Today we have video and commentary on a public meeting that the Carbon County Commissioners held at Belfry School on Wednesday evening, September 17. The Commissioners scheduled the meeting to provide more community members with an opportunity to discuss oil drilling in the area.

Presenters
The Commissioners invited the following people in advance to attend and make presentations:

Mike Dockery

Michael (Mike) S. Dockery, a partner in the Billings office of the law firm Crowley Fleck. His practice focuses on the areas of real estate and commercial law, including commercial and real estate sale, lease and financing transactions, subdivision, development, zoning and planning matters, title insurance issues and claims, creditors’ rights and foreclosures. Mike also represents clients in government and municipal finance transactions.

Dockery is a “Super Lawyer” who receives a prestigious “AV”  Preeminent rating from Martindale-Hubbell.

Seth Nolte, ECA project manager for the Belfry well. Seth also presented at the Carbon County Commission meeting on September 8.

Jim Halvorson, Montana Board of Oil and Gas (BOGC). According to John Grewell,  Halvorson, senior geologist at the BOGC, was invited but “couldn’t attend.”

Bonnie Martinell, who has been one of the leaders of the group organizing the Silvertip Zone was not asked to present in advance, but was asked to “join us at the table” at the beginning of the meeting.

What the presenter list says about the meeting
Who is invited and who attends says a lot about the importance and intent of a meeting.

It was certainly appropriate for the County Commissioners to invite ECA to speak. Belfry residents would want to hear what the company has to say.

The company’s choice of participants is curious. Seth Nolte gave pretty much the same presentation he gave to the County Commission two weeks ago. Once again, he was unable to give a direct answer to any question. This is frustrating, and ECA should reconsider whether he does more harm than good in public meetings.

The choice to send a polished Super Lawyer is interesting. If the company wanted the community to know what they are doing they would have sent a senior executive like Peter Sullivan, the company’s Vice President of Exploration. Mr. Sullivan would have been familiar with all the issues and could have been open and specific about every question raised.

That they sent their high-priced Super Lawyer is a clear indication of where they are coming from. They have no interest in meeting their industry standards for community engagement, which call for open communication and mutual problem resolution. Instead the choice of an attorney shows once again that they are not interested in trying to resolve the concerns of the Silvertip residents.

That Jim Halvorson of the BOGC “couldn’t attend” is not surprising. The Board that supposedly regulates oil and gas extraction has consistently shown no interest in hearing from the citizens affected by their regulations.

Finally, including a representative from the Silvertip Zone as an afterthought is indicative of the sensibilities of the County Commissioners. They have now held two well-attended events in the community, one last January 30 at the Elks Club, and now this one. In neither case was a concerned community member invited as part of the planned program. (Correction: It has been pointed out to me that the meeting at the Elks Club was not an event sanctioned by the Carbon County Commissioners. Mr. Prinkki participated as a private citizen.)

Including a concerned citizen at the last minute is a small step forward I guess. Thankfully she was ready to go and did a great job without having the opportunity to prepare.

The meeting
The meeting is an hour a half long. I urge you to watch it. It’s a great example of participatory citizen engagement. The first twenty minutes or so are prepared remarks by Seth Nolte, Mike Dockery, and extemporaneous remarks by Bonnie Martinell of the Silvertip Zone.

Comments by Mike Dockery, ECA attorney
Mike Dockery’s comments were focused on ECA’s problems with the proposed Silvertip citizen-initiated zone. Forgive my paraphrasing, but I have tried to do justice to his arguments below. He said he has expressed these in a letter to the County Commissioners. I have asked John Grewell for a copy of the letter, and will post it if he sends it to me.

1. The Silvertip Zone is not contiguous, but is a set of four small clusters of property. This, according to Dockery, is undermines the potential benefits of a zone.

Comment: This issue was part of the County’s response to the Zone. I’ll have more on this tomorrow.

2. The law requires that the petition have the signatures of 60% of the real property owners in the district. This means not only the surface interests, but the mineral interests. Because the Silvertip petition includes only signatures from the surface owners and no attempt has been made to ascertain the mineral owners and get their signatures, it has not met the requirement of the law.

Comment: This seems like a real stretch. If you look at MCA 76-2-101, the provision of Montana law that establishes citizen-initiated zoning,  the County Commissioners may establish a zone “whenever the public interest or convenience may require and upon petition of 60% of the affected real property owners in the proposed district.” So what Dockery is doing is defining mineral rights as real property. Since the mineral rights have actually been severed from the surface rights (in the same way that timber rights could be), they should not be considered.

3. The Board of Oil and Gas is responsible for regulating oil extraction. It “makes us go through a very rigorous process.” They do a complete environmental assessment. That’s what occurred here. Not only does the BOGC regulate the drilling, but they have the power to regulate the development of the oil and gas resources, and the power to enforce the regulation. It is a quasi-regulatory body. From our viewpoint the BOGC is the agency with the authority to regulate. For that reason the regulation of oil and gas through zoning is prohibited, and a zoning district can’t have “concurrent authority.” Further, there has to be a required public interest or convenience. Given the extensive regulation that already exists, there is no public need.

