 (citations omitted). The record shows that DEQ considered

relevant factors and determined that the Development and Management Plan did not

present a conflict leading to a significant adverse effect on the quality of the human

environment that would compel an EIS. Under our “narrow” standard of review, we

conclude that DEQ’s decision was not arbitrary or capricious. See Mont. Wildlife Fed’n,


                                            21
¶¶ 24-26. We defer to DEQ because this conclusion is not outside statutory parameters

and is not a clear error.

¶45    Issue Three: Did the District Court err by not addressing whether the proposed
       expansion area violates § 75-10-212(2)(c), MCA?

¶46    Hillcrest argues that the District Court erred when it did not consider § 75-10-212,

MCA, in its order granting summary judgment to DEQ and the City. Section 75-10-212,

MCA, provides:

       (1) A person may not dispose of solid waste except as permitted under this
           part.
       (2) It is unlawful to dump or leave any garbage, dead animal, or other debris
           or refuse:
           a. in or upon any highway, road, street, or alley of this state;
           b. in or upon any public property, highway, street, or alley under the
                control of the state of Montana or any political subdivision of the state
                or any officer or agent or department of the state or political
                subdivision of the state;
           c. within 200 yards of a public highway, road, street, or alley, or public
                property;
           d. on privately owned property where hunting, fishing, or other
                recreation is permitted; however, this subsection does not apply to the
                owner, the owner’s agents, or those disposing of debris or refuse with
                the owner’s consent.

Hillcrest argues that § 75-10-212(2)(c), MCA, renders the proposed expansion unlawful

because it would allow solid waste disposal within 200 yards of a public roadway.

¶47    “The interpretation of a statute is a question of law that we review for correctness.”

Clark Fork Coal. v. Tubbs, 

, 

, 

 (citation

omitted).    When the understanding of a statute is in doubt, we give “respectful

consideration” to the meaning ascribed by the agency when the agency has a “long and

continued course of consistent interpretation.” City of Great Falls v. Mont. Dep’t of Pub.


                                              22
Serv. Regulation, 

, 

, 

 (citations omitted).

“Statutory construction should not lead to absurd results if a reasonable interpretation can

avoid it.” City of Missoula v. Fox, 

, ¶ 18, 

, 

(quotation omitted).

¶48     The statutes governing waste and litter control are found in title 75, chapter 10, part

2 of the MCA. Under § 75-10-221(1), MCA, “a person may not dispose of solid waste or

operate a [SWMS] without a license from [DEQ].” No statutes explicitly mandate the

instances for which DEQ can or cannot grant an SWMS license. The DEQ must, however,

“adopt rules governing [SWMS] . . . .” Section 75-10-204, MCA. DEQ’s regulations

addressing the operations and locations of landfills subject to licensure under SWMA are

found    in   Admin.     R.   M.   17.50.1000      through   Admin.    R.   M.    17.50.1118.

Admin. R. M. 17.50.1009 specifies restrictions on landfill locations.

¶49     DEQ and the City argue that the plain language of § 75-10-212(1), MCA, reflects

that it is an exception to the general prohibitions on dumping found in § 75-10-212(2),

MCA, because the two subsections describe “distinct activities.” They interpret the

language in subsection (1)—prohibiting disposal of “solid waste except as permitted under

this part”—to reference the “Licensing of Refuse Disposal and Transportation of SWMA.”

Subsection (1), Appellees contend, “is aimed at landfills.” To support their contention,

Appellees point to § 75-10-221(1), MCA, providing that “a person may not dispose of solid

waste or operate a[n] [SWMS] without a license from [DEQ].” Appellees argue that this

cannot mean that all individuals must obtain a license prior to using a licensed landfill;



                                              23
subsection (1) therefore must apply to landfills as an exception to subsection (2), which

applies to the general public.

¶50    The City posits that “it makes no ‘logical’ sense” to apply subsection (2) to landfills

because the results would be “absurd.”         The City demonstrates this absurdity with

§ 75-10-212(2)(b), MCA, which prohibits dumping on public property under control of the

State or a political subdivision of the State. The City argues that prohibiting landfills “from

operating in all of the locations listed in subsection (2) would produce the absurd result of

preventing all municipalities and counties from operating landfills on the land they

control.” Additionally, DEQ maintains that it has never interpreted § 75-10-212(2)(c),

MCA, to apply to landfills granted SWMS licenses and its interpretation should be

“respectfully considered by this Court.”

¶51    DEQ and the City argue further that the legislative history of § 75-10-212,

MCA, supports their understanding of the statute.            Prior to incorporation in the

MCA, § 75-10-212(1) and (2)(c) originated in separate titles of the Revised Codes of

Montana. See Dumping garbage or other debris or refuse upon or near highway or public

recreational property, § 31-1014 R.C.M. (1947) (retitled § 32-4410); Legislative findings

and policy, § 69-4001 R.C.M. (1947); License required, § 694004 R.C.M. (1947).

Incorporated statutes from the Revised Codes of Montana are construed according to the

original intent of the statute. Section 1-11-103(3), MCA. Appellees reason that “[i]t was

never the Legislature’s intent that subsection (1) and subsection (2) address the same actors

or same activities.” Therefore, they suggest, legislative history supports reading subsection



                                              24
(1) as excepting landfills from general prohibitions and subsection (2) as applied to the

general public.

¶52    We are persuaded by the City’s argument regarding the plain language of

§ 75-10-212, MCA.      The statute makes clear that subsection (1) and subsection (2)

reference distinct activities. Section 75-10-212(1), MCA, provides that, unless “permitted

under this part,” a person may not dispose of solid waste in a manner prohibited by

subsection (2). The exception does not say “permitted under this section.” We evaluate a

statute’s plain meaning “in context of the statute as a whole, and in furtherance of the

manifest purpose of the statutory provision and the larger statutory scheme in which it is

included.” Clark Fork Coal. v. Mont. Dep’t of Natural Res. & Conservation, 

,

¶ 36, 

, 

. Therefore, the entirety of the statutory part must be

considered when evaluating how solid waste may be disposed. See Eldorado Coop. Canal

Co. v. Hoge, 

, 

, 

.

¶53    Giving effect to subsection (1) for permitted activity, § 75-10-212, MCA, clarifies

that landfills may operate when and where licensed by DEQ, notwithstanding the statute’s

general prohibited disposal of garbage in the listed locations. When granting licenses, DEQ

shall “adopt rules governing solid waste management systems . . . .” Section 75-10-204,

MCA. DEQ has not adopted a rule prohibiting licensed SWMS facilities from operating

within 200 yards of a public roadway. Further, § 75-10-212(2)(b), MCA, prohibits persons

from dumping “in or upon public property.” Unless read to consider landfills as an

exception under subsection (1), this statute would create an absurd scheme under which



                                            25
landfills could not exist on government-owned land. See City of Missoula, ¶ 18 (this Court

avoids statutory interpretations that foster absurd results).

¶54    Considering the plain language of § 75-10-212, MCA, and the surrounding statutes

and regulations that require DEQ to set licensing parameters for solid waste disposal,

DEQ’s interpretation of § 75-10-212, MCA, is not unreasonable. We conclude that DEQ

did not act unlawfully under § 75-10-212, MCA, when it granted the City’s license.

                                      CONCLUSION

¶55    We affirm the District Court’s decision to uphold DEQ’s approval of the City’s

SWMS license application.


                                                   /S/ BETH BAKER


We Concur:

/S/ LAURIE McKINNON
/S/ JIM RICE
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR




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