Saturday, March 24, 2018

Citizen Initiated Zoning petition battle reaches court

The next step in the Citizen Initiated Zoning (CIZ) Petition saga has been taken.
On Monday, a lawsuit was filed in 22nd Judicial District Court against Stillwater County by the Beartooth Front Coalition (BFC).
BFC, a non-profit Montana corporation, was created by the group of people who earlier called themselves the “Beartooth Front Group.” The Beartooth Front Group invested time throughout the past four years into a petition process that was recently halted when the county deemed the petition invalid.
The petition seeks to create a CIZ district, known as the “Beartooth Front District” over approximately 83,000 acres in southern Stillwater County. The task of the board of the Beartooth Front District would be to create regulations for surface use 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.
As the lawsuit details, “The petitioners do not seek to ban oil and gas development; rather they merely seek to regulate it to lessen impacts on local ranchers, farmers, and other landowners.”
After a lengthy signature gathering process, punctuated by unclear requirements from the county, the final signature count was completed in August 2017, about three years after the process began in 2014.
Montana law requires 60 percent of “real property owners” to sign onto a CIZ petition. The Beartooth Front Group had the valid signatures of more than 60 percent of surface landowners; however, the petition was deemed invalid by Stillwater County Clerk & Recorder Heidi Stadel at the end of January due to the petition not including mineral rights owners.
Stillwater County Attorney Nancy Rhode advised Stadel to invalidate the petition on the grounds of mineral rights owners after the Montana Attorney General declined to issue an opinion on the issue at the end of November 2017.

According to court documents, BFC is challenging the “decision by the Stillwater County Board of County Commissioners, based on the determination of the Clerk and Recorder, that the petition to create the Stillwater County Beartooth Front Zoning District … did not satisfy the statutory requirements.”
BFC’s lawsuit filed on Monday argues that the group was never told, throughout the 3-year petition process, that the signatures of mineral rights owners would be necessary for the petition.
It goes on to allege that the county’s position that mineral rights owners must be included in the petition would make it “virtually impossible” for citizens to qualify a petition. This is due to the difficulty of determining a list of affected mineral rights owners.
“Finding mineral owners requires individual research for each property, tracing ownership back to the point at which mineral rights were severed. In many cases the County’s records are incomplete. It would be prohibitively expensive to have a mineral abstractor do the work,” according to the lawsuit.
Due to this difficulty in locating affected mineral rights owners, the legal documents claim that the county would not be able to cost-effectively certify a percentage of mineral rights owners, thus failing to meet the standard the county has set for petitioners.
In addition, the lawsuit says there is no guidance from Montana law or the county regarding the vote counting protocol.
The lawsuit requests that the court require Stadel to certify the petition through a writ of mandamus. As explained in the lawsuit, “Mandamus may be issued when a government body has violated clear duty to perform a duty resulting from office, and there is no other plain, speedy and adequate remedy at law.”
After the signatures of 60 percent of the surface rights owners were validated, the court documents claim that “the commissioners were under a clear legal duty to consider the zoning petition and determine whether it was in the public interest and convenience to adopt it.”
Also sought is a more broad decision that Montana law does not require mineral rights owners to be included towards the 60 percent signature threshold for CIZ petitions. This would then void the county’s decision regarding the Beartooth Front petition.
New guidelines for the county regarding CIZ petitions were introduced at the Jan. 16 Stillwater County Commissioners’ agenda meeting. These guidelines include the required steps for collecting and validating signatures. When describing the development of a list of affected property owners, the guidelines say that “mineral/mining right owners are required when subsurface rights may be at risk.”
The lawsuit attacks the new guidelines as they are based upon the determination that mineral rights owners must be included in the petition process. It asks that the court stop the commissioners from adopting the guidelines.
A public hearing for the proposed guidelines will be held next week on Tuesday, March 6.
As of press time, the county had yet to file a response to the BFC lawsuit.