This post considers actions taken by Gallatin County a decade ago to stop coalbed methane drilling, and looks at whether that strategy might be adopted in Carbon County today as a way to keep the Environmental Corporation of America (ECA) from ruining the community.

About Montana Land Use Law
In 1963, the Montana legislature adopted Mont. Code Ann. § 76-2-209 as part of the Montana Zoning and Planning Act (MZPA). This law effectively prohibits local governments from

prevent(ing) the complete use, development or recovery of any mineral, forest, or agricultural resource.

This is similar to laws in other Western states. The owners of natural resource rights have a protected ability to get those resources out of the ground. However, they can be constrained to some extent by conditions imposed by local governments. Montana counties and municipalities have authority to adopt local ordinances and zoning regulations necessary to promote the general welfare of their citizens. In exceptional circumstances, counties can adopt interim zoning maps or regulations — including moratoriums on mineral developments — as emergency measures to promote public health, safety, morals and public welfare.

What happened in Gallatin County
Here is a timeline of events in Gallatin County that provided a unique solution to the unwanted intrusion of companies seeking to extract natural resources:

1999: JM Huber Corporation of New Jersey announced plans for the development of more than 100 coalbed methane (CBM) wells on 18,000 acres of leased land in the Bozeman Pass area. They proposed a network of pipelines and access roads to accompany the wells. Bozeman citizens and elected officials began to mobilize in the wake of the announcement.
August, 2001: The Montana Board of Oil and Gas Conservation (MBOGC) voted to grant Huber a permit to drill an initial test well, causing an outcry among the locals. The company then withdrew the permit, saying they wanted to reapply and address concerns of the local citizens.

The citizens group moved forward on a zoning plan designed to “prevent coalbed methane drilling in the (zoning) district.” Eventually Huber resubmitted a request for a conditional use permit, but the Bridger Canyon Zoning Commission voted 5-0 to deny the request. Huber filed suit, contending that the decision was a violation of federal and state law.
June, 2002: The Gallatin County Commission created an emergency zoning district which banned the development of CBM for two years.
December, 2005: The Gallatin County Commission adopted a permanent zoning district designed to regulate CBM development.

Regulations relating to CBM have subsequently been adopted by several different zoning districts in the County. All of these districts consider the development of CBM as a conditional use and have laid out a distinct set of criteria that must be met to proceed with drilling. Similar regulations have also been developed in Park County, which is adjacent to Gallatin along the Bozeman Pass.

The zoning district has developed a detailed Natural Resources Conditional Use Permitting (NRCUP) system through which it may grant a Natural Resources Conditional Use permit to oil and gas development activities only if the following conditions exist:

• evidence of the owner’s consent
• documented plans to protect property values, water quality, wildlife and plant habitat
• documented plans for long-term maintenance of surrounding lands and weed control regulations
• documented plans to reclaim all disturbed areas
• property appraisal of all adjacent properties with 1.5 miles
• a monitoring schedule for effective third party monitoring, at least every month, by a State of Montana licensed and bonded environmental engineer, of all development.

These zoning restrictions have been challenged and upheld in court, but the line between the provision of state law that prohibits local governments from blocking the exploitation of natural resources and those that allow local governments to zone to “improve the present health, safety, convenience and welfare of their citizens” is a fine one. Any citizen group that attempts to utilize zoning to block energy extraction is going to have to walk that line.

What it would take to do this in Carbon County
It’s easy to argue that Bozeman and Gallatin County are fertile ground for this kind of community action. As a writer for the Bozeman Daily Chronicle put it at the time, plans for CBM extraction were a mismatch for the community, characterizing the development as “heavy industry in an area of mixed agricultural and rural subdivisions, places with expensive homes placed in quiet, bucolic settings.”

It’s also true that coalbed methane and fracking are different, but the key problems with CBM are very close to those involved with fracking: huge volumes of water usage, disposition of wastewater, and heavy industry with all its problems — crime, traffic, infrastructure requirements — into an area that has no industrial base.

Red Lodge and Carbon County are somewhat different from Gallatin County, but it’s possible to imagine how something similar could happen here. It would take three basic things:

• A unified community. It will be important to engage the community to keep this from being simply a battle between people who care about the environment first and those who favor growing the economy. Citizens need to understand that allowing the Beartooth Front to look like the Bakken will destroy everything that local residents care about: not only the environment, but the quality of life, the tourism industry, and, in the long run, when the drillers have gotten what they can get, the economy. It is this understanding that can give a strong voice to the entire community.
• Political leadership. Ultimately, if Carbon County is going to take this road, it will be a decision that will be made by public vote. County Commissioners are not going to decide to make controversial zoning decisions on their own. They’ll have to be persuaded by effective voices in the community: ranchers and landowners, environmentalists, and business leaders.
• Strong legal footing. As I think this post has shown, the law on this subject is complicated. Local communities are restricted as to what they can do to stop drilling, but they do have the right to protect the local community. Any zoning restrictions will have to crafted to withstand the legal challenges that will certainly result.

This is not a battle for the faint hearted. But a well executed strategy could have a far-reaching impact on a community that needs to be preserved. As inspiration, here’s the Bozeman Pass today, as beautiful as it was 20 years ago, thanks to the committed citizens of Gallatin County.

Special thanks to Derf Johnson of the Montana Environmental Information Center for his invaluable help in preparing this post. MEIC is a non-profit environmental advocacy group founded in 1973. They do great work lobbying in the State Legislature, as a government agency watchdog, as a promoter and protector of the Constitution, and as a grassroots organizer and public educator. You can join their email network here. Derf shared with me a research paper he did on this subject, which provided information I was unable to find elsewhere.

Disclaimer: I am not an attorney or an expert on environmental law. Please consult with an attorney before acting on any of the information presented here.