MONTANA ENVIRONMENTAL INFORMATION CENTER and SIERRA CLUB, Petitioners, Plaintiffs, and Appellees, v. WESTMORELAND ROSEBUD MINING, LLC, f/k/a WESTERN ENERGY CO., NAT. RES. PARTNERS, L.P., INT’L UNION OF OPERATING ENGINEERS, LOCAL 400, and N. CHEYENNE COAL MINERS ASS’N, Respondents, Respondent-Intervenors, and Appellants, and MONTANA DEP’T OF ENVIRONMENTAL QUALITY, Respondent and Appellant, and MONTANA BD. OF ENVIRONMENTAL REVIEW, Respondent

MONTANA ENVIRONMENTAL INFORMATION CENTER and SIERRA CLUB, Petitioners, Plaintiffs, and Appellees, v. WESTMORELAND ROSEBUD MINING, LLC, f/k/a WESTERN ENERGY CO., NAT. RES. PARTNERS, L.P., INT’L UNION OF OPERATING ENGINEERS, LOCAL 400, and N. CHEYENNE COAL MINERS ASS’N, Respondents, Respondent-Intervenors, and Appellants, and MONTANA DEP’T OF ENVIRONMENTAL QUALITY, Respondent and Appellant, and MONTANA BD. OF ENVIRONMENTAL REVIEW, Respondent. Oral Argument is set for Monday, April 3, 2023, at 10:30 a.m. in the Strand Union Building, Ballroom A, on the campus of Montana State University, Bozeman, with an introduction to the oral argument beginning at 10:00 a.m. Live-streamed through the Court’s website at https://www.youtube.com/watch?v=kIgUU0pNqQE [youtube.com] The Montana Environmental Information Center and Sierra Club (Conservation Groups) challenged a permit the Montana Board of Environmental Review (BER) approved that allowed Westmoreland to expand the Rosebud Mine. The Sixteenth Judicial District Court, Rosebud County, reversed BER’s decision and remanded the matter to the Montana Department of Environmental Quality (DEQ). Westmoreland and DEQ appealed. Westmoreland argues that the District Court improperly adopted findings that conflicted with BER’s and incorrectly fashioned relief other than remanding the matter to BER. DEQ argues that the court erred in concluding that the Conservation Groups did not have the burden of proof and need not exhaust administrative remedies, incorrectly determined that DEQ was limited in the evidence and argument it could present to BER, and exceeded its authority by allowing the Conservation Groups to recover attorney fees against DEQ. The Montana Supreme Court has asked the parties to address three issues at oral argument: (1) Did the hearing officer err in limiting the issues and evidence the Conservation Groups could present in the contested case proceedings while allowing DEQ and Westmoreland to present evidence outside the administrative record on which DEQ based its permitting decision? (2) Did BER err in its allocation of the burden of proof? (3) Did the District Court err in reversing BER’s decision to uphold DEQ’s approval of the AM4 permit amendment upon BER’s finding that AM4 is designed to prevent material damage?