02/22/2022
DA 21-0117 Case Number: DA 21-0117
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 38
HENRY and DIANE BELK,
Plaintiffs and Appellants,
v.
MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, an agency of the State of Montana, and GLACIER STONE SUPPLY, INC.,
Defendants and Appellees.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-15-2019-328-D Honorable Dan Wilson, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
David K. W. Wilson, Jr., Morrison Sherwood Wilson & Deola, Helena, Montana
Bruce A. Fredrickson, Rocky Mountain Law Partners, P.C., Kalispell, Montana
For Appellee Montana Department of Environmental Quality:
Edward Hayes, Staff Attorney, Department of Environmental Quality, Helena, Montana
For Appellee Glacier Stone Supply, Inc.:
Mark L. Stermitz, Danielle A.R. Coffman, Crowley Fleck PLLP, Missoula, Montana
Darrell S. Worm, Ogle, Worm & Travis, PLLP, Kalispell, Montana Submitted on Briefs: December 15, 2021
Decided: February 22, 2022
Filed:
c ir-641.—if __________________________________________ Clerk
2 Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Henry and Diane Belk appeal a December 4, 2020 summary judgment order from
the Eleventh Judicial District Court in Flathead County. That order affirmed a decision by
the Montana Department of Environmental Quality (DEQ) to issue a mining permit to
Glacier Stone Supply, Inc.1 The Belks also appeal the District Court’s May 1, 2020 order
denying their motion to supplement the administrative record.
¶2 We restate the issues on appeal as follows:
Issue One: Did the District Court err in its interpretation of a Montana Environmental Policy Act provision concerning regulatory impacts on private property rights?
Issue Two: Did the District Court err in granting summary judgment to DEQ on its compliance with the Montana Environmental Policy Act?
Issue Three: Did the District Court err in denying the Belks’ motion to supplement the record?
¶3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Glacier Stone Supply extracts architectural and landscaping stone from a quarry it
operates in Flathead County. The quarry sits on a small ridgetop about one mile from Little
Bitterroot Lake and several miles northwest of Marion. Glacier Stone leases the quarry
sites from the landowner, William Jarvis. To comply with Montana’s Metal Mine
Reclamation Act (MMRA), Jarvis had filed a “Small Miner Exclusion Statement” (SMES)
1 The State of Montana, through the Office of the Attorney General, appeared in the matter below as an intervenor to defend a statutory provision from constitutional challenge. The District Court did not ultimately reach that matter, so the State makes no appearance on appeal and has been removed from the caption in this case. 3 for his property, which described two sites, the “Upper” and “Lower” Canyon Creek
Quarries. Under the MMRA, operators that disturb less than five acres are exempt from
permitting requirements as long as they file an SMES. Section 82-4-303(30), MCA.
¶5 DEQ sent Glacier Stone and Jarvis a violation letter in 2016. They could not qualify
for the “small miner” exception because the two sites were less than one mile apart and
together disturbed more than 10 acres. Section 82-4-303(30)(a)(ii), MCA. DEQ offered
two corrective options: Glacier Stone could either reclaim one entire site and enough of the
second site to bring it under five disturbed acres, or it could apply for a full operating permit
under the MMRA and its reclamation standards.
¶6 Glacier Stone submitted a permit application in 2017. It proposed a quarry
operation that would disturb approximately 35 total acres over a 25-year span. This would
include removing the ridgetop’s upper 50 feet or so of rock. In the process of reviewing
the application, DEQ prepared an Environmental Assessment (EA) under the Montana
Environmental Policy Act (MEPA). After completing its Final EA, DEQ approved the
permit.
¶7 Glacier Stone accesses the lower quarry from the west. There, a dirt road climbs
from Pleasant Valley Road about a mile and a half up to the northeast corner of the Jarvis
property. The road is described in a reciprocal easement agreement executed by Jarvis and
the neighboring property owner, Trudeau, in 2007. The agreement provided Jarvis (and
successors) unrestricted access to his property via the road. It also provided Trudeau (and
successors) unrestricted use of another road cutting south through part of Jarvis’s property
to reach a higher-elevation part of the neighboring parcel.
