Revise injunction laws

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AN ACT REVISING INJUNCTION LAWS; PROVIDING A STANDARD FOR MANDATORY PRELIMINARY
INJUNCTION ORDERS THAT MIRRORS THE FEDERAL STANDARD; REORGANIZING EXISTING
STATUTORY LANGUAGE REGARDING INJUNCTIONS FOR IMPROVED READABILITY; CLARIFYING THE
NATURE OF A PROHIBITORY INJUNCTION; AMENDING SECTIONS 27-19-201 AND 75-1-201, MCA; AND
PROVIDING AN APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. When mandatory preliminary injunction order may be granted -- legislative intent.
(1) A mandatory preliminary injunction ordering a responsible party to take action may be granted when the
applicant establishes that:
(a) the law and facts clearly favor the applicant's positions;
(b) in the absence of an injunction extreme or very serious damage will result that is not capable of
remedy through compensation in damages or otherwise upon resolution of the case in the normal course;
(c) the balance of equities is in the applicant's favor; and
(d) the order is in the public interest.
(2) (a) When considering an application for a mandatory preliminary injunction a court may not use
a sliding scale test or the serious questions test.
(b) When conducting the preliminary injunction analysis, the court shall examine the four criteria in
subsection (1) independently.
Section 2. Interpersonal injunction order. (1) An interpersonal injunction order may be granted in
either of the following cases between persons, not including a person being sued in that person's official
capacity:
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(a) when it appears that the adverse party, while the action is pending, threatens or is about to
remove or to dispose of the adverse party's property with intent to defraud the applicant, in which case an
injunction order may be granted to restrain the removal or disposition; or
(b) when it appears that the applicant has applied for an order under the provisions of 40-4-121 or
an order of protection under Title 40, chapter 15.
(2) The applicant for an injunction provided for in this section bears the burden of demonstrating
the need for an injunction order.
Section 3. Section 27-19-201, MCA, is amended to read:
"27-19-201. When prohibitory preliminary injunction may be granted -- when injunction order
may be granted -- legislative intent. (1) A prohibitory preliminary injunction order or temporary restraining
order commanding a party to refrain from acting to preserve the status quo may be granted when the applicant
establishes that:
(a) the applicant is likely to succeed on the merits;
(b) the applicant is likely to suffer irreparable harm in the absence of preliminary relief;
(c) the balance of equities tips in the applicant's favor; and
(d) the order is in the public interest.
(2) An injunction order may be granted in either of the following cases between persons, not
including a person being sued in that person's official capacity:
(a) when it appears that the adverse party, while the action is pending, threatens or is about to
remove or to dispose of the adverse party's property with intent to defraud the applicant, in which case an
injunction order may be granted to restrain the removal or disposition; or
(b) when it appears that the applicant has applied for an order under the provisions of 40-4-121 or
an order of protection under Title 40, chapter 15.
(3) The applicant for an injunction provided for in this section bears the burden of demonstrating
the need for an injunction order.
(4)(2) It is the intent of the legislature that the language in subsection (1) mirror the federal
preliminary injunction standard, and that interpretation and application of subsection (1) closely follow United
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States supreme court case law."
Section 4. Section 75-1-201, MCA, is amended to read:
"75-1-201. General directions -- environmental impact statements. (1) The legislature authorizes
and directs that, to the fullest extent possible:
(a) the policies, regulations, and laws of the state must be interpreted and administered in
accordance with the policies set forth in parts 1 through 3;
(b) under this part, all agencies of the state, except the legislature and except as provided in
subsections (2) and (3), shall:
(i) use a systematic, interdisciplinary approach that will ensure:
(A) the integrated use of the natural and social sciences and the environmental design arts in
planning and in decisionmaking for a state-sponsored project that may have an impact on the Montana human
environment by projects in Montana; and
(B) that in any environmental review that is not subject to subsection (1)(b)(iv), when an agency
considers alternatives, the alternative analysis will be in compliance with the provisions of subsections
(1)(b)(iv)(C)(I) and (1)(b)(iv)(C)(II) and, if requested by the project sponsor or if determined by the agency to be
necessary, subsection (1)(b)(iv)(C)(III);
(ii) identify and develop methods and procedures that will ensure that presently unquantified
environmental amenities and values may be given appropriate consideration in decisionmaking for state-
sponsored projects, along with economic and technical considerations;
(iii) identify and develop methods and procedures that will ensure that state government actions
that may impact the human environment in Montana are evaluated for regulatory restrictions on private
property, as provided in subsection (1)(b)(iv)(D);
(iv) include in each recommendation or report on proposals for projects, programs, and other major
actions of state government significantly affecting the quality of the human environment in Montana a detailed
statement on:
(A) the environmental impact of the proposed action;
(B) any adverse effects on Montana's environment that cannot be avoided if the proposal is
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implemented;
(C) alternatives to the proposed action. An analysis of any alternative included in the environmental
review must comply with the following criteria:
(I) any alternative proposed must be reasonable, in that the alternative must be achievable under
current technology and the alternative must be economically feasible as determined solely by the economic
viability for similar projects having similar conditions and physical locations and determined without regard to
the economic strength of the specific project sponsor;
(II) the agency proposing the alternative shall consult with the project sponsor regarding any
proposed alternative, and the agency shall give due weight and consideration to the project sponsor's
comments regarding the proposed alternative;
(III) the agency shall complete a meaningful no-action alternative analysis. The no-action
alternative analysis must include the projected beneficial and adverse environmental, social, and economic
impact of the project's noncompletion.
