By Bella Butler MANAGING EDITOR
HELENA – The Montana Supreme Court yesterday effectively placed back on its trajectory a ballot initiative intended to provide stringent protections to sections of the Gallatin and Madison rivers. The court brought the measure one step closer to being placed on the November ballot by reversing the Montana attorney general’s conclusion that the initiative was legally insufficient.
Soon after Attorney General Austin Knudsen issued a memo on Jan. 28 finding Ballot Initiative 24 legally insufficient, the initiative’s petitioners, Cottonwood Environmental Law Center, Montana Rivers, John Meyer and Gallatin Wildlife Association, asked the state Supreme Court to review Knudsen’s legal finding. The court found Knudsen’s determination incorrect, allowing I-24 to continue pursuit of the November 2022 ballot.
I-24 would grant outstanding resource water, or ORW, designation—the greatest protection feasible under state law—to the section of the Madison River between Hebgen and Ennis lakes and the section of the Gallatin River between Yellowstone National Park’s boundary south of Big Sky and the Spanish Creek confluence.
ORW designation prohibits the Department of Environmental Quality from issuing permits for new or increased point-soure discharge that would result in a permanent change to water quality. I-24 petitioners included language in the initiative to prohibit new or increased point-source discharge that would result in a permanent or temporary change in water quality.
In his Jan. 28 memo, Knudsen found the initiative legally insufficient on the grounds that ORW designation of these river sections “could cause a regulatory taking” and “will likely cause significant material harm to one or more business interests in Montana.”
Indeed, dozens of comments sent to Knudsen during his review opposed I-24, many expressing concern for the designation’s impact to development.
Knudsen’s legal argument hinged upon a statement in the Montana Constitution that reads: “Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss.”
The attorney general referenced a previous finding by the Montana Board of Environmental review that said ORW designation would effectively prohibit development unless that development achieved “zero discharge” into the sections of river in question. Knudsen wrote in his memo that “zero discharge” would not be economically nor technically feasible.
Knudsen asserted that I-24 wasn’t legally substantive because it didn’t provide a mechanism to compensate property owners for what they might lose through the ORW designation. The court disagreed, arguing that these property owners could still pursue litigation to recover compensation.
“There is no constitutional need for I-24 itself to contain a mechanism for compensation because the mechanism already exists,” the court’s opinion says.
The court also issued an opinion on Knudsen’s argument that the petitioners didn’t file the issue with the Supreme court within the required 10 days on the legal sufficiency review. The court found that while Knudsen’s memo was issued on Friday, Jan. 28, it wasn’t provided to the petitioners until Monday, Jan. 31, and the 10-day window wouldn’t have been triggered until then.
Montana law also dictates that ballot initiative language be “title and impartial explanation of the proposed ballot issue in plain, easily understood language and may not be arguments or written so as to create prejudice for or against the issue,” according to Montana Code Annotated.
Ballot initiative petitioners work with the Legislative Services Division to craft language that meets those requirements. When Knudsen found I-24 legally deficient, he also revised the initiative’s language to clarify that a ballot initiative granting ORW designation bypasses the currently existing ORW review process, which includes local government consultation, review of social and economic impacts and an environmental impact statement. Knudsen said he changed this language because the original language was not sufficiently plain and easy to understand.
I-24’s petitioners argued to the court that this amendment made the language unclear and was intended to dissuade voters from approving the initiative.
The court ruled that Knudsen’s amendment was “confusing and convoluted” and instead provided its own language for the initiative that outlined the ORW designation area, stated that Montana could not issue discharge permits that resulted in adverse temporary or permanent change in water quality, and clarified that the initiative bypassed the current ORW review process.
In response to the court’s rulings, Montana Department of Justice Communications Director Kyler Nerison issued the following statement:
“The state Supreme Court agreed with the substantive points of the Attorney General’s legal review: this proposal is an attempt to bypass the normal review process and it would be a taking of private property without compensation to the owners – something that is blatantly unconstitutional.
“Instead of coming to this obvious conclusion, the Supreme Court justices engaged in legal gymnastics to align with radical environmentalists and maneuver toward an outcome that even two liberal Democrat governors rejected. This proposal is an attack on businesses and private property rights and the state Supreme Court’s decision to allow it to proceed will have dangerous implications in every corner of Montana.”
Gallatin Wildlife Association President Clint Nagel said he’s pleased with the Supreme Court’s rulings.
“I also think we, as citizens, as part of the public, have a right to petition our government,” he told EBS on March 16. “And that’s what this was about is taking that right and coming up with this petition on trying to get the waters of the Gallatin River and the Madison River designated as an outstanding resource water … And I think that people have a right to make a statement in that regard. And I don’t think the attorney general has the right to take that away from the people.”
I-24 can now continue the process of being approved for the ballot, which includes gathering signatures from 5 percent of the total number of qualified voters in Montana, including 5 percent of the voters in each of 34 legislative house districts.
