Action Alert: Your voice needed on new Montana Board of Oil and Gas Conservation chemical disclosure rule

Action Alert
Your help is needed. The Montana Board of Oil and Gas Conservation (BOGC) will be holding a public hearing on its proposed new rules for fracking chemical disclosure. Quite simply, these proposed rules are not strong enough to adequately protect landowners and it is important for you to lend your voice to make sure landowners’ voices are clearly heard.

You can make your voice heard in either of two ways:

  • The most effective way is always to be there in person. You can do this by attending the BOGC hearing on September 17 at 2pm at 2535 St. Johns Avenue in Billings. Please come if you can.
  • You can also submit written comments via email through September 24 to Reference Hydraulic Fracturing Rulemaking in the subject line.

In July 2016 a group of landowners, along with two environmental groups,  asked the Montana Board of Oil and Gas Conservation (BOGC) to change their rules to require chemical disclosure to be part of the application process for drilling a well and the information be made public at least 45 days before fracking occurs. The BOGC rejected the petition in September 2016.

The BOGC’s current rules, put in place in 2011, are effectively useless for landowners trying to protect their water. Oil and gas operators do not have to tell the board or public about the specific chemical ingredients it uses for fracking until after operations are complete. This is not enough information to conduct baseline testing, and even after fracking occurs, the rules let oil and gas companies withold any chemical information operators claim to be a “trade secret.”

By contrast, Wyoming operators have to disclose the specific ingredients of their fracking fluids to a state official before they are approved for use.

In January 2017, the coalition of landowners and environmental groups sued the BOGC, claiming these rules violate the rights of Montanans under the state constitution.


Seeing the handwriting on the wall, State Senator Tom Richmond introduced SB 299 in the 2017 legislative session, and the suit was put on hold until after the bill was passed. Richmond is the former Administrator of the BOGC who now carries water for the industry in the Legislature. The bill passed.

The bill was a clear ploy to take the issue out of the courts and water down the rules that landowners need to protect themselves. It gave the BOGC cover to develop rules that prevent disclosure that truly protects landowners, and that is what has happened.

As a matter of personal disclosure, I am one of the plaintiffs in the lawsuit against the BOGC.

The proposed rules
The proposed rules are clearly a step forward from the ones that exist today. Specifically:

  • They no longer allow “generic” chemical disclosures. Oil and gas operators must disclose the specific fracturing fluid ingredients for each proposed well, including the individual chemical ingredient names and unique Chemical Abstract Service (CAS) number.
  • Operators are required to request trade secret exemptions from the Board. They must provide a detailed justification for any request to withhold chemical information from the public on the ground that it is a trade secret.

But these rules are simply not enough to protect landowners, excluding several elements the landowner/environmental group coaltion deemed necessary in their lawsuit:

  • A reasonable requirement for landowners to receive fracking chemical information in advance of the fracking activities. In order to utilize fracking chemical information for baseline water testing, landowners must have access to that information at least 45 days before fracking occurs.  However, the revised Rule does not provide a minimum time period for advance disclosure and allows operators of wildcat wells to disclose their fracking chemicals as little as 48 hours before fracking.

Here’s why this is critical: If water is contaminated during the fracking process, landowners must prove that the poisonous chemicals did not exist in the water before fracking took place. This requires pre-testing for the specific chemicals used. If there is no time to pre-test (which requires a certified lab), landowners are out of luck if contamination occurs.

Further, pre-testing is expensive, and the pre-testing of wells should be something operators pay for, not landowners. It is a cost of doing business.

  • The trade secrets loophole should be closed once and for all.  Operators currently withhold as much as 19% of the chemicals used in fracking as trade secrets, and that number is increasing. This is a result of the “Halliburton Loophole” in our friend Dick Cheney’s Energy Act of 2005. Some companies have already committed to disclosing 100% of their fracking chemicals: Baker Hughes, for example, believes “it is possible to disclose 100 percent of the chemical ingredients we use in hydraulic fracturing fluids without compromising our formulations.” The trade loophole unnecessarily disadvantages landowners.
  • Measures are necessary to get chemical information to medical professionals in an emergency. As proposed, the revised Rule still does not direct the Board to provide trade secret chemical information directly to first responders and other medical professionals who need it to take action in an emergency.  Instead, the Board’s proposal requires medical professionals to track down the oil and gas operator to request chemical information in an emergency. This is ridiculous, and jeopardizes lives.

Leaking storage pit near Lindsey, MT

Suggestions for your comments
Let the BOGC know who you are. If you are a landowner, let them know what your concerns are — protecting your water is probably foremost, along with the potential financial loss if contamination occurs. Speaking from your personal concerns is a way to make your voice most powerful. Some points you might touch on:

  • Advance disclosure to allow for water testing in advance of fracking is essential. I suggest you read my post Report from the water testing seminar in Lewistown. It will provide you with a basic understanding of the intricacies of testing, and the risk if it is not done properly. The proposed rules do not provide sufficient advance notice of the chemicals used in fracking to protect you if contamination occurs, and the potential liabilities are great.
  • Further, the BOGC should address the question of who pays for pre-testing of water, which can be very expensive, often over $1000. This should be a cost of doing business for the oil and gas companies. There is a fundamental inequity if landowners are required to pay to protect themselves from contamination from drilling from which they do not profit. There should not be a divide separating those who can pay from those who can’t.
  • The trade secrets provision is inadequate. The standards for declaring a chemical a trade secret are set forward in MCA 82-10-604. Companies have entire legal departments employed to figure out how to meet standards like this, and there is little reason to think the BOGC will be anything more than a rubber stamp for industry requests. The issue here for landowners is simple — is company’s need for trade secret protection greater than my need to know the chemical risks that exist to my water and property?
  • Emergency first responders need to have immediate access to chemical information to saves lives.