(D) any regulatory impacts on private property rights, including whether alternatives that reduce,
minimize, or eliminate the regulation of private property rights have been analyzed. The analysis in this
subsection (1)(b)(iv)(D) need not be prepared if the proposed action does not involve the regulation of private
property.
(E) the relationship between local short-term uses of the Montana human environment and the
maintenance and enhancement of long-term productivity;
(F) any irreversible and irretrievable commitments of resources that would be involved in the
proposed action if it is implemented;
(G) the customer fiscal impact analysis, if required by 69-2-216; and
(H) the details of the beneficial aspects of the proposed project, both short-term and long-term, and
the economic advantages and disadvantages of the proposal;
(v) in accordance with the criteria set forth in subsection (1)(b)(iv)(C), study, develop, and describe
appropriate alternatives to recommend courses of action in any proposal that involves unresolved conflicts
concerning alternative uses of available resources. If the alternatives analysis is conducted for a project that is
not a state-sponsored project and alternatives are recommended, the project sponsor may volunteer to
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implement the alternative. Neither the alternatives analysis nor the resulting recommendations bind the project
sponsor to take a recommended course of action, but the project sponsor may agree pursuant to subsection
(4)(b) to a specific course of action.
(vi) recognize the potential long-range character of environmental impacts in Montana and, when
consistent with the policies of the state, lend appropriate support to initiatives, resolutions, and programs
designed to maximize cooperation in anticipating and preventing a decline in the quality of Montana's
environment;
(vii) make available to counties, municipalities, institutions, and individuals advice and information
useful in restoring, maintaining, and enhancing the quality of Montana's environment;
(viii) initiate and use ecological information in the planning and development of resource-oriented
projects; and
(ix) assist the legislature and the environmental quality council established by 5-16-101;
(c) prior to making any detailed statement as provided in subsection (1)(b)(iv), the responsible
state official shall consult with and obtain the comments of any state agency that has jurisdiction by law or
special expertise with respect to any environmental impact involved in Montana and with any Montana local
government, as defined in 7-12-1103, that may be directly impacted by the project. The responsible state
official shall also consult with and obtain comments from any state agency in Montana with respect to any
regulation of private property involved. Copies of the statement and the comments and views of the appropriate
state, federal, and local agencies that are authorized to develop and enforce environmental standards must be
made available to the governor, the environmental quality council, and the public and must accompany the
proposal through the existing agency review processes.
(d) a transfer of an ownership interest in a lease, permit, license, certificate, or other entitlement for
use or permission to act by an agency, either singly or in combination with other state agencies, does not
trigger review under subsection (1)(b)(iv) if there is not a material change in terms or conditions of the
entitlement or unless otherwise provided by law.
(2) (a) Except as provided in subsection (2)(b), an environmental review conducted pursuant to
subsection (1) may not include an evaluation of greenhouse gas emissions and corresponding impacts to the
climate in the state or beyond the state's borders.
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(b) An environmental review conducted pursuant to subsection (1) may include an evaluation if:
(i) conducted jointly by a state agency and a federal agency to the extent the review is required by
the federal agency; or
(ii) the United States congress amends the federal Clean Air Act to include carbon dioxide
emissions as a regulated pollutant.
(3) The department of public service regulation, in the exercise of its regulatory authority over rates
and charges of railroads, motor carriers, and public utilities, is exempt from the provisions of parts 1 through 3.
(4) (a) The agency may not withhold, deny, or impose conditions on any permit or other authority
to act based on parts 1 through 3 of this chapter.
(b) Nothing in this subsection (4) prevents a project sponsor and an agency from mutually
developing measures that may, at the request of a project sponsor, be incorporated into a permit or other
authority to act.
