Board of Natural Resources & Conservation v. Northern Plains Resource Council

601 P.2d 28, 183 Mont. 540, 1979 Mont. LEXIS 995

• Court: Montana Supreme Court
• Decided: September 17, 1979
• Docket: Nos. 14215, 14294
• Status: Published

Opinion

ORDER

Whereas on April 10, 1979 this Court issued an Opinion in the above-entitled cases, affirming the District Court’s opinion on Issues 5. 7, 8, 9, 10, 11 and 12, and reversing that court on Issues 1 and 2, noting that Issues 3, 4 and 6 had been rendered moot, and

Whereas, in said Opinion, we ordered the suspension of appellants/cross-respondents’ certificate of environmental compatibility and need pending a remand of the cases to the Board of Natural Resources for proceedings to cure certain procedural defects found by the District Court to have occurred during its hearings, and

Whereas, we ordered the Board of Natural Resources to:

(1) Make adequate findings of fact and conclusions of law with regard to:

(a) whether using Rosebud coal and not McKay coal represents minimum environmental impact, and the reasons therefor, and

(b) whether mine-mouth generation as opposed to load-centet generation represents minimum environmental impact and the réasons therefor, including considerations as to relative energy efficiency and the relative impact of electrical transmission versus coal haulage, as required by section 70-810( l)(c), R.C.M.1947, now section 75-20-30 l(2)(c) MCA;

(2) Make adequate findings of fact and conclusions of law with regard to:

(a) clearly designating a transmission line corridor,

(b) why the Board of Natural Resources prefers the chosen corridor to the alternative corridors, and

(c) what state and local legal requirements must be met, and whether in fact they have been met as required by section 70-810 (l)(f), R.C.M. 1947, now section 75-20-201 (2)(f) MCA; and

Whereas, in compliance with our directions, the Board of Natural Resources made and filed with this Court its “Additional Findings of Fact and Conclusions of Law” on June 6, 1979, and

Whereas, Northern Plains Resource Council and the Northern Cheyenne Tribe, Inc., objected to said “Additional Findings of Fact and Conclusions of Law” and requested argument on same, and

Whereas, on June 15, 1979, this Court ordered briefs to be filed and set the matter for hearing on July 20, 1979, and

Whereas, a full hearing was held and the matter was submitted to this Court on that date, and

Whereas, this Court has carefully examined each of the objections made by the petitioners herein particularly directed to the amended findings of fact and conclusions of law made by the Board of Natural Resources and find them without merit. In each of the findings and conclusions returned to the Board for additional information to cure the procedural defects found, the Board has supplied the information to cure said procedural defects in its “Additional Findings of Fact and Conclusions of Law” filed June 6, 1979.

IT IS THEREFORE ORDERED that the suspension of the conditional certificate of environmental compatibility and public need is removed and that the decisions of the Board of Natural Resources and the Board of Health are affirmed.

MR. JUSTICE HARRISON, L. C. GULBRANDSON, sitting for MR. CHIEF JUSTICE HASWELL, and B. W. THOMAS, sitting for MR. JUSTICE DALY, District Judges, concur. MR. JUSTICE SHEA and H. WILLIAM CODER, sitting for MR. JUSTICE SHEEHY, District Judge, dissent.