An edited version of the following guest editorial by Bonnie Martinell of Belfry appeared in the Billings Gazette on Tuesday, August 25. The editorial was also reprinted by Last Best News on August 25.
This month the Montana Board of Oil and Gas Conservation (BOGC) decided not to make rules regarding setbacks of oil wells from occupied buildings. Also this month, a group of my neighbors and I appealed to the Montana Supreme Court to overrule the Carbon County Commissioners and allow us to protect our properties against unregulated oil and gas drilling in the only way possible in Montana, through citizen initiated zoning.
The two are directly related.
The reason, and the ugly truth, is that there is no government agency in Montana that is willing to protect citizen rights if it means standing up to the oil companies. If you want to protect your property in Montana, you’ve got to do it yourself.
Let’s take the BOGC decision not to make rules about setbacks as an example. Montana is pretty much the only oil-producing state not to require setbacks to keep wells from being drilled too close to homes, schools, hospitals and sources of water. Wyoming has them. So do most of the other oil and gas states — North Dakota, Pennsylvania, West Virginia, Texas, Louisiana, Arkansas, Illinois, Michigan, Ohio and many others.
Steve Durrett, who represents the oil and gas industry on the BOGC says Montana doesn’t need setbacks because in Montana, unlike other states, “anyone can protest any well for any reason, or no reason at all.”
Here’s what that means in reality.
In 2013, Energy Corporation of America CEO John Mork announced his company planned to bring “a little bit of the Bakken” to the Beartooths, and filed for a well permit just a few hundred yards from my home. Weeks in advance of the hearing, working with Carbon County Resource Council, my neighbors and I hand-delivered, mailed and faxed notices to the BOGC that we planned to protest. But the hearing was canceled at the last minute by the BOGC, and the permit was granted.
We had to file suit just to get the permit revoked and a hearing scheduled.
At the hearing, ten of my neighbors testified about their concerns. They provided expert testimony about the risks of the well design. They testified about their concern that the well was being drilled in a stream bank and asked that the well be moved 150 feet from the proposed site. We weren’t asking to stop the well. We just wanted it done right.
The protest fell on deaf ears. One of the BOGC members took us aside after the meeting and told us that we needed to “put up with a few inconveniences” to support US energy independence.
Durrett went on to say that ”the vast, vast, overwhelming majority of these issues are resolved through negotiation between the landowner and the company.” Not really. I have personally witnessed the BOGC use the eminent domain process of forced pooling to require a landowner who owned both surface and mineral rights to accept drilling on his property.
But the BOGC is not by any stretch of the imagination the only branch of government that has no interest in individual property rights.
In the 2015 session, the Montana Senate refused to consider SB177, which would have required setbacks of at least 1000 feet between wells and homes, water wells or surface water. The bill didn’t make it out of committee.
And local governments are no better.
Determined to protect our properties, my neighbors and I took advantage of the provisions in state law allowing landowners to establish zoning districts to protect private property from incompatible commercial and industrial activity. We planned to create rules to establish setbacks, make sure that our water, air and soil were tested regularly to determine if they were contaminated, and require closed loop well design that would protect our property from runoff of dangerous waste.
In compliance with state law, we gathered the signatures of 68% of the landowners in the zone, and presented them to the Carbon County Commissioners, who accepted them and voted to move forward with the zone “in the interest of public welfare, safety, and convenience”. Then, when a minority of our neighbors protested, the Commissioners rescinded their approval, using a provision of law nearly identical to one for another type of zoning that has already been declared unconstitutional. We are hopeful that the Supreme Court will rule in our favor and allow us to set reasonable rules for drilling on our own properties.
One thing we’ve learned over the last 20 months is that protecting your property rights from unregulated oil and gas drilling in Montana takes time, and protections can’t be put in place over night. We certainly can’t depend on any institution of Montana government to protect us. We’ve got to protect ourselves if we’re going to get this right. We’re in this for the long haul, and the time to act is now.