(c) Parts 1 through 3 of this chapter do not confer authority to an agency that is a project sponsor
to modify a proposed project or action.
(5) (a) (i) A challenge to an agency's environmental review under this part may only be brought
against a final agency action decision and may only be brought in district court or in federal court, whichever is
appropriate. A challenge may only be brought by a person who submits formal comments on the agency's
environmental review prior to the agency's final decision, and the challenge must be limited to those issues
addressed in those comments.
(ii) Any action or proceeding challenging a final agency action alleging failure to comply with or
inadequate compliance with a requirement under this part must be brought within 60 days of the action that is
the subject of the challenge.
(iii) For an action taken by the board of land commissioners or the department of natural resources
and conservation under Title 77, "final agency action" means the date that the board of land commissioners or
the department of natural resources and conservation issues a final environmental review document under this
part or the date that the board approves the action that is subject to this part, whichever is later.
(b) Any action or proceeding under subsection (5)(a)(ii) must take precedence over other cases or
matters in the district court unless otherwise provided by law.
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(c) Any judicial action or proceeding brought in district court under subsection (5)(a) involving an
equine slaughter or processing facility must comply with 81-9-240 and 81-9-241.
(6) (a) (i) In an action alleging noncompliance or inadequate compliance with a requirement of
parts 1 through 3, including a challenge to an agency's decision that an environmental review is not required or
a claim that the environmental review is inadequate, the agency shall compile and submit to the court the
certified record of its decision at issue. The agency, prior to submitting the certified record to the court, shall
assess and collect from the person challenging the decision a fee to pay for actual costs to compile and submit
the certified record. Except as provided in subsection (6)(b), the person challenging the decision has the burden
of proving the claim by clear and convincing evidence contained in the record.
(ii) An action alleging noncompliance or inadequate compliance with a requirement of parts 1
through 3, including a challenge to an agency's decision that an environmental review is not required or a claim
that the environmental review is inadequate based in whole or in part upon greenhouse gas emissions and
impacts to the climate in Montana or beyond Montana's borders, cannot vacate, void, or delay a lease, permit,
license, certificate, authorization, or other entitlement or authority unless the review is required by a federal
agency or the United States congress amends the federal Clean Air Act to include carbon dioxide as a
regulated pollutant.
(iii) Except as provided in subsection (6)(b), in a challenge to the agency's decision or the
adequacy of an environmental review, a court may not consider any information, including but not limited to an
issue, comment, argument, proposed alternative, analysis, or evidence, that was not first presented to the
agency for the agency's consideration prior to the agency's decision or within the time allowed for comments to
be submitted.
(iv) Except as provided in subsection (6)(b), the court shall confine its review to the record certified
by the agency. The court shall affirm the agency's decision or the environmental review unless the court
specifically finds that the agency's decision was arbitrary and capricious.
(v) A customer fiscal impact analysis pursuant to 69-2-216 or an allegation that the customer fiscal
impact analysis is inadequate may not be used as the basis of an action challenging or seeking review of the
agency's decision.
(b) (i) When a party challenging the decision or the adequacy of the environmental review or
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decision presents information not in the record certified by the agency, the challenging party shall certify under
oath in an affidavit that the information is new, material, and significant evidence that was not publicly available
before the agency's decision and that is relevant to the decision or the adequacy of the agency's environmental
review.
(ii) If upon reviewing the affidavit the court finds that the proffered information is new, material, and
significant evidence that was not publicly available before the agency's decision and that is relevant to the
decision or to the adequacy of the agency's environmental review, the court shall remand the new evidence to
the agency for the agency's consideration and an opportunity to modify its decision or environmental review
before the court considers the evidence as a part of the administrative record under review.
(iii) If the court finds that the information in the affidavit does not meet the requirements of
subsection (6)(b)(i), the court may not remand the matter to the agency or consider the proffered information in
making its decision.
(c) (i) The remedies provided in this section for successful challenges to a decision of the agency
or the adequacy of the statement are exclusive.
(ii) Notwithstanding the provisions of 27-19-201, [section 1], and 27-19-314, a court having
considered the pleadings of parties and intervenors opposing a request for a temporary restraining order,
preliminary injunction, permanent injunction, or other equitable relief may not enjoin the issuance or
effectiveness of a license or permit or a part of a license or permit issued pursuant to Title 75 or Title 82 unless
the court specifically finds that the party requesting the relief is more likely than not to prevail on the merits of its
complaint given the uncontroverted facts in the record and applicable law and, in the absence of a temporary
restraining order, a preliminary injunction, a permanent injunction, or other equitable relief, that the:
(A) party requesting the relief will suffer irreparable harm in the absence of the relief;
(B) issuance of the relief is in the public interest. In determining whether the grant of the relief is in
the public interest, a court:
(I) may not consider the legal nature or character of any party; and
(II) shall consider the implications of the relief on the local and state economy and make written
findings with respect to both.