Thanks for lending your voice.

What’s wrong with the Montana Board of Oil and Gas Conservation?
Montana coalition sues BOGC over fracking chemical disclosure
“Changed circumstanes”: Montana Board of Oil and Gas reconsiders rulemaking on fracking chemical disclosure
Report from the water testing seminar in Lewistown

Posted in Fracking Information, Uncategorized | Tagged , , , , , , | 4 Comments

Op ed: The Stillwater County Commissioners aren’t doing their jobs

This op ed appeared in the Stillwater County News on August 23, 2018:

The Stillwater County Commissioners have this theory that landowners have few rights when it comes to oil and gas drilling, and they’ve been peddling it all over Montana to see if they can get somebody in an official capacity to agree with them. So far they’ve been unsuccessful.

Last August, after Beartooth Front landowners spent years collecting the signatures of their neighbors to form a citizen-initiated zone, the Commissioners decided that the surface owners needed to get approval of the underlying mineral owners. This was a new theory they thought up after enough signatures had been submitted. Stillwater is the only county in Montana that has ever interpreted the law this way. There are 111 previously-formed zones all over the state that have required the signatures of surface owners only.

So they asked Attorney General Tim Fox to weigh in on their behalf. After sitting on their request for months, Fox declined to issue an opinion. With no validation of their theory, the Commissioners rejected the zone anyway.

When the landowners filed suit to protect their rights, the Commissioners appealed to Judge Blair Jones in District Court to throw the case out. They said that regulation of drilling is reserved only for the Montana Board of Oil and Gas, and the landowners have no right to petition for a zone. Judge Jones would have none of it, and denied the County’s motion.

Unhappy with that outcome, the Commissioners then went to the Board of Oil and Gas at their August meeting in Billings, and asked them to publicly support the Stillwater County theory of the law. The Board refused.

The Stillwater County Commissioners are not doing the job they were elected to do.
(L to R): Dennis Shupak, Maureen Davey, Mark Crago

Let’s go back five years to the day an oil man from West Virginia showed up in Billings and promised to bring “a little bit of the Bakken” to the Beartooth Front. In response, the Stillwater County landowners decided to establish a citizen-initiated zone. Their goal was not to stop oil and gas drilling, but to make sure it was done right so that the land, water, and economy of the Beartooth Front would be preserved.

They approached the County Commissioners and asked for their help in establishing guidelines for the collection of signatures and how to set up the zone in a way that would work for the landowners and for Stillwater County. The Commissioners refused to meet, and to this day have never shown a bit of interest in why the landowners are concerned and what regulations make sense.

It is unclear why the Commissioners are taking this road. They have little public support from inside Stillwater County. At Judge Jones’ hearing on the lawsuit in Columbus, 56 people showed up to support the landowners and nobody was there for the Commissioners.

The Commissioners aren’t doing their jobs. Instead of trying to make new law on behalf of the oil and gas industry, what they should be doing is working with Stillwater landowners to protect the Beartooth Front.

David Katz

See post in newspaper

Posted in Shared Letters and Posts | Tagged , , , , , | 6 Comments

Beartooth Front landowners win first round of lawsuit

Judge Jones

Judge Blair Jones issued his first ruling today in the lawsuit Beartooth Front Coalition et al. vs. Board of Commissioners, Stillwater County. He ruled in favor of the landowners, denying the County’s motion for a summary judgment in their favor. The Beartooth Front landowners are suing the County because they believe the County unfairly denied their petition to establish a zone that would regulate oil and gas development along the Beartooth Front.

The County had argued that Montana state law preempts the county from regulating oil and gas drilling because that function is reserved by state law for the Montana Board of Oil and Gas Conservation.

The landowners argued that this motion is not “ripe” for consideration because there is no zone or regulations yet, so it is impossible to say whether any regulations are legal. Further, they strongly argued that there are many ways in which local governments are allowed to, and in fact do, regulate oil and gas activity.

Judge Jones considered only the first argument, ruling that this was sufficient to determine that the issue is not ripe for consideration by the court, and dismissed the County’s motion.

Local landowners showed up in force at the hearing in Columbus on July 26.

This is only the first round in what is expected to be a long fight, and much is yet to be determined. Kim Wilson, the landowners’ attorney, has indicated the next step is for the Beartooth Front Coalition to file their own motion for summary judgment, based on their key argument in the case: that the County’s refusal to consider the petition because it included only the signatures of surface real property owners and not minerals owners is not only counter to the County’s own procedures, but contrary to Montana law.

According to Wilson, that motion will be filed later this month.

You can find all public documents related to this case, as well as periodic updates, at the Beartooth Front Coalition website.

Related reading:
Beartooth Front landowners present hundreds of signatures to Stillwater County Commissioners to set up oil and gas zoning district (with video)
Do mineral rights have anything to do with citizen-initiated zoning in Montana?
BREAKING: Beartooth Front landowners file legal action against Stillwater Commissioners
Latest developments in the Beartooth Front Coalition lawsuit against the County
Landowners show up for hearing on Beartooth Front lawsuit

Posted in Legal | Tagged , , , | 3 Comments

How the Trump Administration is quietly stripping away environmental protections

While Donald Trump’s tweets make the cable news channels salivate on a daily basis, the outrage provides cover for the real work that the Administration is doing to strip away important environmental protections.

Make no mistake about it — Trump and company have done everything they can to roll back environmental protections that have been established over many decades. This has been done primarily through rulemaking and other administrative procedures, which are generally ignored by cable news but can have a huge impact.

While this excites his base, it is being done over the objections not only of environmentalists, but top energy industry executives, fossil fuel lobbyists, and lawyers. They have actively tried to persuade the Administration not to kill these regulations in a way that will backfire in practice. What they fear is a spate of lawsuits that will create market and regulatory uncertainty, and that is exactly what is happening.

