At the beginning of the Carbon County Commissioners meeting on December 15, several communications are read into the public record. Two of these provide a rare opportunity for citizens to hear, side by side, clear statements of opposing legal points of view on an important subject.
In this case the subject is the formation of the Silvertip Zone in the Belfry area. The letters read into record include one from Mike Dockery of Crowley Fleck in Billings, attorney for Energy Corporation of America, and a direct response from Susan Swimley, attorney for the Silvertip Zone petitioners.
In the end, the County Commissioners considered the two points of view and agreed that the zone is “in the public interest and convenience for public health, safety and welfare, and for the public infrastructure,” and voted to move forward.
I’ve posted the letters below for your review, and you can listen to the discussion in the video below. The Dockery letter is read by Chairman John Grewell and begins at 4:10; Susan Swimley reads her own letter beginning at 27:55.
Let’s look at the two letters in turn.
Mike Dockery letter
Dockery’s letter, which you can read in full by clicking on the graphic at right, treads familiar ground. We heard him present similar arguments at the Belfry School meeting on September 15, and published his earlier letter in a post on September 23.
Here are Dockery’s arguments:
- The Petitioners cannot demonstrate that the requisite number of affected real property owners have signed the Petition in accordance with the applicable zoning statutes. This is his argument that the petitioners need to account for the mineral rights owners as well as the surface owners. Carbon County Commissioner Alex Nixon has stated in an earlier meeting that there is no legal precedent for this (see video here).
- The Montana Board of Oil and Gas Conservation (BOGC) has been granted sole authority in the State of Montana to regulate oil and gas drilling and development activities. This is the core of Dockery’s argument. It says that the BOGC was set up by the legislature as a “quasi judicial body” with the exclusive power to regulate oil and gas activities. Because this is an exclusive right, if the County sets up a zone to regulate oil and gas it will “usurp that right.”
- There is no required public interest or convenience for the proposed district. This is directly related to the point above. He is saying that, by definition, the public interest cannot be served by a zone, since the BOGC has exclusive power to regulate oil and gas activities.
The proposed zone would constitute illegal “spot zoning.” This is a curious point, given that the initial zoning petition was not acted upon by the Commissioners because Dockery had pointed out that the zone was not contiguous, as required by Montana law. The Silvertip landowners reworked the zone to make it not only contiguous, but larger than the minimum size required by MCA 76-2-101(3). Dockery’s argument that the zone is illegal because it is “rather small” does not seem to be supportable.
- Any attempt to regulate ECA’s right in the permit for its well or its mineral interests would constitute an unlawful taking. This is related to the arguments above regarding the exclusivity of the BOGC. The argument says that the rights granted by the BOGC permit cannot be taken.
- The creation of the proposed district is an unlawful attempt to interfere with the mineral interests located within such district. Dockery references the Montana Zoning District Act, which prohibits regulation that “prevent(s) the complete use, development, or recovery of any mineral, forest, or agricultural resources by the owner of any mineral, forest, or agricultural resource. Interestingly, Susan Swimley mentions the same law in her letter (see below). Dockery fails to mention that this same law, in a later section, say that “Zoning regulations adopted under this chapter may reasonably condition, but not prohibit, the complete use, development, or recovery of a mineral…”
- The failure to work with government agencies specifically charged with authority over the development of natural resources is inconsistent with the Carbon County Growth Policy. This one is a real stretch. Dockery points to a provision in the 2009 Growth Plan, which commits Carbon County to “actively engaging with state and federal agencies for large-scale mineral development.” What Dockery fails to mention is that Silvertip landowners, working closely with the Carbon County Resource Council, have been actively engaged in a new County Growth Plan, scheduled to be adopted in January. That Growth Plan calls for use of Part 1 zoning by local landowners to regulate oil and gas activity. ECA and Dockery have been uninvolved in this process.
Susan Swimley letter
Swimley meets head on Dockery’s argument that the BOGC has exlusive right to regulate oil and gas. Her core argument is that Montana counties not only have the authority to regulate oil and gas activities, but the responsibility to do so in order to protect the health, safety and welfare of its residents, as long as these regulations do not directly conflict with specific authority given to the BOGC by the State.
According to the letter, this authority is provided to counties:
- Expressly by statute, in MCA 76-2-101: (Part 1 zoning). Further, when a question of authority arises between the BOGC and a county, the law should be read in favor of county authority because the Constitution in Article XI, Section 4, provides that county authority should be “liberally pursued.”
- Implicitly, because the legislature has not prohibited it. The legislature has explicitly excluded grazing, timber, horticulture, and agricultural activities from regulation by Part 1 zoning, but has placed no restrictions on applying Part 1 zoning to oil and gas.
The second part of Swimley’s argument has to do with resolving potential overlapping areas of authority between the BOGC and a county. When authority is overlapping, she says, State law requires that local governments coordinate with State agencies.
There is one area where the legislature has specifically preempted local jurisdiction with regard to oil and gas activities: MCA 82-11-111 says that the BOGC has “exclusive jurisdiction over all class II injection wells and all pits and ponds in relation to those injection wells.” Clearly, according to Swimley, counties may not regulate this type of well. For all other types of well, there is clearly “concurrent authority,” and the county may regulate.
Swimley even points to the BOGC Permit to Drill form, which requires applicants to identify whether there are any local zoning permits required for an oil activity.
An open process
The Carbon County Commissioners are to be commended for the open process they have employed in giving citizens access to videos and documents as part of this process. Whenever there is a contentious public issue, it is best to give the public access to the documents the Commissioners use.
I encourage you to read these documents yourself. The truth is not the sole province of lawyers. The arguments on each side could not be more clear. Read them and see for yourself why the Commissioners sided with the petitioners.
There were two other communications read into the record at the meeting:
- A letter from ECA to the Carbon County Commissioners indicating the company has no plans to develop the Belfry well “at this time.” More here.
- An email from a landowner in Belfry indicating opposition to the Silvertip Zone (click on graphic at right to read).
Thanks…to Commissioner John Grewell and Angela Newell for providing me with these documents.
Thoughtful, articulate analysis of the overwhelming persuasive arguments against ECA’s legal position. I think David Katz should seriously consider attending law school and start a new career, devoted to environment law.
While I value your opinion, the world has entirely too many lawyers. I’ll stick to taking potshots at them from the side.
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