(C) relief is as narrowly tailored as the facts allow to address both the alleged noncompliance and
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the irreparable harm the party asking for the relief will suffer. In tailoring the relief, the court shall ensure, to the
extent possible, that the project or as much of the project as possible can go forward while also providing the
relief to which the applicant has been determined to be entitled.
(d) The court may issue a temporary restraining order, preliminary injunction, permanent
injunction, or other injunctive relief only if the party seeking the relief provides a written undertaking to the court
in an amount reasonably calculated by the court as adequate to pay the costs and damages sustained by any
party that may be found to have been wrongfully enjoined or restrained by a court through a subsequent judicial
decision in the case, including but not limited to lost wages of employees and lost project revenues for 1 year. If
the party seeking an injunction or a temporary restraining order objects to the amount of the written undertaking
for any reason, including but not limited to its asserted inability to pay, that party shall file an affidavit with the
court that states the party's income, assets, and liabilities in order to facilitate the court's consideration of the
amount of the written undertaking that is required. The affidavit must be served on the party enjoined. If a
challenge for noncompliance or inadequate compliance with a requirement of parts 1 through 3 seeks to
vacate, void, or delay a lease, permit, license, certificate, or other entitlement or authority, the party shall, as an
initial matter, seek an injunction related to a lease, permit, license, certificate, or other entitlement or authority,
and an injunction may only be issued if the challenger:
(i) proves there is a likelihood of succeeding on the merits;
(ii) proves there is a violation of an established law or regulation on which the lease, permit,
license, certificate, or other entitlement or authority is based; and
(iii) subject to the demonstration of the inability to pay, posts the appropriate written undertaking.
(e) An individual or entity seeking a lease, permit, license, certificate, or other entitlement or
authority to act may intervene in a lawsuit in court challenging a decision or statement by a department or
agency of the state as a matter of right if the individual or entity has not been named as a defendant.
(f) Attorney fees or costs may not be awarded to the prevailing party in an action alleging
noncompliance or inadequate compliance with a requirement of parts 1 through 3.
(7) For purposes of judicial review, to the extent that the requirements of this section are
inconsistent with the provisions of the National Environmental Policy Act, the requirements of this section apply
to an environmental review or any severable portion of an environmental review within the state's jurisdiction
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that is being prepared by a state agency pursuant to this part in conjunction with a federal agency proceeding
pursuant to the National Environmental Policy Act.
(8) The director of the agency responsible for the determination or recommendation shall endorse
in writing any determination of significance made under subsection (1)(b)(iv) or any recommendation that a
determination of significance be made.
(9) A project sponsor may request a review of the significance determination or recommendation
made under subsection (8) by the appropriate board, if any. The appropriate board may, at its discretion, submit
an advisory recommendation to the agency regarding the issue. The period of time between the request for a
review and completion of a review under this subsection may not be included for the purposes of determining
compliance with the time limits established for environmental review in 75-1-208."
Section 5. Codification instruction. [Sections 1 through 2] are intended to be codified as an integral
part of Title 27, chapter 19, part 2, and the provisions of Title 27, chapter 19, part 2, apply to [sections 1 through
2].
Section 6. Applicability. [This act] applies to causes of action initiated on or after October 1, 2025.
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I hereby certify that the within bill,
HB 715, originated in the House.
___________________________________________
Chief Clerk of the House
___________________________________________
Speaker of the House
Signed this _______________________________day
of____________________________________, 2025.
___________________________________________
President of the Senate
Signed this _______________________________day
of____________________________________, 2025.
HOUSE BILL NO. 715
INTRODUCED BY B. MERCER
AN ACT REVISING INJUNCTION LAWS; PROVIDING A STANDARD FOR MANDATORY PRELIMINARY
INJUNCTION ORDERS THAT MIRRORS THE FEDERAL STANDARD; REORGANIZING EXISTING
STATUTORY LANGUAGE REGARDING INJUNCTIONS FOR IMPROVED READABILITY; CLARIFYING THE
NATURE OF A PROHIBITORY INJUNCTION; AMENDING SECTIONS 27-19-201 AND 75-1-201, MCA; AND
PROVIDING AN APPLICABILITY DATE.