4 ¶8 Henry and Diane Belk live in Marion and oppose Glacier Stone’s operation. They
submitted comments to DEQ regarding its MEPA analysis of the mine permit proposal,
detailing their concerns. They raised issues regarding impacts to air, water, and wildlife,
and they questioned the adequacy of the reclamation plans and Glacier Stone’s likelihood
of compliance. The Belks also stressed that a fully permitted quarry would affect life on
the lake, deteriorating the view and interrupting the peace and quiet.
¶9 In 2013, the Belks bought a parcel of land bordering the quarry property to the
northeast. Then, as Glacier Stone’s permit process was underway in 2017 and 2018, they
acquired the rest of the parcels surrounding Jarvis’s. The access easement by which Glacier
Stone’s vehicles reach the lower quarry now transects one of the Belk properties. In their
comments on the EA, the Belks called on DEQ to conduct a fuller analysis of how the
proposal would impact their property rights. The Belks described the easement they now
owned—across part of Jarvis’s property in the reciprocal agreement—as one that cut
“through the middle of the mine.” They complained that Glacier Stone was blocking them
access to use their easement.
¶10 In its response to the Belks’ comments, DEQ noted that it had no authority to
adjudicate a private property dispute about enforcing an easement. Then, DEQ
acknowledged that standards in the MMRA require it to ensure that the reclamation plan
under a permit would protect public safety. DEQ thus reviewed the reciprocal easement
agreement to consider whether it gave the Belks access within the mine site, which could
raise safety concerns. The 2007 agreement included a map depicting the road to Jarvis’s
5 property and the road to the upper part of Trudeau’s (now the Belks’) land to the south.
DEQ concluded that this second road did not in fact go through the mine site.
¶11 The Belks also cited a provision of MEPA, § 75-1-201(1)(b)(iv)(D), MCA, which
requires DEQ to consider in its assessment “any regulatory impacts on private property
rights.” The Belks commented that DEQ’s EA for the Glacier Stone permit failed to
account for impacts to their property rights. DEQ responded by saying it read this
provision as requiring it to consider effects on the regulated property rights, i.e., those of
the applicant. Because it was not regulating use of the Belks’ or any other neighbors’
properties, DEQ said it did not need to do any further assessment under that provision.
¶12 After DEQ approved Glacier Stone’s permit, the Belks filed a lawsuit in District
Court in Flathead County. They alleged that DEQ had violated MEPA, the MMRA, and
the Montana Constitution. The District Court consolidated the Belks’ case with a lawsuit
from two other neighbors who also challenged DEQ’s decision. DEQ filed its
administrative record in District Court, and the Belks and the other plaintiffs subsequently
filed a motion to supplement that record with additional materials. They wanted the record
to include documents covering Glacier Stone’s history of SMES noncompliance, such as
the violation letters DEQ sent that prompted the permit application.
¶13 DEQ opposed the motion to supplement the record. DEQ argued that the Final EA
in the record it filed adequately included the facts of the violation leading to the proposal,
and DEQ noted that its MEPA and MMRA tasks were focused only on assessing the
proposed action, foreclosing decision-making based on past violations or speculation about
future violations. The District Court denied the Belks’ motion.
6 ¶14 The parties each filed summary judgment motions, and the District Court held a
hearing in October 2020. In an order issued December 4, 2020, the District Court granted
summary judgment to DEQ and Glacier Stone and dismissed the complaints. The Belks
now appeal. They argue that the District Court erred in granting summary judgment to
DEQ because the MEPA provision noted above should be construed to apply to their
property and because DEQ’s MEPA analysis was inadequate. They also argue that the
District Court should have granted their motion to supplement the record.
STANDARD OF REVIEW
¶15 We review summary judgment rulings de novo. Thornton v. Flathead Cty., 2009
MT 367, ¶ 13, 353 Mont. 252, 220 P.3d 395. Our review of agency practices under MEPA
considers whether the agency’s actions were unlawful, arbitrary, or capricious.
Bitterrooters for Planning, Inc. v. Mont. Dep’t of Envtl. Quality, 2017 MT 222, ¶ 15, 388
Mont. 453, 401 P.3d 712. An agency decision is unlawful if it does not comply with
governing laws and administrative rules. North Fork Preservation Ass’n v. Dep’t of State
Lands, 238 Mont. 451, 464, 778 P.2d 862, 870 (1989). We give “respectful consideration”
to an agency’s statutory interpretation but are not bound to defer to it. Mont. Power Co. v.