Freezing emissions standards
On Thursday the Administration used the rulemaking tactic to freeze federal fuel efficiency standards developed during the Obama Administration. This will have a substantial impact on slowing adoption of electric cars and reduction of carbon emissions necessary to hold off climate change. It will also hurt workers and consumers. According to the announcement the rules change will cost thousands of auto worker jobs, and hurt consumers, who would pay less in gas costs if the standards were implemented.

Electric car demonstration at Montana State University

The expected rollbacks include:

  • Freezing the minimum standards for fuel efficiency at 35 miles per gallon in 2020 for six years, instead of having them rise to 50 mpg by 2026 under Obama’s plan.
  • Revoking a federal waiver given to California to establish standards that are tougher than federal rules, which a dozen states have also decided to follow. This goes beyond what automakers have requested, but this rollback will keep states from implementing their own rules.

You can be certain that California and environmental groups will file suit to block the rule change.

A long list
This is just the latest step the Administration has taken to roll back standards using administrative procedure, and follows a relentless onslaught of getting rid of environmental protections.

One thing is certain. The Administration is working to strip away responsible regulation in the name of being pro-business. If you are looking for help, look locally. That is the center of action, and the only way to get things done in the current political environment.

Below is a list of other steps the administration has taken over the 18 months since Trump’s inauguration. You’ve probably never heard of most of them, and many will be delayed or killed because of the action of industry and environmental groups. But it is clear that the Administration has no concern for climate change or preparing us for the changed environment of the future.

February 2017
Pruitt. Scott Pruitt is confirmed as EPA Administrator. Pruitt is somebody I started tracking long before he came to Washington. He is a low-level grifter who treated public office like a personal vending machine. His many scandals are covered elsewhere, but he had a negative impact on the EPA that will be felt for years.

Scott Pruitt

The EPA under Pruitt moved to end the Obama administration’s signature environmental policies. Pruitt stalled the Clean Power Plan, the Obama administration’s effort to regulate power-plant emissions; worked to weaken 2022-2025 car fuel economy standardsdelayed the “Waters of the United States” rule for two years; and wanted to downwardly revise the “social cost of carbon,” a crucial statistic when weighing the costs and benefits of fighting climate change.

Pruitt also advocated for the U.S. to leave the Paris climate accords—leaving the U.S. globally isolated on what scientists broadly agree is an environmental crisis.

In a letter recently published in the Journal of the American Medical Associationtwo Harvard University researchers argue that the Trump administration’s environmental policies, as championed by Pruitt, could kill 80,000 people per decade when compared to prior policy.

March 2017
Dismantle Obama climate protections. President Trump signs an executive order that begins to dismantle much of the work on climate change enacted by the Obama administration. The order takes steps to downplay the future costs of carbon emissions, walks back tracking of the federal government’s carbon emissions, rescinds a 2016 moratorium on coal leases on federal lands, and strikes down Obama-era executive orders and memoranda aimed at helping the country prepare for climate change’s worst impacts.

Keystone Pipeline. The State Department grants a permit for the construction of the Keystone XL pipeline. The 1,200-mile pipeline would connect Alberta’s oil sands to refineries in Texas. This hasn’t been built yet, and many activists are committed to preventing it.

May 2017
Advisory Board dismissed. The EPA dismissed several members of their advisory board, an 18-member group that reviews the research of EPA scientists. The group has been controversial in the past because of its divergent opinions on issues related to water contamination by oil drilling. In August the Administration also disbanded a 15-member advisory panel for the National Climate Assessment. In January, nine of the 12 members of the National Park System Advisory Board resigned because of Zinke’s refusal to meet with them. The dismissal of scientific advisors is clearly part of an anti-science agenda.

June 2017
Paris Climate Agreement. President Trump announces that the US is leaving the Paris Climate Agreement. Under the agreement, the US had voluntarily agreed to cut its emissions between 26 and 28 percent below 2005 levels by 2025. In abandoning that promise, the US effectively cedes leadership on the issue to other countries, particularly China.

August 2017
Ending flood-risk standard. The President signed an executive order ending federal flood-risk standards that incorporated rising sea levels predicted by climate science. The order claims it improves infrastructure decisions by streamlining the environmental review process, but what it does is remove the requirement that all federally funded projects hold to a Federal Flood Risk Management Standard based on the “best-available, actionable…methods that integrate current and future changes in flooding based on climate science.” With average sea level rising every year, ignoring this data is at best imprudent.

Ends health study. The Administration suspended a study of health risks to residents who live near mountaintop removal coal mine sites. The state of West Virginia had requested the study after researchers at the University of West Virginia found increased risks of birth defects, cancer, and premature death.

EPA enforcement lags. A report by an environmental group states that in its first six months of the Trump Administration, the EPA has filed fewer lawsuits against companies for breaking pollution control laws than the agency had during the opening months of the Clinton, George W. Bush, and Obama administrations.

Reduce sage grouse protections. As part of Administration  efforts to increase oil production on federal lands, Ryan Zinke recommends reprioritizing sage grouse protections, saying, “While the federal government has a responsibility under the Endangered Species Act to responsibly manage wildlife, destroying local communities and levying onerous regulations on the public lands that they rely on is no way to be a good neighbor.” These changes will take years to clear legal hurdles.

October 2017
Clean Power Plan. The Administration ends support for the Clean Power Plan, the centerpiece of the Obama Administration’s efforts to combat climate change. EPA Administrator Scott Pruitt says in a speech, “The War on Coal is Over.”

