Petition issue pointing toward litigation
A years-long petition process has recently come to a turning point, with the most-likely next step being litigation against Stillwater County.
Here is a run-down of the petition, its timeline, and the arguments of both sides.
The petition proposes the creation of a Part I Citizen Initiated Zoning (CIZ) district encompassing 80,000 acres in southern Stillwater County, known as the “Beartooth Front District.”
The Beartooth Front District would be tasked with creating regulations to ensure “that coal bed methane activity and oil and gas activity be conducted in a responsible manner within the proposed district,” according to the petition.
The petition states it “seeks to maintain the rural residential and agricultural character of the proposed district,” and is in the public interest or convenience “because oil and gas activity, without local regulation, threatens substantial adverse impacts within the proposed district.” It goes on to list potential risks to various aspects of the area, including to the quality and quantity of surface and ground water, to the county roads and bridges, and to private property.
The district would be over-seen by a seven-member planning and zoning commission. As is outlined in Montana law, the members would include the three county commissioners, the clerk and recorder, an additional appointed county official, and two appointed residents of the district.
At an informational meeting between the Beartooth Front Group (BFG) that created the petition and the county from March 9, 2017, several BFG members explained the petition is in no way calling for a ban of oil and gas activity, but rather for regulations similar to those suggested by the American Petroleum Institute, the national trade association representing the country’s oil and natural gas industries.
These “rules of engagement” would ensure that both the land owners as well as incoming companies would have clear expectations when entering into an agreement dealing with gas or oil activity.
At the Jan. 30, 2018, commissioners’ agenda meeting, BFG member Bill Hand reiterated the fact that the BFG is seeking to assure good water quality, adequate facilities and county infrastructure are maintained, and physical impacts are kept to a minimum.
“Our goal with the Beartooth Front CIZ petition is to ensure southern Stillwater County’s unique quality of life and agricultural prosperity will be preserved and passed down to future generations,” he explained.
Several members of the BFG were also involved with the Good Neighbor Agreement with the Stillwater Mine, ensuring responsible environmental practices as the mine extracts resources.
THE PETITIONERS’ TIMELINE
BFG members have been involved with the petition process for nearly four years.
The following is the group’s timeline of the process that has been undertaken thus far:
• Fall 2014: Beartooth Front CIZ petition representatives spoke and attempted to speak with county personnel numerous times requesting guidance in regard to the collection of signatures for a CIZ district petition. The county failed to provide any concrete assistance.
•Nov. 10, 2015: The Beartooth Front petition was presented to the county commissioners with signatures of more than 50 percent of the proposed district land mass and more than 60 percent of land owners within the proposed district.
•March 22, 2016: Petitioners received a signature verification process from Stillwater County Clerk & Recorder Heidi Stadel.
•April 27, 2016: BFG members responded to the county regarding the verification process after a one month review, agreeing to obtain affidavits for over 100 individuals in a representative capacity, although having already acquired their signatures previously.
•July 8, 2016: County Attorney Nancy Rohde notified petitioners regarding the verification process and agreed to accept the method for acquiring affidavits as now required by the county.
•Feb. 9, 2017: The Beartooth Front CIZ petition was re-submitted to county commissioners with more than 60 percent of landowners’ signatures (more than 600 signatures) and more than 50 percent of the district’s land mass. It took seven months to obtain affidavits.
•Aug. 23, 2017: Rohde notified BFG members, through their attorney, that the petition was signed by 60.08 percent of affected landowners, enough to put the petition in front of the commissioners. However, the county attorney also indicated in the same conversation that she was going to request an Attorney General opinion about whether or not mineral interests should be considered toward the 60 percent threshold.
•Sept. 29, 2017: Rohde made a request to the Montana Attorney General regarding mineral interests.
•Dec. 2017: The Montana Attorney General declined to provide an opinion in regard to mineral interests. The county attorney decided to obtain a second opinion on the mineral rights question.
