Missoulian: Environmental group sues Montana AG over ‘fracking’ documents

According to the February 1, 2014 Missoulian, the Montana Environmental Information Center (MEIC) has filed suit against Attorney General Tim Fox over Fox’s failure to disclose documents related to his support of a letter protesting federal efforts to regulate fracking.

This is the second suit filed against a state agency in the last month. On January 8 the Northern Plains Resource Council and Carbon County Resource Council filed suit against the Montana Board of Oil and Gas Conservation for refusing to allow public input into the granting of a permit to drill an exploratory well near Belfry.

This suit is a matter of concern to residents of Carbon and Stillwater counties for a couple of reasons. First, the general issue of government secrecy with regard to the expansion of oil drilling is a significant problem. Fracking will have a dramatic impact on many aspects of our lives, and government needs to be responsive to citizen concerns. Second, the notion that the federal government should abdicate regulation of drilling on federal lands to the states is just scary. The reason we have BLM lands is because the federal government set them aside for protection against local interests. We need active federal engagement to develop national policy that protects these lands rather than opening them up to corporate interests.

Here is the Missoulian article:

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:HELENA – The Montana Environmental Information Center has sued Attorney General Tim Fox to gain access to certain documents related to the public position he took on hydraulic fracturing.

In the lawsuit, filed late this week in state District Court in Helena, MEIC said it wrote Fox on Aug. 30, 2013, expressing concern over his position in joining some other attorneys general in a letter to U.S. Interior Secretary Sally Jewell opposing federal efforts to further regulate hydraulic fracking, or “fracking.”

Hydraulic fracking, combined with horizontal drilling, is used in oil shale development.

Fox joined four other attorneys general in signing an Aug. 23, 2013, letter by Oklahoma Attorney General Scott Pruitt expressing “serious concerns with, and strong objections to, the U.S. Bureau of Land Management’s recently re-proposed rule to regulate hydraulic fracturing operations on federal and Indian lands.” The letter said the states were best equipped to design, administer and enforce laws and regulation related to oil and gas development.

On the same day, Gov. Steve Bullock wrote a separate letter to Jewell expressing his “deep concern” about the proposed hydraulic fracturing rules. Bullock said those states that already regulate fracturing should retain primary authority for regulating the activity on public lands through a memorandum of understanding with the BLM.

“This lawsuit is simply about the attorney general of Montana refusing to comply with the public records act and the Montana constitutional right to know, plain and simple,” said Jim Jensen, MEIC’s executive director. “We asked for documents and they refused to give a full disclosure. What is the attorney general hiding?”

In response, Fox’s spokesman John Barnes issued this statement to reporters: “The true political nature of MEIC’s lawsuit is made evident by the fact that MEIC went to the press before notifying our office of the lawsuit, and the fact that the lawsuit singles out the Republican Attorney General’s office when both our Democrat governor and the attorney general worked together to protect Montana jobs from unnecessary federal regulation.”

In response, Jensen said under state law, only the governor of the state has the authority to represent Montana to another state and the federal government.

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On Aug. 30, MEIC requested from Fox any documents in his office regarding his office’s involvement with the letter. The request sought memos, policy directives, correspondence, emails, letters, research analysis, documents and communications. The letter asked that if Fox chose to withhold documents, that a “privilege log” be kept detailing the reasons.

On Nov. 6, MEIC’s lawsuit said, Fox’s office responded with a letter of explanation and a privilege log showing that certain documents were withheld because they were nonresponsive to the request, while others were withheld because they were a “litigation item” or in “anticipation of litigation.”

Some email addresses were redacted for “privacy reasons,” the lawsuit said, even though it appears all individuals on the email chains were public officials in Montana or elsewhere.

“Government email addresses are not protected by any individual privacy rights,” said the complaint, filed by Helena attorney David K.W. Wilson. “To the extent that any of the individuals are not public officials or employees, they are members of the public involving themselves in a public policy debate.”

MEIC wrote again on Nov. 26 and argued to the attorney general that most of the items on the privilege log could not be withheld under the state’s constitutional right to know or case law construing it.

On Jan. 3, the Attorney General’s Office responded with more documents and an updated privilege log, but it continued to withhold certain documents that MEIC argued should be made public, the complaint said.

“When the attorney general of the state of Montana took a broad policy position on a controversial environmental matter on behalf of the state of Montana, there can be, and is no, individual privacy interest at state in documents generated by, or sent to, the attorney general,” the complaint said.

No active litigation exists involving Montana over federal attempts to further regulate fracking, the complaint said.

It said that the attorney general’s concern that litigation on this topic may arise in the future “does not justify under the constitutional and statutory right to know, the withholding of any documents.”

MEIC’s lawsuit said no exception exists to Montana’s right to know to allow the redaction of portions of public documents dealing with other states’ lawsuits against the federal government that have been provided to an agency of the state of Montana.

About davidjkatz

The Moses family has lived on the Stillwater River since 1974, when George and Lucile Moses retired and moved to the Beehive from the Twin Cities. They’re gone now, but their four daughters (pictured at left, on the Beehive) and their families continue to spend time there, and have grown to love the area. This blog started as an email chain to keep the family informed about the threat of increased fracking activity in the area, but the desire to inform and get involved led to the creation of this blog.
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