Gulf oil leases. The Department of the Interior said on Thursday it would hold a record-sized auction for oil and gas leases in the Gulf of Mexico, in an attempt to spark interest in offshore drilling. The sale would make 78 million acres available for mineral lease. The sale will be held later in mid-August 2018. Similar sales have produced remarkably little interest. Keep in mind that the Deepwater Horizon in the Gulf was one of the largest environmental disasters in world history.

December 2017

Ryan Zinke

Zinke declares bird deaths legal. The Department of the Interior decreed that it will no longer consider the accidental killing of birds—from eagles colliding with wind turbines to ducks zapped on power lines—a violation of the Migratory Bird Treaty Act (MBTA). This law, passed in the Wilson Administration and now a century old, is one of the oldest and strongest existing environmental protections. The new rules would protect companies like BP, which was responsible for the deaths of 600,000 – 800,000 birds in the Deepwater Horizon spill, and was fined $100 million as a result.

Climate change not a security threat. President Trump announced that the US will no longer regard climate change by name as a national security threat. The Administration’s national security strategy discusses climate change only within the context of energy policy.

Reduction of national monuments. Trump announced that he would reduce the 1.35-million acre Bears Ears National Monument, created by President Barack Obama in late 2016, by 85 percent. The president also said he would cut the 1.88-million acre Grand Staircase Escalante National Monument, designated by President Bill Clinton in 1996, nearly in half. A number of suits have been filed to stop the change.

January 2018
Loosened air pollution regulations. In a memo, the EPA dropped “once in, always in” (OIAI), a Clinton-era EPA policy that aimed to lock in reductions of hazardous air pollution from industrial sources. Prior to the change, companies that were required to reduce emissions were required to continue to reduce emissions permanently. Under the new policy, companies that made an initial minimal emissions reduction would then be exempted from the program.

Censorship of web sites. A report reveals that in the first year of the Trump administration, U.S. government websites have been systematically altered to cut mentions of climate change.

February 2018
Cuts to Department of Energy. The Administration budget proposal includes cuts to Department of Energy funding for renewable energy and energy efficiency initiatives  by 72 percent. Congress wasn’t having it. The final budget passed in May set aside increased funds for clean energy programs.

March 2018
FEMA gets rid of “Climate Change.” FEMA strikes the term “climate change” from its strategic plan. This change comes after a year of sharply rising disaster costs due to extreme weather associated with climate change. The plan discusses the fact that future disaster costs are expected to rise, but doesn’t mention a cost.

April 2018
Science “Transparency.” EPA Administrator Scott Pruitt proposed a rule that would only allow the agency to consider in its rule making scientific studies for which the underlying data are made available publicly. In a letternearly 1,000 scientists (many of whom used to work at the EPA) asked Pruitt to abandon the proposal, which they said “would greatly weaken EPA’s ability to comprehensively consider the scientific evidence.” Much of the data that would be excluded is based on reviews of personal health information, which is often not publicly available because of privacy laws or practical challenges.

May 2018
Climate Monitoring Program. The Administration cut NASA’s Carbon Monitoring Program,  which funds pilot programs intended to improve the monitoring of global carbon emissions. The program was critical to monitoring the progress of countries in meeting the requirements of the Paris Climate Agreement.

July 2018
Endangered Species. The Administration proposed making key changes to the 1973 Endangered Species Act, that has protected wolves, bald eagles, sage grouse, grizzlies and other species from extinction. This change would allow a discussion of economic impacts in listing a species as endangered or threatened and give regulators more latitude to avoid designating critical habitat for threatened or endangered species.

Posted in Climate change, Politics and History | Tagged , , , , | 4 Comments

Landowners show up for hearing on Beartooth Front lawsuit

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.

Local landowners showed up in force to observe the hearing.

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
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.

Posted in Legal | Tagged , , , | 12 Comments

Action Alert: Please attend hearing on Stillwater County landowner lawsuit, Thursday, July 26, 1:30pm

Stillwater County Courthouse. Click for directions.

The next step in the Beartooth Front Coaltion lawsuit against the Stillwater County Commissioners is a hearing in front of Judge Blair Jones. The hearing will be held at the Stillwater County Courthouse in Columbus on Thursday, July 26 at 1:30 pm.

The Beartooth Front landowners filed suit against the Commissioners in February 2018 after the County declined to consider their petition to form a citizen-initiated zone. The landowners filed the petition, which included the signatures of over 550 landowners, in February 2017.

According to the petition, the zone would establish reasonable regulations to ensure that future oil and gas drilling in the 83,000 acre area covered by the zone would protect  the “rural residential and agricultural character of the area.” It would not ban oil and gas drilling (see zone map).

The hearing concerns the County’s request for a summary judgment in the case. They have argued that the zone the landowners have petitioned for cannot be formed because only the Montana Board of Oil and Gas has the power to regulate oil and gas, and the County should be granted a judgment in its favor. The landowners have countered that there are, in fact, many ways in which oil and gas is regulated by other entitites, and, as a result, the suit should go forward.

As a matter of fact, there are at least 111 citizen-initiated zones in Montana, several of which establish the same kinds of regulation over oil and gas drilling that the landowners seek to create.

What is unique about this case is that the Commissioners, after notifying the landowners that they had reached the required signature threshold of 60% of the landowners in the proposed zone, decided that 60% of the signatures of minerals owners were required as well.

Requiring the signatures of minerals owners is a significant departure from existing practice in the state, and would be a blow to landowner rights going far beyond oil and gas regulation if the County is successful. No citizen-initiated zone formed in Montana has ever required the signatures of minerals owners. If the County is successful in the suit, it could mean the effective end of the right of Montana landowners to petition to control what happens on their properties.

Why it is important for you to attend the hearing
This step is the first of several hearings in this case. If the landowners are successful in their suit, the ultimate outcome will be for the Commissioners to hold a hearing to consider the petition. It is critical for them to see evidence at every step of the way that landowners stand firm in their demand that their rights be protected.

