There was a familiar look to the gallery at the hearing Thursday in the Stillwater County Courthouse in Columbus. In the case of Beartooth Front Coalition et al vs. Stillwater County Commissioners, there were, by my count, 56 people there in support of the Beartooth Front Coalition, which is suing Stillwater County to establish a citizen-initiated zone to regulate land use related to oil and gas along the Beartooth Front.
They were easy to identify. They all knew each other. They are neighbors in southern Stillwater County who signed a petition to establish the zone. They greeted each other by name, offered encouragement, expressed resolve to be successful in the suit.
There were also three journalists, representing the Billings Gazette and the Stillwater County News.
And who was there representing the mineral rights owners who are at the heart of the case? Only the four defendants — Stillwater County Commissioners Maureen Davey, Mark Crago, and Dennis Shupak, and County Clerk Heidi Staidl — and their hired gun attorney from Cheyenne.
The Commissioners adopted a novel theory in rejecting the petition, suggesting that it was not sufficient that 60% of these neighbors – over 550 of them – signed the petition, as required by law. They rejected the petition because they said that the law requires the signatures of 60% of the subsurface owners as well, even though no county had required this for any of the 111 previous citizen-initiated zones in Montana. The landowners filed suit in February.
There was a heavy irony in this. Here they were – four elected officials fighting in court against the people who voted for them and who pay their salaries, fighting to protect the rights of people who don’t live in Stillwater County and who they don’t even know. The minerals owners are, of course, proxies for the oil and gas industry, who the Commissioners have decided to represent against their natural constituents.
The landowners care enough to show up
It was not surprising that the landowners came out in force against nameless and faceless opposition. At every previous opportunity for public input into this process, the landowners stepped up to support the petition, and nobody showed up in opposition.
At a public hearing on zoning in March, 2017, 23 people braved wintry weather to speak in support of citizen-initiated zoning. Nobody spoke against. At a hearing on the Commissioners’ proposed new policy on citizen-initiated zoning in March of this year, 25 speakers spoke against the policy, which would have required the signatures of minerals owners, and nearly 50 wrote letters in opposition. Nobody showed up to speak in favor of the policy or wrote in support.
The hearing itself was one-sided, and Judge Blair Jones left no doubt as to how he planned to rule. The Cheyenne attorney had filed a motion asking Judge Jones to decide the case in favor of the Commissioners because she claimed that Montana state law does not allow counties to regulate oil and gas, that this is reserved only for the Montana Board of Oil and Gas Conservation. Kim Wilson, the landowners’ attorney, argued that it was impossible to say whether any regulations are legal because there are no regulations – the Commissioners have not formed the zone, which would have to happen before the court could look at whether they were legal or not.
Judge Jones sided with Wilson, responding that the court was not in the business of issuing speculative rulings, and that he couldn’t imagine doing so. He said he looked forward to arguing the real issue in the case, whether minerals owners have a say in land use decisions related to oil and gas extraction. He promised to issue a ruling on the Commissioners’ motion soon, but it is clear that he is going to deny it.
Wilson, the landowners’ attorney, said he planned to file a motion for summary judgment on behalf of the landowners within the next few weeks. This will be the primary motion in the case, litigating who has a right to determine what happens along the surface of the Beartooth Front.
After the hearing the neighbors retired to the hallway outside the courtroom to exchange greetings and congratulate each other on a successful day in court. The Commissioners went back to their offices alone, none willing to venture out to speak to their constituents.
This is going to be a long process. There will be other days in court on this case, some perhaps more difficult than this one. But there is no doubt the landowners are resolved to fight as long as it takes to protect their rights. The issue for them is personal. This is their land, their community, their livelihoods. The Commissioners, for their part, seem determined to fight against their taxpayers to protect the oil and gas industry. It is much less clear what drives them. I wonder if they know themselves.