MT SupCo reverses AG decision, says river protection initiative can go out for signatures – Independent Record

The state Supreme Court said in a Wednesday order the Montana Attorney General erred in halting a ballot initiative from going out for signature-gathering.

The proposed ballot initiative aims to add new environmental protections to stretches of the Gallatin and Madison rivers.

The courts unanimous opinion, written by Chief Justice Mike McGrath, also indicated that the attorney general lacks the authority to reject a proposed ballot initiative on the basis that it amounts to a government taking of private property. And in a nonbinding, concurring opinion, McGrath went further, writing that the authority to determine the constitutionality of ballot proposals rests solely with the courts not with the AG.

The court directed Secretary of State Christi Jacobsen to approve a final signature petition form to allow the environmental groups proposing the initiative to start collecting signatures to place it on the ballot. The groups have until June 17 to collect the 30,180 signatures needed to put the proposal to a statewide vote in the 2022 general election. They also need signatures from 5% of the voters in at least 34 of the states 100 House districts.

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Ballot Initiative 24 would apply Montanas Outstanding Resource Water designation to 35 miles of the Gallatin River, from the Yellowstone National Park boundary to the Spanish Creek confluence, and to about 55 miles of the Madison River, from Hebgen Lake to Ennis Lake. It would also amend the designation to prohibit temporary pollution sources. The law authorizing the designation currently applies only to year-round sources of pollution.

Knudsen had rejected the proposal in late January, following his offices legal sufficiency review. He wrote in a legal memo that the ballot initiative would amount to a private property taking under the Fifth Amendment of the U.S. Constitution and Article II, Section 29 of the Montana Constitution, without providing compensation to potentially affected property owners.

Cottonwood Environmental Law Center, one of the groups backing the measure, filed a petition with the state Supreme Court challenging the AG offices finding last month. Cottonwood executive director John Mayer said the proposal is aimed at combating water quality degradation in the two rivers.

Last year, Republican lawmakers passed a law revising the AGs role in determining the legal sufficiency of a proposed ballot initiative. Previously, the AGs office could only block a proposal if it didnt comply with constitutional and statutory language for submitting ballot issues to voters.

House Bill 651 now requires Knudsen to determine the substantive legality of the proposed issue if approved by the voters, giving his office broader authority to reject proposals.

The seven justices unanimously ruled that Knudsens legal finding misapprehends and misapplies the law that applies to constitutional takings and contradicts the statutory scheme creating the attorney generals review process.

While the federal and state constitutions include provisions prohibiting the government from taking private property without some degree of just compensation, the justices wrote that the environmental groups proposal doesnt match up with how previous court decisions have defined takings.

There are two ways a governments action can rise to the level of a constitutional taking, they wrote either through a permanent physical invasion of property or by an action that eliminates all economically beneficial uses of the property.

Knudsen had argued that in order for I-24 to be constitutional, it would have to compensate the property owners who would be affected by the Outstanding Water Resource designation.

But the Attorney General provided no authority for this proposition, and as a matter of takings law, it is incorrect, the justices wrote. They added that nothing in the proposed initiative prevents affected property owners from suing the state to recover damages.

The justices opinion goes further, writing that Knudsens determination shows the impropriety of using an opinion about regulatory takings to determine if a ballot issue is insufficient.

In addition to the new legal sufficiency changes added by the Legislature last year, Republican lawmakers also gave the AG the power to add a warning label to signature petitions for proposed ballot initiatives that could hurt business or private property interests. Knudsen did just that, in addition to blocking the proposal based on his belief that its unconstitutional.

It would not make sense for the law to call for an advisory statement (which would be appended to a valid petition) to be warranted for a reason that would also render the petition invalid, the justices wrote.

Two other conservation groups, Gallatin Wildlife Association and Montana Rivers, are also backing I-24 and both signed onto the petition as plaintiffs.

"We are extremely gratified that the Montana Supreme Court overruled the Attorney General, Gallatin Wildlife Association President Clint Nagel said in a press release Wednesday. This is a win for all citizens of the last best place.

Mayer, with Cottonwood, said despite whats amounted to a six-week delay to start gathering signatures for the petition, he expects to get enough residents to sign on by the June deadline.

Everyone in Montana wants clean water, Mayer said. Not that many people want rich out-of-staters building vacation houses and destroying our water.

But theres a growing list of business groups and local officials, especially those in and around Big Sky, who are pushing back against the proposed initiative.

On Wednesday, the Montana Chamber of Commerce issued a statement in opposition to I-24, referring to previous attempts by conservation groups to add the Outstanding Resource Waters designation to part of the Gallatin.

The designation is the highest water designation that is typically reserved for extremely sensitive areas like national parks, and the (Department of Environmental Quality) and the courts have repeatedly declined to make such designations in this area, the group wrote, adding that it would hurt job creation and halt workforce housing progress.

In a statement, AG spokesman Kyler Nerison argued that the ruling was consistent with Knudsens finding that the ballot initiative would bypass the normal review process established in state law.

Instead of coming to this obvious conclusion, the Supreme Court justices engaged in legal gymnastics to align with radical environmentalists and maneuver toward an outcome that even two liberal Democrat governors rejected, Nerison wrote.

Questionable legal authority

But in a separate, concurring opinion, McGrath went even further in questioning Knudsens legal authority under the new law. He wrote that only the courts have the power to reject a proposed ballot initiative for running afoul of the constitution.

McGrath wrote that the attorney general lacks such power, and the Legislature equally lacks the power to confer it upon him.

That portion of the courts opinion was co-signed only by Justice Dirk Sandefur, and isnt binding as a legal precedent.

Citing a 1986 state Supreme Court opinion regarding a proposed constitutional initiative, he noted that the court has taken a careful approach to those issues in the past: We should hesitate to 'interfere with the constitutional right of the people of Montana to make and amend our laws through the initiative process.'

Anthony Johnstone, a constitutional law professor at the University of Montana, said that while the courts have at times tossed out initiative proposals that are clearly unconstitutional, the right of Montanans to directly engage in the legislative process is an area where theyve historically treaded lightly.

No one can go into the Legislature to challenge a law as unconstitutional before it gets passed,Johnstone said.

He added that the constitutionality of I-24 can still be challenged if it makes it onto the ballot and is passed by the voters.

Because theres a final bite at the apple if it actually becomes law, thats usually been a reason not to scrutinize the initiative as closely before its in effect, Johnstone said. Partially because you dont actually know how its going to work until its in effect.

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MT SupCo reverses AG decision, says river protection initiative can go out for signatures - Independent Record