Belfry landowners file legal challenge to Commissioners’ rejection of Silvertip Zone

Red Lodge legal actionRed Lodge, MT – Today, seven landowners filed a legal challenge in state district court to the Carbon County Commission’s rejection of their petition for land use regulations to protect their private properties from the harmful effects of oil and gas drilling.

The landowners collectively seek to establish the “Silvertip Zoning District” to cover nearly 3,000 acres of agricultural land north of Belfry, Montana. Creation of the district is the first step to establish solid protections for land, air and water quality, giving landowners an essential voice in the development of oil and gas on their properties.

Although some oil and gas development has occurred in Carbon County for decades, the Silvertip landowners were pressed to take action in October 2013, when Energy Corporation of America (ECA) CEO John Mork announced plans to hydraulically fracture 50 wells along the Beartooth Front — an area that includes Carbon and Stillwater counties in Montana and forms the northeastern flank of the greater Yellowstone ecosystem. Mork boasted that ECA hoped to bring “a little bit of the Bakken” to the Beartooths.

Existing oil well near the Silvertip Zone
Existing oil well near the area proposed for the Silvertip Zone

“State and federal laws don’t protect us from the worst impacts of oil and gas drilling,” said farmer Bonnie Martinell, one of the plaintiffs. “There are few requirements for protecting our water or how far drilling must be set back from residences. This means we have to take local action to do what it takes to protect our way of life and our livelihoods.”

Montana law empowers landowners to initiate the development of zoning regulations for the protection of their land and community by petitioning their county commissioners to establish planning and zoning districts. “We as landowners and farmers have seen the destructive impacts of oil development in this area and we asked the County to let us safeguard our property and livelihoods by enacting these basic protections,” said Martinell. “Citizen zoning is our only tool to protect our land and we are just trying to use that right given to us under state law.”

Earthjustice, an environmental nonprofit law firm, is representing the Silvertip landowners in their appeal challenging Carbon County’s rejection of their petition. Energy Corporation of America is named as a defendant in the lawsuit along with the Carbon County Commissioners. The case was filed in state district court in Red Lodge.

“Across the country, individuals and local governments are responding to the lack of state and federal leadership on the impacts of oil and gas development by demanding local control,” said Earthjustice attorney Jenny Harbine. “This lawsuit is about allowing the Silvertip landowners to protect their land and their livelihoods when no one else will.”

Beartooth Front viewed from the Silvertip Zone
Beartooth Front viewed from Silvertip area

Oil and gas drilling in shale formations such as that underlying the Silvertip area is commonly accomplished through hydraulic fracturing, or “fracking,” which involves pumping millions of gallons of chemical-laced water and sand into the ground to release trapped oil and gas. After the well is fractured, substantial quantities of this contaminated water — which contains high concentrations of salt, drilling chemicals, heavy metals, and radioactive material — returns to the surface, where it is frequently stored in open containment ponds that pose substantial risks of leaks or failures.

As much as one-third of the contaminated water can remain underground after drilling is completed, threatening pollution of soil and groundwater. Numerous chemicals used for hydraulic fracturing are linked to serious human health problems, including respiratory distress, rashes, convulsions, organ damage, and cancer. However, neither federal nor Montana law restricts the use of these dangerous chemicals in hydraulic fracturing, requires pre-drilling notification to adjacent landowners or the public, or mandates surface or groundwater testing to detect contamination.

The Silvertip landowners have lobbied extensively before the Montana legislature and the state Board of Oil and Gas Conservation for protections from the adverse impacts of unregulated drilling, but those government bodies failed to take action. In Montana, several bills were introduced this legislative session that would have enacted basic safeguards on oil and gas development, but all have been tabled in committee and are unlikely to receive a full vote in either house.

Although interest in large-scale oil and gas development in Carbon County has waned with dropping oil prices in recent months, Martinell said the zoning designation remains necessary to protect landowners when oil and gas development picks up again.

“Through this process we’ve learned that developing regulations takes time and protection cannot be put in place overnight. If we’re going to get this right, now is the time to act.”

Earthjustice online version of press release

Coming up on Preserve the Beartooth Front:
Monday: Belfry well timeline
Tuesday: Q&A

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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8 Responses to Belfry landowners file legal challenge to Commissioners’ rejection of Silvertip Zone

  1. lynnbob says:

    Unfortunately the oil industry can’t wait to get this issue before the Supreme Court in Montana! They already know the outcome once it reaches the high court. The outcome is inevitable because of the pro industry makeup of the state government. I personally have been a victim of this system where individuals have absolutely no say into the use of their own land in Montana. We have no rights at all in this state. Bob Hilten

    Sent from my iPad


    • davidjkatz says:

      Somebody once told me that when you work on oil and gas issues you can never win, but you have to do well enough to keep fighting. The Supreme Court in 2013 ruled very favorably on landowner rights in a similar case, and I’m hopeful they’ll rule favorably here.

      Keep in mind that these landowners are doing everything they can to work within the system. They’ve had to fight just to be heard at the Board of Oil and Gas; they’ve lobbied in the legislature, and they’ve tried to work with the County Commissioners.

      This is the next avenue open to them and they need to keep going. I applaud their courage and tenacity.

  2. wilderld says:

    I find it extremely encouraging that EarthJustice will take this case. They must think that the Silvertip folks have a solid chance at winning. There simply must be a balance between corporate interests and the interest of individual landowners. On issues that impact public health, this is essential.

  3. davidjkatz says:

    I encourage readers to read the complaint. It is written so that non-attorneys can understand it. The complaint makes it clear that the Commissioners overreached in denying the zone based on a protest from a handful of landowners.

  4. Pingback: Timeline of events leading to legal action by Silvertip landowners | Preserve the Beartooth Front

  5. Pingback: Energy Corporation of America dismissed from Carbon County lawsuit. Will landowners be next? | Preserve the Beartooth Front

  6. Pingback: BREAKING. Decision in Silvertip Zone case (video) | Preserve the Beartooth Front

  7. Pingback: Silvertip landowners’ Supreme Court case receives boost from University of Montana amicus brief | Preserve the Beartooth Front

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