Mont. Public Serv. Comm’n, 2001 MT 102, ¶ 25, 305 Mont. 260, 26 P.3d 91. An agency
decision is arbitrary and capricious if it was clearly erroneous, was made without
consideration of relevant factors, or was “unreasonable or seemingly unmotivated based
on the existing record.” Montana Wildlife Fed. v. Mont. Bd. of Oil & Gas Conserv., 2012
MT 128, ¶ 25, 365 Mont. 232, 280 P.3d 877.
7 DISCUSSION
¶16 Issue One: Did the District Court err in its interpretation of a Montana Environmental Policy Act provision concerning regulatory impacts on private property rights?
¶17 MEPA is a broad-reaching law that requires state agencies in Montana to conduct
analyses of contemplated actions that may impact the environment—like approving a
mining permit. Bitterrooters for Planning, ¶¶ 17-18; §§ 75-1-102, -201(1), -220(5), MCA.
MEPA is modeled after the federal National Environmental Policy Act and imposes a
procedural onus on the state to take a “hard look” at the potential environmental
consequences of proposed measures. Ravalli Cty. Fish & Game Ass’n v. Mont. Dep’t of
State Lands, 273 Mont 371, 377, 903 P.2d 1362, 1366 (1995). The law provides a list of
things that its environmental reviews must include a “detailed statement on.” See
§ 75-1-201(1)(b)(iv), MCA. At the top of the list sit topics like environmental impacts,
unavoidable adverse effects, and available alternatives. Section
75-1-201(1)(b)(iv)(A)-(C), MCA. Then, the law requires the analysis to balance this
environment-focused detail with statements regarding things like resource commitments,
consumer fiscal impacts, benefits of a proposal, and “regulatory impacts on private
property rights.” Section 75-1-201(1)(b)(iv)(D)-(H), MCA.
¶18 That last topic, “regulatory impacts on private property rights,” is required by
§ 75-1-201(1)(b)(iv)(D), MCA.2 An agency action like DEQ’s decision to approve Glacier
2 The parties have not cited nor have we found any existing caselaw interpreting this specific provision of the Montana Environmental Policy Act, and thus we consider this to be a case of first impression on the matter. 8 Stone’s mining permit will certainly have a regulatory impact on the property that Glacier
Stone leases from Jarvis because the conditions of the permit constrain the scope of the
mining activity and come with required reclamation and other mitigation measures. In its
Final EA, DEQ addressed this topic and stated that “the permit conditions are reasonably
necessary to ensure compliance [with the MMRA] . . . or have been agreed to by the
applicant.”
¶19 In their comments to DEQ about the EA, the Belks complained that this analysis of
regulatory impacts was insufficient. The Belks argued that DEQ should also have
addressed how the permit approval would impact their property rights, not just those of
Glacier Stone and Jarvis. According to the Belks, there are two reasons to extend the
property regulation analysis: first, because their property and Glacier Stone’s are
“intertwined”; and second, because the broad design of MEPA should warrant reaching
into such indirect effects on neighboring property.
¶20 The Belks’ first argument relies on an overstatement of their property interests and
thus falls short. In order to have property rights that are regulated and thus subject to this
part of MEPA’s required analysis, something about DEQ’s considered action would need
to involve regulatory control or constraints on Belk property. The Belks argued in their
comments on the EA, in District Court, and in their briefing before this Court that they own
an access easement that goes through the mine site. Thus, they say, DEQ’s decision has a
direct regulatory impact on their property rights by affecting this access. However, in
responding to their comment, DEQ noted that it reviewed the easement documents, which
were executed by Jarvis and a prior landowner, and did not believe the access overlapped
9 the quarry. The Belks have continued to state—without further detail or explanation—that
their easement does cross the mine, but they offer no evidence to refute DEQ’s analysis
and response. Instead, the Belks shift to their second argument, that assessment of
“regulation of private property rights” should extend to neighboring properties, not just
those that are the subject of the regulation.
¶21 The problem with the Belks’ second argument is that it conflates regulatory impacts
on private property rights with environmental impacts. As DEQ points out, the clause
requiring it to assess regulation on private property rights is clearly tied to the Legislature’s
statement of purpose in § 75-1-102(2), MCA—that MEPA should, in addition to promoting
environmental welfare, help avoid “undue government regulation” on the use of private
property. And as noted above, in the context of DEQ’s permitting decision here, there is
no governmental regulation under consideration that would apply to the Belks’ use of their
property.
