CIZ claims first court win with judge’s ruling

By: 
Mikaela Koski
Thursday, August 9, 2018

The county has lost its first legal clash in the lawsuit brought by the Beartooth Front Coalition.

Twenty-second Judicial District Court Judge Blair Jones has issued an order denying the county’s motion for summary judgement in the Citizen Initiated Zone (CIZ) petition lawsuit.

Monday, Jones officially ordered what he had said at the court hearing a week and a half prior – the court will not rule about the legality of regulations that have not yet been created or adopted.

At the July 26 hearing for the county’s motion for summary judgement, the county’s attorney Bethany Gross, of the Budd-Falen law firm out of Cheyenne, Wyo., argued that the CIZ petition submitted by the Beartooth Front Coalition (BFC) seeks to create regulations that would be pre-empted by state law, and thus cannot be considered. The county’s motion relied heavily on proposed regulations included in the text of the petition.

BFC lawyer David K. Wilson, out of Helena, argued that the proposed regulations have not yet been adopted, and their adoption would be contingent upon specific outcomes of several future events. Due to the fact that all regulations are hypothetical at this point, Wilson said the county’s motion based on preemption was premature. In his order, Jones said he agreed with Wilson.

“Stated simply, because the County failed to follow the statutory procedure in creating or rejecting a proposed planning and zoning district as outlined in 76-2-101, MCA, et seq., it is premature to consider whether hypothetical regulations adopted subsequent to the creation of a planning and zoning district are preempted by state law,” Judge Jones wrote in his ruling.

He also noted in the order that to grant the summary judgement based on the pre-emption theory, he would have to issue an advisory opinion, which he declines to do.

The order did not discuss whether failing to follow statutory procedure in the case of the CIZ petition was a lawful action by the county. That issue is to be raised in a motion for summary judgement from the BFC, expected to be filed in the coming weeks.

BACKGROUND

The Beartooth Front group worked for several years gathering signatures on a petition to create a CIZ in the southern part of Stillwater County that would regulate oil and gas activities in the area. The petition was submitted in February 2017.

In January 2018, the CIZ petition was denied by the county with the reasoning that the petition did not contain the signatures of the required 60 percent of “affected real property owners.” While 60 percent of affected landowners had signed the petition, the county argued that when including mineral rights owners in the category of “real property owners,” the 60 percent threshold was not met by the petitioners.

BFC filed the lawsuit against the county at the end of February, arguing that mineral rights owners should not be included when considering the petition’s percentage of “affected real property owners.”

At last month’s hearing, Jones noted that the issue of whether mineral rights owners are real property owners is an important decision the court will have to make.

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