Last week landowners in the Silvertip area of Belfry filed a legal action to overturn the Carbon County Commissioners’ rejection of their attempts to form a citizen initiated zone

Here is a timeline of events leading up to this action:

October, 2013: John Mork, the CEO of Energy Corporation of America, announced the opening of an office in Billings and plans to hydraulically fracture 50 wells along the Beartooth Front in a move that would bring “a little bit of the Bakken” to the Beartooths. At about this time, ECA approaches a local landowner and offers a one-time payment of $4,500 for access to three acres of land to drill the well. The landowner was told they had no choice but to sign.

Protest in front of the Montana Board of Oil and Gas Conservation. Photo credit: Casey Page, Billings Gazette

December: The Montana Board of Oil and Gas Conservation (BOGC) refuses to hear the arguments of concerned citizens and grants ECA a permit for a well near Silvertip Road in Belfry.

January 8, 2014: Northern Plains Resource Council and its affiliate Carbon County Resource Council file suit against the BOGC, demanding a hearing on the well permit and reforms in the process by which the BOGC permits wells.

February 7: Analysis reveals that ECA has an abysmal safety record in Pennsylvania and West Virginia, with 66 inspections with violations, 90 separate violations, 55 enforcement actions, and fines totaling over $80,000 in Pennsylvania alone. You can download a copy of the actual report here.

February: BOGC accepts the demand in the lawsuit and grants a hearing on the well.

Well structure. Click to enlarge

February 27: BOGC ignores public input and expert testimony, granting the permit as requested by a 6-1 vote.

March: Neighbors begin to discuss options to protect their land, water and way of life. Given the lack of protection from the BOGC and other state entities, they look specifically at options for local action.

May 14: ECA begins work on the well. Residents immediately become concerned that the company’s contractors are illegally drawing water out of a gravel pit near the site. A water right is required, and none exists.

Tanker truck illegally removing water from well. Click to enlarge.

email update from Kim Overcast, Regional Director of Montana DNRC. Click to enlarge

May 21: After receiving a citizen complaint and dozens of calls and emails from local citizens, the Montana Department of Natural Resources shuts down the illegal appropriation of water from a local gravel pit without a water right.

May 23: The contractor makes a deal with the town of Bridger to get one truckload of water per day until June 10. The deal was made without a public hearing.

June, 13: ECA begins dismantling the well structure. Dismantling is complete on June 16.

Well head, July 18. Click to enlarge

July 7: ECA gives notice to the BOGC of “intent to perforate” the well. In addition they filed an “intent to stimulate or chemically treat the well.” Both of these are steps toward hydraulic fracturing.

According to Jim Halverson of the BOGC, ECA has told him that the company plans on monitoring the results of the perforations for 30 days, then will apply to frack if they want to move forward. Fracking requires 48 hours advance notice to the BOGC.

August 18: Landowners from the Silvertip area present petitions to the Carbon County Commissioners to establish a citizen initiated zone in their area. An overflow crowd supports the petitioners. You can view a video of the meeting below.

September 8: The Carbon County Commissioners invite ECA to speak before another packed meeting. Rather than send senior executives, the company sends the Belfry well project manager and a community relations representative based in West Virginia, who are unable to provide adequate answers to questions from the audience. Video of the meeting below, and my comments here, here, and here.

Click to view full letter

September 17: The Carbon County Commissioners hold an evening public meeting at Belfry School to allow public input into issues related to oil drilling in the area. ECA attorney Mike Dockery and the ECA project manager are invited in advance to speak, and Silvertip landowner Bonnie Martinell is asked to join them at the beginning of the meeting. Dockery makes a lengthy presentation in which he outlines ECA’s objections to the Silvertip Zone, detailed in a letter to the Carbon County Commissioners. You can read the letter by clicking on the photo at right.

The video below shows the entire meeting. 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.

Alex Nixon, Carbon County Attorney

September 18: County attorney Alex Nixon provides feedback to the Silvertip Zone petitioners on the legal standing of their petition.