Please come if you can. I hope to see you there.

The County is represented by the Budd-Falen firm of Cheyenne, Wyoming, a radical firm that has represented clients such as Cliven Bundy, and is a leading voice in opposing regulation and advocating for the disposal of federal land. The landowners are represented by David K. W. Wilson of Helena, whose practice involves representing Montanans concerned about protecting their constitutional and environmental rights.”> The Beartooth Front is a unique area that is vulnerable to oil and gas drilling. It needs to be protected.


[/caption]Read more
Beartooth Front landowners present hundreds of signatures to Stillwater County Commissioners to set up oil and gas zoning district (with video)
Do mineral rights have anything to do with citizen-initiated zoning in Montana?
Stillwater Commissioners turn their backs on locals who pay their salaries, support unknown outsiders
Stillwater County Beartooth Zone: the Commissioners’ position is not only illegal, it is completely undemocratic
BREAKING: Beartooth Front landowners file legal action against Stillwater Commissioners
Stillwater residents give County Commissioners an earful on proposed policy (with video)
Media coverage of Beartooth Front Coalition efforts to preserve landowner rights
Latest developments in the Beartooth Front Coalition lawsuit against the County

Posted in Legal | Tagged , , , | 2 Comments

Ryan Zinke is at it again: BLM offers 118 Montana parcels for December oil and gas lease

As part of Ryan Zinke’s transparent effort to dismantle the BLM and open public lands to oil exploration, the agency has offered up 118 Montana parcels to be sold at auction next December.

The BLM offers leases for sale three or four times a year, and the number of Montana leases has increased dramatically since Zinke became Secretary of the Interior. Between 2013 and 2016, each BLM lease sale included a small number of Montana leases (and some none at all), but since Zinke took office each sale has included between 100 and 200 Montana leases.

Ryan Zinke with Vice President Pence in Nye, Montana last year, with Beartooth Mountains in the background. If Zinke has his way, this landscape will include oil rigs from BLM leases.

Along the Beartooth Front, there are several Carbon County leases and none in Stillwater County included in the list for December sale. Stillwater County leases were deferred at the last minute in the March sale.

Ignoring safeguards
Achieving this rapid pace has required the BLM to ignore safeguards built into the process since the National Environmental Policy Act (NEPA) was passed in 1970. Leases typically require an environmental impact analysis, but the BLM has bypassed this step for many of the leases.

In February, the Department of Interior sought to speed up the approval process for oil and gas development on public lands by encouraging the use of “determinations of NEPA adequacy,” a BLM policy where the agency doesn’t have to carry out environmental studies if previous studies would apply. The National Environmental Policy Act requires environmental study of federal projects as part of the public process.

Also, a June 23 Department of the Interior memorandum reversed a rule requiring an environmental review of oil wells on non-federal land if they end up drilling beneath federal land.

Lawsuits filed
The push to expedite lease sales has led to a series of lawsuits to block the sales. A court order blocked 223 lease sales in June after the Western Organization of Resource Councils (WORC) successfully challenged additional resource action in the Powder River Basin. Since that ruling, WORC has argued for a hold on new leases in the area until the BLM updates its old management plans (RMP) with new information on pollution and climate change.

As a result of this suit, all leases involving the Billings Field Office have been deferred for the December sale until the Billings RMP can be updated to protect these areas. This includes the proposed leases in Carbon County.

There is another suit that may affect the sales, and it is one in which I am personally a plaintiff. It challenges leases sold in December 2017 and March 2018. The suit claims that the BLM failed to prepare an environmental assessment that looked at possible groundwater contamination and greenhouse gas emissions.

Montana BLM proposed December lease sales. Click for link to interactive map.

This is just not necessary
What is particularly upsetting about this is that these lease sales are unnecessary. The leases are not in the middle of the Bakken or other major extraction areas. They are mostly in undeveloped areas, often in drainage areas near rivers like the Stillwater, the Clark’s Fork, the Tongue and the Yellowstone, and are cheap enough so that speculators can purchase them and hold them for ten years.

And not to put too fine a point on it, for those of you interested in the Beartooth Front Landowners’ suit against the Stillwater County Commissioners, the Commissioners have hired a law firm headed by Zinke’s top choice to run the BLM, who has consistently advocated to get rid of federally held land. If not coordinated, these things are certainly happening in concert.

What you can do
You can find the document containing the list of proposed Montana leases at the BLM web site. You can file a comment about any one of the them (or group of them) by clicking here. Instructions for commenting can be found here.
Note that the comment period ends on July 20.

Commenting does make a difference. The Stillwater County deferrals in March occurred in part because so many people commented.

Background information:
Action Alert: Public comment period on BLM oil and gas lease sale in Stillwater County ends April 9
Important update: Lease of BLM parcel near Dean
Action Alert: Public comment period for BLM leases on the Beartooth Front in northern Wyoming ends Monday, February 23
ACTION ALERT: Please write by September 20 to keep BLM from selling oil leases in Stillwater County
Thanks to all who wrote: BLM will not sell leases on the Beartooth Front next week




Posted in BLM leases | Tagged , , | 1 Comment

Latest developments in Beartooth Front Coalition lawsuit against Stillwater County

Stillwater County’s out of state law firm wasted no time in responding to the Beartooth Front Coalition’s lawsuit against Stillwater County by filing a motion to dismiss the suit. The petitioners have responded, and the case is in motion. This post summarizes the state of the case so far, with links to the court documents.

The case is assinged to Red Lodge Judge Blair Jones. Billings Gazette photo.

