PATRICK W. ELLIOTT, and DONALD D. MONDUL, Petitioners and Appellants,
POWELL COUNTY PLANNING BOARD, Respondent and Appellee.
Submitted on Briefs: April 18, 2018
District Court of the Third Judicial District, In and For the
County of Powell, Cause No. DV 17-22 Honorable Ray Dayton,
Appellants: Patrick W. Elliot, Self-Represented, Seeley Lake,
Montana Donald D. Mondul, Self-Represented, Seeley Lake,
Appellee: Lewis K. Smith, Powell County Attorney, Deer Lodge,
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
In February 2017, the Powell County Planning Board (the
"Board") approved a conditional use permit for a
sand and gravel pit in Powell County, adjacent to the Double
Arrow Ranch housing development ("Double Arrow")
located in Missoula County. Patrick Elliott and Donald
Mondul, Double Arrow residents, filed a petition in the Third
Judicial District Court to rescind and nullify the
Board's decision to issue the permit. Elliott and Mondul
argued that the statute on which the Board relied, §
76-2-209(3), MCA, is unconstitutional. The District Court
held a hearing and upheld the Board's decision. Elliott
and Mondul appeal the District Court's ruling. We affirm.
LHC, Inc. ("LHC"), on behalf of the Birdhead
Company, requested a conditional use permit to operate a sand
and gravel pit on land near Seeley Lake, adjacent to Double
Arrow. The proposed pit site is zoned by Powell County for
agricultural use. Double Arrow has no county zoning
designation. After public comment from many Double Arrow
residents and other citizens, the Board denied the
conditional use permit, stating in its written order that the
pit "is incompatible with the neighboring subdivision,
has an inadequate and unsafe access, and presents a threat of
groundwater contamination to the neighboring
LHC requested the Board to reconsider its denial of the
permit, arguing that § 76-2-209(3), MCA, prevents county
zoning regulations from prohibiting sand and gravel mining
operations in any area zoned other than residential. The
Board reconsidered its action and voted to approve the
permit. It attached conditions to the permit requiring that
all site activities comply with applicable federal and state
regulations, specifically "requirements associated with
the Opencut Mining Act."
In support of their petition to rescind and nullify the
permit, Elliott and Mondul argued to the District Court that
§ 76-2-209(3), MCA, is unconstitutional because it
violates the right to a clean and healthful environment
guaranteed under Article II, Section 3 and Article IX,
Section 1 of the Montana Constitution. They argued that the
statute forced the Board to automatically approve the permit
despite the operation's incompatibility with Double Arrow
and potential environmental threats. They also argued that
the Board's conditions may not be enough to ensure a
clean and healthful environment. The District Court
determined that Elliott and Mondul did not prove beyond a
reasonable doubt that the statute is unconstitutional as
interpreted (on its face) or as applied to the facts of their
This Court exercises plenary review of constitutional issues.
Mont. Cannabis Indus. Ass'n v. State, 2016 MT
44, ¶ 12, 382 Mont. 256, 368 P.3d 1131. The
constitutionality of a statute is presumed unless it
conflicts with the constitution beyond a reasonable doubt.
Mont. Cannabis Indus. Ass'n, ¶ 12. The
party challenging the constitutionality of a statute bears
the burden of proof. Mont. Cannabis Indus.
Ass'n, ¶ 12. We review for correctness a
district court's decisions on constitutional issues.
Big Sky Colony, Inc. v. Mont. Dep't of Labor
& Indus., 2012 MT 320, ¶ 16, 368 Mont. 66, 291
Analysis of a facial challenge differs from that of an
as-applied challenge. Mont. Cannabis Indus.
Ass'n, ¶ 14. A facial challenge requires proof
that no circumstances exist under which a statute would be
constitutional. Mont. Cannabis Indus. Ass'n,
¶ 14. An as-applied challenge examines the application
of a statute as applied in a given set of circumstances.
Citizens for a Better Flathead v. Bd. of Cnty.
Comm'rs, 2016 MT 325, ¶ 45, 385 Mont. 505, 386
Section 76-2-209, MCA, governs county zoning of natural
resources. Section 76-2-209(2), MCA, allows zoning
regulations to reasonably condition or prohibit sand and
gravel mining in areas that are zoned residential. Section
76-2-209(3), MCA, allows zoning regulations to reasonably
condition, but not to prohibit, sand and gravel mining in
areas that are not zoned residential.
Title 82, chapter 4, part 4, MCA, regulates opencut mining
such as the proposed sand and gravel operation in this ...