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Montana AG: Proposed Ballot Initiative 24 legally insufficient

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Proposed measure sought stringent protections for Gallatin, Madison rivers


HELENA – A ballot initiative proposed by a Bozeman-based law center that would have granted sweeping protections to parts of the Gallatin and Madison rivers was found legally insufficient in a memorandum filed on Jan. 28 by the Montana attorney general. Several Big Sky organizations filed comments in opposition to the measure, expressing concern for how it would impact development opportunity in Big Sky.

Ballot Initiative 24, proposed by Cottonwood Environmental Law Center along with Montana Rivers and the Gallatin Wildlife Association, proposed outstanding resource water designation for the section of the Madison River between Hebgen and Ennis lakes and the section of the Gallatin River between the Yellowstone National Park boundary and the Spanish Creek confluence.

An ORW designation provides the greatest protection feasible under state law, according to Montana Code Annotated. State law enacted in 1995 afforded ORW designation to state surface waters located wholly within the boundaries of national parks and wilderness areas and established a process for other state waters to be granted the same designation if they qualify based on several criteria.

The petition for the ballot initiative was submitted to Montana Secretary of State Christi Jacobsen in December. Jacobsen then referred the initiative to Attorney General Austin Knudsen on Dec. 29 for legal sufficiency review. Knudsen issued a memorandum on Jan. 28 finding the proposed ballot measure legally insufficient on the grounds that it “could cause a regulatory taking” and “will likely cause significant material harm to one or more business interests in Montana.”

“The legal sufficiency review process is required under state law to determine if the petition complies with statutory and constitutional requirements governing submission of the proposed issue to the electors, the substantive legality of the proposed issue if approved by the voters, and whether the proposed issue constitutes an appropriation,” Emilee Cantrell, Attorney General Knudsen’s press secretary, wrote in an email to EBS. “In this instance, the proposed ballot measure does not meet the legal sufficiency requirements.”

During the legal review process, the attorney general’s office received dozens of comments on the proposed initiative, and according to Cantrell none of the comments from interested parties were in support of the measure. Several comments were sent from Big Sky organizations, notably including the Big Sky County and the Gallatin Canyon water and sewer districts, the Big Sky Community Housing Trust, and the Big Sky Chamber of Commerce. Others in opposition included the Madison County Commission, Gallatin County Commissioner Joe Skinner, the Bozeman Chamber of Commerce and the towns of Manhattan and West Yellowstone, among others.

Brad Niva, CEO of the Big Sky Chamber of Commerce, said the proposed ballot measure spurred an emergency chamber board meeting as the organization worked to understand the impact that the measure would have on the business community in Big Sky.

Niva said there were two main considerations that led the chamber to submit an oppositional letter and to make a plea to its member businesses to do the same: potential negative impacts to the Big Sky business community and a limitation to the Montana Department of Environmental Quality’s authority.

“We know this community is growing,” Niva told EBS on Feb. 4. “We saw this as a threat to continued development in Big Sky as well as a huge economic impact to the businesses that are here and who work here and just had potential to just literally turn off anything that was happening here in Big Sky.” This includes, he said, development of local affordable housing.

The Big Sky Community Housing Trust echoed this concern in its letter to the attorney general.

“While our organization has tried several creative approaches to increase the availability of housing for local workers, it is imperative that we continue to pursue the building of additional dedicated workforce housing units to support our Big Sky resort community,” the housing trust’s letter stated. “Ballot Issue #24 will likely prevent this from happening.”

Knudsen agreed.

“An ORW designation will prohibit DEQ from issuing wastewater disposal permits in the affected areas which will sharply limit development,” Knudsen wrote in his Jan. 28 memo. 

The memo chronicled previous “unsuccessful efforts by the measure’s proponents to effectuate the changes they seek through the administrative and judicial process.” These efforts included a 2001 proposal to give ORW designation to the section of the Gallatin River, which Cottonwood renewed in 2018, along with a 2021 lawsuit filed against Montana DEQ by Ballot Initiative 24’s submitters that challenged the agency’s decision. The court upheld DEQ’s action in the 2021 lawsuit, according to the memo.

Montana law dictates that the DEQ may not allow a new or increased point-source discharge that would result in a permanent change in the water quality of an outstanding resource water. Proposed Ballot Initiative 24 would have amended that language to prohibit new or increased point-source discharge that would result in a permanent or temporary change in water quality.

In a previous assessment on the potential impacts of an ORW designation on the Gallatin, the Board of Environmental Review determined an ORW designation “effectively prohibits development unless development achieves ‘zero discharge,’ into the Gallatin River system,” according to the memo. The memo also stated that “zero discharge” is not economically or technically feasible.

The Montana Constitution dictates that “private property shall not be taken or damaged for public use without just compensation.” By depriving affected property owners of all productive or economically beneficial use of their land without compensation, Knudsen found the proposed measure legally insufficient. The ballot initiative will not be qualified for the 2022 general election ballot.

When contacted for comment, Cottonwood Executive Director John Meyer declined an interview with EBS.

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