The lawsuit: A review
In 2013, in response to an announcement from a West Virginia company that it planned to “bring a little bit of the Bakken” to the Beartooth Front, local landowners began working on collecting signatures to form a citizen-initiated zone. The goal of the zone was not to stop drilling, but to enact common sense regulations that would protect water, soil, air, and the ranching/agricultural economy in southern Stillwater County. The process defined in Montana law is that the landowners must collect the signatures of 60% of the real property owners in the area and present them to the Commissioners, who will form a zone if they determine “the public interest or convenience” requires it.

The landowners sought advice from the Commissioners, who refused to engage or provide guidelines for collecting signatures. In November, 2015 they presented the signatures of what they believed were 60% of the landowners to the County Clerk. After some initial feedback from the Clerk they had to redo about 100 signatures. They did that, and resubmitted signatures in February, 2017. The County Attorney provided an explanation on how the signatures would be counted, and in August, 2017 they notified the landowners that they had exceeded the 60% threshold.

All’s well that ends well? Not so fast. The County Attorney, after discovering that the petitioners had reached the threshold, decided that “real property owners” meant not only the surface owners, but the mineral owners too. Her reasoning ignored the fact that there are at least 111 existing citizen-initiated zones in Montana, and not a single one has ever required the signatures of mineral rights holders. Finally, in January, 2018, the Commissioners accepted the County Attorney’s reasoning and rejected the zone.

The landowners sued in February, 2018, arguing that requiring the signatures of minerals owners is a misapplication of the law.

Commissioners file for dismissal of the suit
On May 1 Budd-Falen, the high-priced Cheyenne law firm, filed a motion to dismiss the suit. They did not respond to the question of whether the Commissioners were justified in requiring the signatures of minerals owners, but instead claimed that the zone itself was an illegal application of the law. Their argument was twofold:

  1. Stillwater County has no legal ability to regulate oil and gas activity. Montana law reserves that function exclusively to the Montana Board of Gas Conservation.
  2. The reference materials submitted by the petitioners when they originally submtted their petition in November, 2015 included provisions that fall outside the purview of counties.

For these reasons, they claimed in their brief, the County cannot legally even consider the petition to form the zone, and for that reason the suit should be dismissed.

The County’s claims in their motion to dismiss are nothing new. They are straight out of the oil and gas industry playbook. Their argument goes like this: in Montana, only the Board of Oil and Gas Conservation has the right to regulate oil and gas; counties do not have the right to do so. As a result, the reference materials the landowners put forward when they submitted their petition are illegal.

We saw the same argument in the recent Carbon County citizen-initiated zoning case, and the Commissioners there had the good sense to dismiss it. The letters filed by two attorneys involved summarize the argument, and the reasons why it is not correct. Recommended reading if you’re interested in the details of this case.

The area of the proposed zone along the Beartooth Front. What the landowners are trying to preserve

Petitioners response
On May 14 the Beartooth Front landowners filed their response, requesting a hearing and asking the judge to dismiss the County’s motion. A summary of their argument:

  1. Montana law does not preclude counties from regulating land use related to oil and gas activity. There are specific areas in which counties may not establish regulations — grazing rights, timber rights, injection wells, for example — but there is no specific prohibition for land use related to oil and gas. In fact, in their Permit to Drill Form, the Board of Oil and Gas specifically asks whether local permits are required (#6 on reverse).
  2. Of the existing citizen-initiated zones in Montana, several have been approved that do exactly what the Beartooth Front landowners propose to do — regulate land use related to oil and gas extraction. Examples include the Bridger Canyon, Bozeman Pass, Reese Creek, and South Cottonwood zones in Gallatin County, which have all been operational since the mid-2000s.
  3. The reference materials cited as illegal by Stillwater County are not regulations at all. Only the Commissioners have the power to establish a zone and approve regulations. Since they have not done so, the materials suggested by the petitioners are just suggestions, not regulations.

Landowners confident
The Commissioners’ motion to dismiss is just a sideshow. Landowners are confident that Judge Jones will dismiss this motion, as it has no basis in Montana law. Perhaps it does in Wyoming.

Once this motion is dismissed the Judge can move on to the real issue in the case, which is the Commissioners’ decision to require the signatures of mineral rights owners.

Stay tuned…

Download the court documents:
Landowners original lawsuit (filed Febuary 23, 2018)
County’s motion for dismissal (filed May 1, 2018)
Landowners response and request for hearing (filed May 14, 2018)


Posted in Legal | Tagged , , , , , | 3 Comments

Why is Stillwater County spending tens of thousands of dollars on high priced out of state lawyers?

The Stillwater County Commissioners have retained a high-priced out-of-state law firm to defend a lawsuit filed against them by Beartooth Front landowners. Over 60% of the landowners in the area have petitioned the County to set up a citizen-initiated zone to regulate oil and gas drilling, in accordance with Montana law.

Why would they hire a firm from out of state? And why would they hire a firm with rates much higher than would be charged by an expert Montana firm? It’s impossible to tell for sure. There has been no public notice of any contractual relationship with an outside firm. A look at recent Commissioner agendas and meeting minutes makes no mention of a contract.

But a look at the facts shows that the Commissioners have gone out of their way not only to deprive local landowners of their rights, but to establish a precedent that will end citizen-initiated zoning in Montana. In doing so they will pave the way for the oil and gas industry to operate without regard for local communities. This agenda dovetails perfectly with the national agenda of the oil and gas industry.

Not just any law firm
There are certainly plenty of local resources available to Stillwater County. There is an elected County Attorney paid for by taxpayers who has been representing the County on this matter to date. Taxpayers also pay for membership in the Montana Association of Counties (MACo), which has provided legal advice on zoning in the past. And there are plenty of attorneys in the state who specialize in zoning and land use.