Comment: We’ve looked at what’s wrong the BOGC many times.It’s primary mission is to “conserve” oil and gas for extraction, and to support the development of wells for profit. It’s composition is weighted heavily to make sure that this mission is supported.

The BOGC does not protect the rights of surface owners. We have seen that in practice when residents of the Silvertip Zone had to sue to get a hearing on the Belfry well, and were completely ignored when they made legitimate requests for protection in the drilling of that well.

The citizen-initiated zoning process was set up exactly for this reason. It states specifically that a zone may be set up “whenever the public interest or convenience may require.” In other words, if the residents of a zone determine that a zone is necessary to protect their interests, then they can establish one.

A look at ECA’s record of trampling on the rights of real property owners in other states makes it pretty clear why residents would feel the public interest requires this.

4. Dockery expreessed a concern that there haven’t been any specific regulations proposed, which leads him to be concerned that citizens are trying to regulate mineral interests, effectively a “taking” of these interests.

Comment: This concern probably stems from the 1963 Mont. Code Ann. § 76-2-209,  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.

According to the law governing citizen-initiated zoning, the regulations will be set by a planning and zoning committee (PAZC) established by the County Commission. There will be plenty of opportunity for ECA to have input into these regulations, and to alert the PAZC if there is a concern about any specific regulations.

5. This would be an unlawful delegation of authority to citizens. A Citizen initiated zone shouldn’t be able to exercise powers greater than the government of the county.

Comment: This doesn’t make much sense. Montana law enables citizen-initiated zones. Is he complaining the law is unconstitutional?

7. The zone is not consistent with the growth plan, which commits Carbon County to exploit oil and gas development.

Comment: This is a reach. The zone is entirely consistent with the plan. It does not call for a ban on oil and gas drilling. It just requires fairness in the way it is done. The proposed regulations are entirely consistent with other elements of the growth plan.

Is oil and gas drilling regulated or not?
After Dockery finished, Bonnie Martinell spoke. Despite being given no prior notice, she spoke clearly with a strong voice, and effectively represented the interests of her neighbors in the Silvertip Zone.

Paraphrasing again, but the gist of her remarks was: “A lot of what he says is not true. There is no regulation, there is no control, there is no monitoring. A number of these land owners went to BOGC and were denied an opportunity to speak. ECA said they did not want us speaking to the BOGC.

“We’re just land owners who want to do the right thing and protect our land. We live in an area with very limited water. They put this well in a drainage area. With all these rules and regulations, this shouldn’t be allowed. We have no other option. We are not regulating the minerals. What we’re doing is allowing the land owners to negotiate as to where the well goes. So we don’t wind up being Pavillion Wyoming, where they walk away and we suffer.”

A number of people have focused on Bonnie’s repeated claim that there “is no regulation.”

Those who scoff and say, “Of course there’s regulation” are missing the point.

Bonnie has studied the law and probably understands the nature of regulation as well as Mike Dockery.

What she’s learned is that there is plenty of regulation that enables oil and gas drilling, but next to nothing that protects local land owners. Major protections in federal law have been stripped away over the years. The BOGC has demonstrated that it has no interest in hearing her neighbors’ concerns, or of requiring anything in a permit that protects their interests.

What few protections there are are not enforced by the BOGC. They have seven staff for inspections throughout the entire state. They have issued almost no fines for non-compliance over the last several years.

This is exactly why citizen-initiated zoning is necessary.

So please. When Bonnie says there are no regulations, what she means is that citizens are powerless to keep ECA from doing the same kind of damage in the Silvertip Zone that they have done all over Greene County, Pennsylvania.

Watch the Q&A
I strongly recommend that you listen to the question and answer session that follows Bonnie’s presentation. It is a wonderful example of citizen involvement. There were many speakers with comments, questions and concerns. They represent different points of view, different levels of understanding, and personal experiences.

It is exciting to hear people engage in the process.

I do want to call your attention to one comment by Commissioner John Prinkki that concerned me a great deal. At 1:19.37, on the subject of the impact of oil drilling on infrastructure, he says

We have the ability to work with oil companies to make sure that any impact they have on County infrastructure that they will help us maintain. We can ask them to do dust control, road (unintelligible) plugs, and if we have road traffic we have ways of regulating that by speed control. We’ll work with them to do that, and they will work with us.

That was not the experience of former Sidney Mayor Bret Smelser, who is also a member of the BOGC. While I’m certain that there are some accommodations that can be made, the certainty that “they will work with us” is reminiscent of other projects that Mr. Prinkki has been responsible for that have not worked out so well.

One of the reasons for citizen-initiated zoning is to establish agreements for behavior in writing rather than to trust companies that have proven unreliable in other settings.

Central Avenue in Sidney. Click to enlarge.

The bottom line
What the Silvertip Zone seeks to do is to establish the rules for oil drilling in an environment where surface property is not adequately protected. This is what’s fair.

ECA’s decision to send their Super Lawyer to represent them tells us they are not interested in understanding our concerns and meeting them, but plan to settle this in court if necessary.

The Silvertip Zone is not an attempt to ban oil and gas drilling. It only establishes rules that enable companies like ECA to exploit their mineral leases while protecting the property and way of life of local land owners.

Tomorrow I’ll post video of the County Commissioners’ response to the Silvertip Zone petition.