Beartooth Front Coalition seeks summary judgement in case against the county

By: 
Mikaela Koski
Thursday, September 13, 2018

Following Stillwater County’s unsuccessful bid for summary judgement, the Beartooth Front petitioners have filed their own motion for summary judgement, urging District Judge Blair Jones to rule in their favor in the case dealing with the dismissal of their citizen-initiated zoning (CIZ) petition.

Filed in 22nd Judicial District Court at the end of August, the motion argues that the Montana law regarding CIZ zones, such as the zone the Beartooth Front group sought to create, does not include mineral rights owners as “real property owners.”

The county did not validate the Beartooth Front’s petition on the grounds that it did not contain the signatures of the required 60 percent of affected real property owners, using both surface and mineral rights owners in this determination.

PETITION PROCESS

In the motion, David K. Wilson, the lawyer out of Helena who is representing the Beartooth Front Coalition (the plaintiffs in this case), argues that throughout the almost four-year petition signature gathering process, the petitioners were never told that it would be necessary to obtain the signatures of mineral rights owners.

After initially submitting signatures in 2015, Stillwater County Clerk & Recorder Heidi Stadel provided the petitioners with an 11-paragraph list of signature verification procedures.

This list indicated that some of the signatures signed in a representative capacity did not meet the standards, and thus the petitioners had to gather them again, in the form the county accepted.

According to the new motion for summary judgement, there was no mention of mineral rights owners on this list of procedures.

The petition was resubmitted in February 2017, and in August 2017, Stillwater County Attorney Nancy Rohde sent a letter to Wilson, noting that while the petitioners did have 60 percent of surface owners, the question of the inclusion of mineral rights owners had surfaced. In January 2018, the petition was denied on the grounds that it did not meet the signature requirement because mineral rights owners were not included.

“Both defendants (the county commissioners and Stadel) have admitted that they did not calculate how many mineral estate owners needed to be counted to address the 60 percent threshold (as that is the responsibility of the petitioners),” according to the motion. “The County, thus, made no effort to determine the extent of (1) the mineral interests represented by the petition signers, and (2) the total universe of mineral interests in the proposed district.”

UNDERMINING STATE LAW

The motion argues that including mineral rights owners as real property owners would render the Montana law regarding CIZ petitions “effectively meaningless.”

Wilson writes that “the goal of the Court when interpreting a statute is to implement the objective the Legislature sought to achieve.”

He argues that all of the activities mentioned in the CIZ law, both those accepted for regulation and those that cannot be regulated, are surface activities.

Thus, the affected property owners mentioned in the law are surface owners.

COUNTING SIGNATURES

The motion also raises the question as to how the signatures of mineral rights owners would be counted. Many times land that may have one surface landowner has multiple subsurface mineral rights owners.

The following example was included in the court document: If one piece of land has the same surface and mineral rights owner, and another has one surface owner and 32 mineral rights owners, would the first piece of land have one vote while the second has 33 votes?

The Montana law regarding CIZ zones does not lay out a process for counting surface owners and mineral rights owners, and “there is a reason for that,” the motion argues. “The Legislature did not intend the 60 percent to include mineral estate holders because the method for counting multiple ownership interests in one parcel towards the 60 percent threshold would have to be spelled out in detail in the statute. It was not.”

EXPENSIVE AND NEARLY IMPOSSIBLE

While a listing of surface owners can be found within county records, the information regarding subsurface mineral rights owners is not a county record, leading to the plaintiffs’ argument that including mineral rights owners in the signature process is an “unreasonable barrier” for petitioners.

According to court documents, “the only way to obtain a list of mineral interest owners is to hire a certified minerals abstractor,” as some title companies, including Stillwater Abstract & Title Company in Columbus, do not provide lists of mineral rights owners.

“It costs approximately $3/per acre, or in this case between $288,000 and $340,000 for the Plaintiffs’ proposed 83,000-acre zone,” the motion reads.

If petitioners were to get a certified list of mineral rights owners, the question of how the county will verify signatures is then raised in the court document – would the county use the exact list the petitioners provide, or come up with its own? In either case, it could be argued that such a list is not objective (as complete county records would be), and so would not be up to the task of signature verification.

“The purpose of the statute is not served by forcing citizens to ‘hunt out’ all mineral rights holders at great personal expense, and the resulting near impossibility of accomplishing 60 percent does not serve the vital interests of public zoning,” the motion says.

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INTERPRETATIONS

According to the court document, the plaintiffs found more than 100 CIZ zones in Montana, none of which required mineral rights owners to reach the signature threshold. In the past 10 years, eight CIZ zones have been created using only surface owner signatures.

“Changing the interpretation now would run afoul of the purpose of the statute and potentially put the legality of over 100 citizen-initiated zones in jeopardy,” the motion argues.

WRIT OF MANDATE

If the motion for summary judgement is granted, the Beartooth Front Coalition is asking that the judge issue a writ of mandate, requiring Stadel to verify that the petition reached the necessary signature threshold.

By validating the petition, the commissioners would then be required to take action on the petition. Whether or not to adopt the petition and create the zone would still be a decision for the commissioners, based on whether or not the zone would be in the public interest or convenience.

BEARTOOTH FRONT ZONE

The zone the Beartooth Front petitioners seek to create covers an approximately 83,000-acre area in southern Stillwater County.

According to the motion, the petitioners are landowners within the district who seek “to protect the surface amenities within the proposed district from impacts associated with oil and gas development through the development of regulations (through the zone) that would reasonably regulate surface use.”

It goes on to say that “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.

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