Karen Budd-Falen

But the firm they hired is not just any old expensive out-of-state law firm. The firm is Budd-Falen, located in Cheyenne, Wyoming, one of the preeminent property rights law firms in the country. They are famous for representing ranchers in disputes with federal land agencies like the Bureau of Land Management (BLM). They consistently oppose regulation and advocate for the disposal of federal land. Karen Budd-Falen, the lead attorney for the firm, has achieved a national profile by taking unusual, sometimes extreme landowner rights cases in opposition to federal agencies.

She has been prominently mentioned as Interior Secretary Ryan Zinke’s top choice to become Director of the Bureau of Land Management  (BLM). Zinke has consistently advocated for the sale of public lands to private interests and opening them up to oil development. As a Congressman, he voted for a House bill that would allow state leaders to manage some federal parcels, and later for a bill that would change accounting to make it easier to sell public lands. In March of this year, as Interior Secretary, Zinke made the decision to shrink Bears Ears National Monument in Utah by two million acres to open it up for oil and coal extraction. As we have seen, the Trump Administration has dramatically increased the number of oil and gas leases on BLM lands  over the last year.

There has not been a BLM director since Trump took office, but the possible appointment of Budd-Falen would fit right in with the Trump/Zinke plans to dismantle the BLM and open public lands to oil exploration, in the same way Trump is attempting to destroy the EPA by putting it in the hands of Scott Pruitt.

The cases that have propelled Budd-Falen to fame have involved taking up the cause of opening public property to private ownership, often in extreme ways. Some examples:

  • In the 1990s, she represented the infamous Cliven Bundy and other ranchers in a dispute with the federal government over grazing land.
  • She has written controversial land use plans in New Jersey and New Mexico that describe federal control as the enemy of ranchers. In the Catron County, New Mexico plan she wrote, “The presence of federal and state lands in Catron County adversely impact privately owned lands, obstruct and weaken the institution of private property rights, threaten custom and culture, and erode and deny the right of families, communities, and county government to self determine their fate, security, and well-being through democratic means (p. A-28).”
  • When she was hired by Ravalli County to write a land use plan and invited to speak on property rights issues, her presence was so objectionable to residents of Hamilton that 100 protesters showed up in opposition.

No, this is no ordinary law firm. The Stillwater County Commissioners have purposely hired a high-priced out-of-state firm with a national reputation for advocacy for the development of natural resources on public lands to fight against local landowners.

It is ironic that the County is working with this firm to strip local landowners of their right under Montana law to petition to determine what happens on their properties.

The taxpayer cost for a two-day, 495 mile trip from Cheyenne to Columbus would be about $7000. (click to enlarge)

What is the cost to Stillwater County taxpayers?
Firms like Budd-Falen don’t come cheap, but it’s impossible to tell what their rate is because Stillwater County has not been transparent about the contract. We can get an indication of the firms rates however, because other counties have published their rate structure. When Ravalli County hired the firm in 2013, their rate structure was published online. Five years ago they paid Karen Budd-Falen a rate of $250/hour, with a slightly lower rate for attorneys with less experience. Based on general increases in legal fees over the last five years, today that top rate would be about 20% higher, or $300/hour.

Expenses — copying, mailing, mileage, hotel, meals — would be added to that. Based on the prevailing reimbursement rate for mileage, a single 990-mile round trip from Cheyenne to Columbus for a three-hour meeting would cost taxpayers $540 for mileage alone! Add in hotel, meals, and other expenses, it will cost taxpayers about $1000 in expenses for a single two-day trip from Cheyenne to Columbus. Add in the attorney fees, and three-hour meeting would cost about $7000. Had the County hired a Billings attorney, the total taxpayer cost for a three-hour meeting with round trip would be about $1550, including expenses.

Legal experts I talked to suggest that the cost of defending the Beartooth landowners’ suit at those rates would be as much as $100,000 if there is an appeal to the Montana Supreme Court. That’s no small hit to the County budget.

This wasn’t necessary
The important thing to note in all of this is that the Stillwater Commissioners didn’t have to do this. The Beartooth landowners begain working on collecting signatures to petition for this zone in 2014. They repeatedly asked the Commissioners to meet with them to understand the goals of the petition and to provide guidelines for the collection of signatures, but the Commissioners refused to engage.

Then, after the petition signatures were collected and it became clear that the petitioners had achieved the overwhelming support of the landowners in the proposed district, the County Attorney established an unprecedented standard — that the petitioners needed to get the signatures not only of the surface landowners, but the underlying mineral rights owners as well. This standard is unprecedented in Montana history. There have been at least 111 citizen-initiated zones implemented all over the state, some with the exact same goals as the Beartooth Zone, and not a single one has ever required the signatures of minerals owners.

Had the Stillwater Commissioners done what county commissioners all over the state — including their predecessors in Stillwater County — have done for the last 65 years, they could have been working collaboratively with local landowners rather than fighting them in court. This could have been done at no cost to the County.

It’s important for readers to understand how easy this would be. The petitioners are not trying to ban oil and gas drilling — they are just asking the Commissioners to put regulations in place that recognize the challenges of drilling in the fragile areas along the Beartooth Front. The petitioners don’t make the regulations. The County controls the regulatory process, with input from the landowners. A collaborative process with reasonable compromise on both sides would allow drillers to drill and protect the area.

The Commissioners need to explain themselves
There is no question what the Commissioners are trying to do here. By introducing a standard that gives minerals owners the same land use rights as surface owners, and by going beyond Montana borders to hire a law firm with a national reputation for opposing regulation and advocating for the disposal of federal land, they are trying to do much more than take away the rights of local landowners. They are trying to establish a precedent that would take away the rights of all Montana landowners to determine what happens on their own properties by doing away with citizen-initiated zoning.

This agenda matches exactly the oil and gas industry’s national strategy of doing away with any local control of their activities.