•Jan. 30, 2018: Stadel provided correspondence to the county commissioners that the petitioners have not reached the 60 percent threshold because mineral rights owners were not included. This is a direct reversal from the County Attorney’s statement in July 2017 that the petitioners achieved the 60% threshold after obtaining all the affidavits as required by the county after the initial submission of the petition in November 2015.
Due to the length of time the petition process has taken, as well as the petition having to be re-submitted, BFG members have become frustrated with the county.
At the Jan. 30 agenda meeting, Burt Williams, a Fishtail resident and BFG member, read comments to the commissioners relaying the frustration.
He accused the county of purposely refusing to help the BFG, consciously delaying petition processing, and placing obstructions to hinder the petitioners throughout the process.
Williams said the discussion to include mineral interest owners in the petition is placing the interests of non-resident mineral interest holders above the expressed wishes of landowners, as well as refusing to consider the best interests of the county.
“We disagree with the new interpretation by the county of the need for the signatures of owners of mineral estate and will take whatever action is necessary to counter the decision to reject the approximately 61-62 percent of land owners owning well over 60 percent of the land surface, both exceeding thresholds required by law, that have signed our petition,” Williams satated.
In reviewing the BFG timeline, Rohde disagreed with several sections.
On Aug. 23, 2017, she notified BFG’s lawyer that 60.08 percent of landowners had been verified. This was not formal acceptance of the petition on behalf of the county, Rohde explained.
The county attorney said she never told the BFG lawyer the petition was sufficient to move forward in the process, but rather it may be insufficient due to people with sub-surface property rights not being included in the process.
Rohde explained that the action taken on Jan. 30, then, was not a reversal of opinion, because she never told the BFG that the petition was accepted.
The request for the Attorney General’s opinion was sent by the county attorney on Sept. 29, 2017, and the county received a response on Nov. 28, 2017.
In Assistant Attorney General Patrick Risken’s letter to Rohde, he explained that “an Attorney General opinion may not be issued in ‘matters that will likely result in litigation irrespective of the outcome of a written opinion from the Attorney General’s Office.’ Because of the calls [received by the Attorney General’s Office] and the varying interests that they represent, it appears that litigation is likely regardless of any conclusion that we may reach.”
MINERAL RIGHTS ARE REAL PROPERTY RIGHTS
In Rohde’s request to the Attorney General, the county’s position is clearly articulated.
The Montana law regarding CIZ petitions requires the signatures of 60 percent of “affected real property owners.” The question, then, is whether mineral rights owners count as real property owners.
In the request, Rohde explains that “the situation exists where there are persons that are mineral right owners within the proposed district but are not surface real property owners within the proposed district.”
These mineral rights owners were not given the chance to support or oppose the petition, and they would not be given the opportunity to protest the petition if only surface property owners are included in the process, according to Rohde.
The request explains that the BFG lawyer has argued that no case law exists that requires mineral rights owners to be included in such petitions, meaning there is no precedence to include the mineral rights owners. In the past, mineral rights owners were not included in the creation of CIZ districts.
Rohde agrees that the matter has not yet been addressed in case law, and she says the legislature was unclear on its intent when affected real property owners were to be counted.
At the end of the request, Rohde simply states, “Mineral interests, including fractional mineral interests, are real property interests and should be considered for purposes of obtaining 60 percent of owners.”
BFG members made it clear at the end of January that they intend to file a lawsuit against the county due to its decision to include mineral interest holders, and thus deem the petition invalid.
The county will hold a public hearing on March 6, at 9:30 a.m., to receive comments from the public regarding the proposed guidelines for Part I CIZ zoning petitions.
The guidelines can be viewed at the courthouse. They include highly recommended initial steps, the required steps for collecting and validating signatures, as well as action steps for the county. Fees and definitions are also laid out, in addition to a sample petition form.
As written, the guidelines do require the inclusion of mineral rights owners as real property owners when necessary.
The commissioners will accept written comments before or at the public hearing.