Today we have video of the September 18, 2014 Carbon County Commissioners meeting in which the County provided feedback on the Silvertip citizen-initiated zoning petition presented to them last month.

All three Commissioners were in attendance, as was Energy Corporation of America attorney Mike Dockery of Billings, and several land owners from the Silvertip Zone.

The bottom line
County attorney Alex Nixon provided feedback to the Silvertip Zone petitioners on the legal standing of their petition.

Alex Nixon, Carbon County Attorney. Photo credit: Lloyd Blunk, Billings Gazette

He advised the County Commissioners to not take action on the petition for one primary reason: the law requires that the land in a citizen-initiated zone be contiguous, and the Silvertip Zone is not a single contiguous parcel.

He commented that zone boundaries can be creatively drawn, but they must be a single piece of land. He said that even the main parcel in the Silvertip Zone seems to be two or three distinct pieces of property.

He also indicated that he had concerns that the petition was not specific enough about what is to be zoned, even though supporting documents are much more specific.  He said that this concern by itself was not enough to keep the Commissioners from acting on the petition.

He said that this is common in petitions of this type, and that he has been involved with many that required multiple iterations to achieve approval.

He recommended that the petitioners redo the petition, define the zone properly and come back.

As a result of his recommendation, the County Commissioners took no action on the petition, meaning they did not move to the next step of creating a planning and zoning committee.

The legal requirement for contiguous zones
The law requiring contiguous zones is pretty clear. According to Montana Code Annotated 76-2-101(3), a zone means “any area that consists of not less than 40 acres.” Further, according to a Montana Attorney General’s Ruling issued in 1987, “Section 76-2-101(3) requires that the acreage in a zoning district be one contiguous 40-acre parcel.”

Mr. Nixon went into some of the reasoning behind this, but the bottom line is that, in order for Carbon County to consider the Silvertip Zone petition, the land in the zone will need to be a contiguous parcel.

What’s next
I spoke to the organizers of the Silvertip Zone, and they were not deterred by this decision. They plan to correct the issue and come back to the Commissioners with a new petition that meets the requirement of the law as soon as possible.

Keep in mind that the decision to take no action based on the multiple fragments of land has no bearing on any future decision the County Commissioners might make on whether to form the zone.

Click to view full letter

Energy Corporation of America letter
In yesterday’s post I referred to a letter that was the basis for Energy Corporation of America (ECA) attorney Mike Dockery’s comments at the Belfry meeting. County Commissioner John Grewell was kind enough to provide me with a copy of the letter, which is available here for your review. You can view the entire letter by clicking on the graphic on the right.

The letter is consistent with his remarks at the meeting. Mr. Dockery is trying to rewrite the rules for citizen-initiated zoning so it doesn’t apply to the oil and gas industry in Montana. You can view my initial comments on those remarks in that post.

Do mineral rights holders need to be considered in a citizen-initiated zone?
I’d like to focus on the issue raised in the letter of whether mineral rights holders should be included as land owners for the purpose of establishing a citizen-initiated zone, as Mr. Dockery contends.

As Alex Nixon points out, there is no established law or existing opinions on this contention. What we have is a Super Lawyer hired by a big oil firm dreaming up a legal fight that he can take to the Montana Supreme Court to add to the list of citizen protections overturned by the oil and gas industry.

What Mr. Dockery is trying to do is effectively end citizen-initiated zoning by imposing a requirement so burdensome that most petitioners will find it impossible to meet it. They’d have to go to the County Clerk and spend hours researching sketchy records to determine the mineral ownership of each property, contact these mineral owners, many of which are corporations spread all over the world, and get them to agree to sign a zoning petition dealing with local surface properties in which they have no interest.

This defeats the entire purpose of citizen-initiated zoning, which has to do with “the public interest or convenience.” The surface owners — those really concerned with the public interest and convenience — will have no ability to act in their own behalf.

Mr. Dockery offers no advice on how this might work:

• In citizen-initiated zoning, established rules clearly state that if there are multiple owners of a property, the signature of only one of these is allowed. Multiple owners of a property count as one in both the numerator and denominator for measuring 60% of land owners in a district. If we count mineral owners, where do they go in the numerator and denominator?
• If they count only as additional owners of a single property, then we don’t need their signatures if we already have the signature of one of the surface owners.
• If we count the mineral owners as an additional property in the denominator, do we then allow the signature of a surface owner AND a mineral owner to reach the 60%?
• And what about a surface owner who also owns the minerals? Do we get his signature twice and count both in the numerator as we try to reach 60%?

Clearly Carbon County can’t offer direction to petitioners on this because there is no law, no rules or legal recognition of Mr. Dockery’s imaginative new legal provision.

The Silvertip petitioners are under no obligation to determine mineral rights ownership or get signatures from mineral rights holders because there is no process defined in the law for them to do so. As I’m sure Alex Nixon knows, Carbon County would be legally exposed if it took Mr. Dockery’s suggestion and made up guidelines for the inclusion of mineral rights owners and getting their signatures.

Mr. Dockery is welcome to have an opinion about the way citizen initiated zoning should work or not work. If he and John Mork want to spend lots of money to go to the Montana Supreme Court to try to get them to agree to disenfranchise local land owners, they are welcome to do so.

In the meantime, the Silvertip Zone petitioners should move forward the way the law works today.