The Commissioners need to explain why they made the decision to go all the way to Cheyenne to find a firm that is leading a national agenda for drilling on public land and the absence of common sense regulation that protects local water and an economy based on farming, ranching, and tourism.

Are they being influenced by outside organizations or individuals who stand to benefit economically from oil and gas development or allowing any type of local input into regulating oil and gas? Why have they turned their backs on the grass roots activism of local landowners?

And why have they failed to be transparent in revealing the nature of their contract with this firm? Taxpayers have a right to know how much they are paying, or whether they are paying the cost at all. Is some outside agency paying the cost or is the firm providing its services pro bono? If so, what is the County expected to do in return?

Citizens have a right to demand transparency from the local officials they elect and whose salaries they pay.

More information:
Beartooth Front landowners file legal action against Stillwater Commissioners
Read the lawsuit
Wyofile: Karen Budd-Falen: Provacateur or Protector
Three reasons Karen Budd-Falen is unfit to lead the Bureau of Land Management


Posted in Legal | Tagged , , , , | 11 Comments

Media Coverage of Beartooth Front Coalition efforts to preserve landowner rights

The efforts of landowners in southern Stillwater County to guarantee long-term protection of their land has generated a lot of media coverage locally and across Montana over the last several weeks. The reason is clear — the landowners’ lawsuit against the County has long-term implications not only locally, but for landowner rights across the State.

In addition to this coverage, local residents deluged the Commissioners with dozens of letters opposing their position on citizen-initiated zoning.

This post provides links to published articles and letters.

News Coverage
March 22 – Stillwater County News, CIZ petitioners take on proposed petition guidelines
by Mikaela Koski (pdf1, pdf2)
“Your proposed policy does not enable ‘We the People’ in this room, but instead insures that we will never have a voice in your government. – Charles Sangmeister”

March 7 – Preserve the Beartooth Front, Stillwater residents give Commissioners an earful on proposed policy (video)
“As you would expect, people took the opportunity to express their indignation, not only about the proposed policy, but about the pattern of excuses, inaction, and delay that had brought them to this point.”

March 6 – Last Best News, Residents pan county’s proposed zoning guidelines
by Linda Halstead-Acharya
“Bill Peterson of Nye …pointed out what seemed obvious to everyone present. ‘I thought it was interesting that there were no proponents, he said.”

March 1 – Stillwater County News, Citizen Initiated Zoning Petition Battle Reaches Court, by Mikaela Koski
“(The)  lawsuit…argues that the group was never told, throughout the 3-year petition process, that the signatures of mineral rights owners would be necessary for the petition.”

February 28 – Billings Gazette, Petition to regulate oil, gas development in south-central Montana was unfairly denied, landowners’ lawsuit claims, by Matt Hudson
“(N)o other citizen-initiated zoning district in Montana has required signatures from mineral rights holders. Missoula and Ravalli counties both have dozens of these districts.”
Carried in Helena Independent Record and the Missoulian.

February 27, Yellowstone Public Radio,  Residents Suing Stillwater County, Concern Over Possible Oil Drilling Near Bearthooth Front.
“’It’s not unusual to be working with a mineral extractor or an oil extractor to come up with ways to address problems that might arise,’ says Bill Hand of Nye.”

2/27/18 – Last Best News, Citizens Sue Stillwater County Officials Over Zoning Issue,
by Ed Kemmick
“Stillwater County residents had used citizen-initiated zoning once before, when the Stillwater Mine was being developed almost 40 years ago. The district established then was used to regulate mining activities and later led to the legally binding Good Neighbor Agreement between the mine and area residents.”

2/8/18 – Stillwater County News, Petition Issue Pointing Toward Litigation
by Mikaela Koski
“Our goal with the Beartooth Front CIZ petition is to ensure southern Stillwater County’s unique quality of life and agricultural prosperity will be preserved and passed down to future generations”

2/1/18 – Stillwater County News, Petition Deemed Invalid, Possible Lawsuit Against County in the Works by Mikaela Koski
“Joan Brownell, a Fishtail resident, gave a detailed timeline of the four-year petition process in which the Beartooth Front Group has been involved. This time period included instances of the petitioning group receiving changing instructions from the county on how to collect signatures. 

Guest Opinions
March 7 – Billings Gazette, Stillwater commission forces lawsuit to protect our rights
by David Katz and Lana Sangmeister, Nye
“In denying the petition in January, the commissioners turned their backs on years of grass roots effort by local taxpayers trying to protect their land. Their decision jeopardizes the rights of landowners across Montana.”

Letters to the Editor
March 15 – Stillwater County News, Ex-Commissioner Weighs in on CIZ
by Dennis Hoyem, Nye
“I asked the Commissioners to suspend ‘political expediency’ in their information gathering and deliberations because of its typical and frequent shortcomings.”

March 8 – Stillwater County News, “What Tangled Webs We Weave…
By Dan Burkhart, Fishtail
“Let’s insist they do the fair thing and create a zoning district more than a majority of residents in the area want. Let’s not let extractive resource companies treat us like third world populations where the potential for profit outweighs the public good.”

February 8 – Stillwater County News, “Disappointing Petition Decision
By Frank Willett, Fishtail
“Our commissioners put a ridiculous task in front of the petitioners in order to deny the petition. They apparently view petitioners as a force to oppose rather than citizens to help.”

February 8 – Stillwater County News, “Stillwater Commissioners Turn Backs on Beartooth Landowners” by David Katz, Nye
“Beartooth Front landowners are trying to establish reasonable regulations on oil and gas drilling to preserve their community for the future….It’s hard to imagine why the Commissioners want to spend precious resources to prove a fantasy legal theory in court against (them).”

Posted in Community Organization, Shared Letters and Posts | Tagged , , | 1 Comment