¶22 The Belks point instead to MEPA’s environmentally focused purposes, and they
argue that viewed in light of these aims,3 the private property clause should be construed
to concern any impacts on neighboring property. However, when the Belks describe these
impacts, they cite things like traffic, dust, and sediment in storm water. These are clearly
environmental impacts, already addressed in detail in other sections of the EA that already
3 See § 75-1-102, MCA (“The Legislature, mindful of its constitutional obligations [toward the environment], has enacted the Montana Environmental Policy Act . . . to declare a state policy that will encourage productive and enjoyable harmony between humans and their environment . . . to promote efforts that will prevent, mitigate, or eliminate damage to the environment and biosphere . . . .”). 10 consider areas surrounding the permit site. For example, if DEQ reviews a plan that
involves wastewater entering a stream that runs to neighboring properties, analysis of these
effects is clearly required by § 75-1-201(1)(b)(iv)(A), MCA (environmental impacts), and
DEQ’s implementing regulations at Admin. R. M. 17.4.608(1)(a) (“severity, duration,
geographic extent”) and 17.4.609(3)(d)-(e) (“cumulative and secondary impacts”).
¶23 The Belks do not explain why the section on property rights regulation needs to
re-hash these concerns; instead, they simply recast these environmental concerns as
property-rights-related in the hopes that their status as the neighboring landowner on all
Glacier Stone’s borders will afford them special status in the analysis of the permit
application. This argument misconstrues the plain and unambiguous language in
§ 75-1-201(1)(b)(iv)(D), MCA, which clearly addresses regulatory impacts on private
property rights, i.e., those of the regulated property or the applicant. To read the clause as
the Belks do, as another provision concerned with downstream environmental effects on
neighboring properties, would be to ignore the “regulatory” qualifier and make it redundant
with the preceding requirements and therefore superfluous. “We are required to avoid any
statutory interpretation that renders any sections of the statute superfluous and does not
give effect to all of the words used.” State v. Berger, 259 Mont. 364, 367, 856 P.2d 552,
554 (1993). Thus, the District Court did not err in its conclusion that DEQ’s assessment
was sufficient under § 75-1-201(1)(b)(iv)(D), MCA.
11 ¶24 Issue Two: Did the District Court err in granting summary judgment to DEQ on its compliance with the Montana Environmental Policy Act?
¶25 The Belks also contend that DEQ’s environmental analysis was insufficient under
MEPA. Below, they raised arguments about such concerns as water and air quality, which
the District Court addressed in detail. On appeal, the Belks focus solely on aesthetic and
recreational environmental impacts—how the quarry will affect the quietude and nature of
life on the lake—and they argue that the District Court erred in finding DEQ’s analysis
compliant with MEPA.
¶26 Our concern when reviewing an assessment under MEPA is whether the agency
made a reasoned decision after carrying out its MEPA responsibilities in full. Clark Fork
Coalition v. Mont. Dep’t of Envtl. Quality, 2008 MT 407, ¶ 21, 347 Mont. 197, 197 P.3d
482. “Implicit in the requirement that an agency take a hard look at the environmental
consequences of its actions is the obligation to make an adequate compilation of relevant
information, to analyze it reasonably, and to consider all pertinent data.” Clark Fork
Coalition, ¶ 47. Among the environmental consequences that DEQ must address under
MEPA are aesthetic and recreational impacts. See Admin. R. M. 17.4.609(d) (2021).
¶27 DEQ’s statements about these topics in the EA included noting that the upper 50
feet of rock would eventually be removed from the ridgetop and that the disturbance on the
mine site would be visible from the lake during the life of the permit as well as afterwards
as vegetation is slowly reestablished. DEQ determined that “the visual disturbance would
not dominate the landscape,” especially given the presence of larger hills surrounding the
quarry. DEQ discussed noise impacts from the mine and noted that they would be “greater
12 than typical operations, but very limited in frequency. . . . The noise levels in the area
would be essentially the same as the noise levels that have existed with ongoing
operations[.]” Regarding recreation, DEQ stated that some activity and noise would be
apparent from the lake but that “secondary impacts to access and quality of recreational
activities would be minimal due to the limited scope of the project and the distance” from
the lake. In response to comments on the EA, DEQ discussed in greater detail the quantity
of noise from Glacier Stone’s periodic potential blasting of rock.