He advises the County Commissioners not to 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 also indicates that he has concerns that the petition is 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 says that legal shortcomings are common in petitions of this type, and that he has been involved with many that required multiple iterations to achieve approval.

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

Video of the meeting:

Fall, 2014: Silvertip residents, working with the Carbon County Resource Council, regularly attend meetings to provide citizen input into the County’s five-year growth plan.

November 20: Silvertip landowners return to the County Commissioners with a new petition for a contiguous zone, signed by all but one of the original petitioners within the boundaries of the zone.

December 12: In a letter to the Carbon County Commissioners, ECA indicates tht they have “determine(d) that (the Belfry) well is not a good candidate for further development for ECA. Therefore, we do not have plans to further develop this well, or pursue additional wells in the area at this time.” Silvertip residents regard this as welcome short term news, and an opportunity to put needed protections in place before the next operator moves in.

December 15: At a well-attended meeting in Red Lodge, Carbon County Commissioners vote to move forward to create the Silvertip Zone in Belfry. The Commissioners agreed that the zone is “in the public interest and convenience for public health, safety and welfare, and for the public infrastructure.”

Meeting video:

In making this decision, the Commissioners rejected ECA attorney Mike Dockery’s argument 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.”

Susan Swimley letter. Click to download complete letter.

Susan Swimley attorney for the landowners, successfully countered this argument by explaining 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.

January 15, 2015: In a stunning reversal that ignored the will of the majority for the opinion of a small minority, the Carbon County Commissioners withdraw their motion to accept the petitions to form the Silvertip Zone.  Commissioner John Prinkki explained the move by saying, “The petition fails. As you know, under Section 5, because of the protest, we couldn’t move forward with this if we wanted to. It fails for that fact alone.” The rejection is clearly illegal, based on a recent Montana Supreme Court ruling.

Video of the meeting:

Silvertip landowner testifies for protections before a legislative committee in Helena

January 28: Landowners travel to Helena to testify on multiple bills in the current Montana legislative session that would provide protection against unregulated oil and gas drilling. These protections include mandatory water testing, setbacks from occupied residences, disclosure of the chemicals used in fracking, well design requirements, and increased bonding to protect against damage.

All of these bills were tabled in committee, and are presumed dead until at least the 2017 legislative session.

February 13: Stymied at every step by every possible state and local agency, Silvertip landowners file a legal challenge to the Commissioners’ ruling in state district court in Red Lodge.

Updated July 13, 2015:
June 4, 2015: Hearing in Red Lodge before Judge Blair Jones in the case of Martinell, et al,  v. Board of County Commissioners of Carbon County, et al.

Judge Blair Jones. Billings Gazette photo.

July 8, 2015: In a narrow ruling that demonstrates how government at all levels conspires to deprive small landowners of their rights, Judge Blair Jones ruled that:

• The Silvertip Zone petition did not meet Carbon County standards that had been established by the Commissioners in 2009, and
• The Carbon County Commissioners actions in waiving their own requirements were illegal.

The practical result of these rulings is that all actions with regard to this petition are void, the suit is dismissed, and the petitioners need to either appeal the decision or start over once again and file new petitions that meet the County standards.

The landowners now have two options:

1. They can regroup, recollect petitions, and resubmit to the County Commissioners. Restarting the process would leave them open to the same sort of Commissioner misbehavior they have experienced the last time they submitted.

2. They can appeal Judge Jones’ decision, and go to the Montana Supreme Court to make sure that the legal protections against a small group of protesting landowners that are afforded in other types of zoning, are applied to citizen initiated zoning as well.

September 29, 2015: Montana Supreme Court agrees to hear Silvertip zoning case

December 4, 2015: Silvertip landowners attempting to form the Silvertip Zone in Carbon County received a significant boost in their Montana Supreme Court case last week when the prestigious Natural Resources and Land Use Clinic at the University of Montana School of Law filed an amicus brief in the case.

February 3, 2016: All briefs filed in Silvertip zoning case. The Montana Supreme Court will now decide whether to schedule a hearing or make a decision on briefs filed to date.