¶28 The Belks argue that all this discussion does not qualify as a “hard look” at the
aesthetic and recreational impacts of the permit approval. They contend that the factors
described above constitute significant impacts that warranted fuller, more quantitative
analysis, and that DEQ acted arbitrarily and capriciously in limiting its analysis to these
passages in an EA. The Belks argue that DEQ failed to expand on the extent to which
residents and visitors would be impacted, and they argue that DEQ should have included
more data on things like the recreation economy and property values.
¶29 However, the Belks point to no authority for the notion that such impacts must be
assessed in quantitative economic terms. In fact, while doing so may be helpful in some
circumstances, DEQ’s MEPA-implementing regulations contain no such directive. The
agency’s rules detailing the requirements of an EA call for “narrative” descriptions of
evaluated impacts, and the subject of “aesthetics” is a subcomponent of impacts on the
physical environment—not the recreation economy. Admin. R. M. 17.4.609(3)(d) (2021).
The rules also require assessments of impacts on human populations—including health,
agriculture, tax bases, and culture—but they do not require quantitative economic
13 forecasts. Admin. R. M. 17.4.609(3)(e) (2021). Discussion of “access to and quality of
recreational and wilderness activities” is a listed requirement, but the Belks do not explain
what DEQ was missing when it discussed how the visible and audible presence of the mine
might qualitatively affect recreation, views, and the like. The property value or recreation
forecasts the Belks seek might represent uncertain downstream economic effects, but they
would capture no greater information about the aesthetic and environmental impacts than
DEQ already considered when it detailed the extent of the quarry’s visual and aural
presence from the lake. The EA contained sections dedicated specifically to aesthetics, to
recreation, and to human health and safety, and these analyses combined with DEQ’s
responses to comments adequately covered the subjects.
¶30 The aim of DEQ’s assessment in an EA is to evaluate the individual and cumulative
impacts of a proposed action and determine their significance; if a proposal would have a
significant impact on the environment, then a full “Environmental Impact Statement,” with
even greater analysis than an EA, is required. Mont. Wildlife Fed’n, ¶ 44; Admin. R. M.
17.4.608 (2021). Here, DEQ determined in preparing its EA that Glacier Stone’s permit
approval would not have such a significant level of impact.
¶31 DEQ has promulgated rules establishing criteria for reaching such a decision under
MEPA. Among the factors that it must consider are “the severity, duration, geographic
extent, and frequency” of impacts. Admin. R. M. 17.4.608(1)(a) (2021). Thus, a relevant
question in reviewing DEQ’s approach here is to determine whether the agency complied
with its implementing regulations and whether the information it collected and discussed
was indeed sufficient to make its finding of no significant impact reasonable. Regarding
14 noise, recreation, and aesthetics, DEQ adequately considered each of the relevant factors
and made a reasonable determination. DEQ discussed the distance between the lake and
the permit area, how this distance would affect visibility and noise effects, the geographic
and temporal scope of the disturbance, the severity and frequency of noise from blasting,
the duration of the permit and the length of time required for reclamation, and other factors.
This constitutes an adequately robust investigation, acknowledgment, and discussion of
aesthetic impacts to justify DEQ’s conclusions. The Belks may perceive the significance
of the quarry differently, and they may take issue with the outcome DEQ reached, but
DEQ’s assessment process was procedurally sound and comported with MEPA’s
“hard-look” directive.
¶32 Issue Three: Did the District Court err in denying the Belks’ motion to supplement the record?
¶33 When a district court reviews an administrative agency decision, it must base its
review on “the record before the governing body at the time of its decision.” Heffernan v.
Missoula City Council, 2011 MT 91, ¶ 66, 360 Mont. 207, 255 P.3d 80. In certain
circumstances, a court may need to admit extra-record evidence, materials beyond those
considered by the agency, if it would make clear what the agency should have considered.
We have previously noted that without this evidence, it may be “impossible for the court
to determine whether the agency took into consideration all relevant factors.” Skyline
Sportsmen’s Assn. v. Bd. of Land Commrs., 286 Mont. 108, 113, 951 P.2d 29, 32 (1997)
(citing Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980).
15 ¶34 The administrative record that DEQ submitted to the District Court in this case
included files relating to Glacier Stone’s Metal Mine Reclamation Act (MMRA) permit
application and all the environmental documentation for the MEPA process. DEQ did not
include documents relating to the Small Miner Exclusion Statement (SMES) or its letters
to Glacier Stone about violating the SMES rules, which predated and prompted the permit
application. In the MEPA documents, DEQ did narratively describe the context of the
violation leading to the permit application.
¶35 The Belks moved for the District Court to supplement the record with the SMES
files and DEQ’s violation letters, and the District Court denied their motion. They appeal
that decision here, arguing that the absence of these files detailing Glacier Stone’s past
noncompliance taints the District Court’s review of DEQ’s decision-making.
¶36 The crux of this issue is the relevance of the SMES files to DEQ’s decision-making
under the MMRA and MEPA. As noted, the supplemental materials the Belks moved to
admit need either to have been considered by the agency in reaching its decisions or to
demonstrate what the agency should have considered but did not. The Belks argue that the
SMES materials are relevant because they speak to the likelihood Glacier Stone’s activity
will comport with its proposal—the likelihood it will fail to comply again. The Belks point
to the MMRA’s provisions on reclamation plans, which include considering “site-specific
conditions and circumstances.” Section 82-4-336(1), MCA. And they point to DEQ’s
rules for preparing EAs, which include assessing whether there is a “reasonable assurance”
predicted impacts will or will not occur and the “degree of uncertainty” present.
16 Admin. R. M. 17.4.608(1)(b), 17.4.609(2)(c) (2021). Given these factors, the Belks argue,
the SMES history must be relevant to DEQ’s MMRA and MEPA decisions.
¶37 However, DEQ points out that its posture under either law is forward-looking and
that therefore the detail from the SMES history cannot be relevant. The MMRA spells out
explicitly when the agency may deny a permit application, and noncompliance with an
SMES is not an applicable reason. See § 82-4-351, MCA. Past noncompliance may only
affect an applicant’s consideration in several specific circumstances that are not applicable
here, like the forfeiture of a reclamation bond. See § 82-4-360, MCA. Thus, not only were
the additional files not relevant to DEQ’s MMRA decision, but the agency was also not
even permitted to consider them in reaching its decision and instead had to evaluate the
application on its proposed terms.
¶38 Under MEPA, the situation is similar. DEQ’s task is to prepare an assessment of
the environmental and other impacts of a proposed action, not a past action. Thus, all its
information collection and analysis are directed at the consequences of the future permitted
activity. This directive does not include speculation about what would happen if the permit
was violated or the likelihood of violation. As DEQ points out, the administrative rules
cited by the Belks arise in the specific context of discerning the cause-and-effect
relationship between a proposed action and an environmental impact. Admin. R. M.
17.4.608(1)(b) (2021) (“the probability that the impact will occur if the proposed action
occurs; or conversely, reasonable assurance in keeping with the potential severity of an
impact that the impact will not occur”); Admin. R. M. 17.4.609(2)(c) (2021) (“the degree
of uncertainty that the proposed action will have a significant impact”) (emphasis added).
17 Additionally, other parts of DEQ’s MEPA rules direct it to consider enforceable mitigation
measures and the potential impacts that would result without them. Admin. R. M.
17.4.609(2)(d), (3)(g) (2021). This process sufficiently covers analysis of the harms that
might follow noncompliance, and the SMES paperwork detailing the procedural history
would not be relevant to these considerations.
¶39 Furthermore, the SMES noncompliance that the Belks lament was absent from the
District Court’s analysis was in fact well-known and established the predicate posture of
DEQ’s entire process. The administrative record that DEQ submitted made clear that
SMES noncompliance led to the permit application in the first place, and it was obvious
that this underlying context was not being surreptitiously ignored. The District Court did
not err in denying the Belks’ motion to supplement the record.
CONCLUSION
¶40 We affirm both the District Court’s May 1, 2020 order denying the Belks’ motion
to supplement the record and its December 4, 2020 order granting summary judgment to
DEQ.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ DIRK M. SANDEFUR /S/ JIM RICE