Proposed Ballot Initiative 24 Legally Insufficient – Explore Big Sky
The proposed measure sought strict protections for the Gallatin and Madison rivers
By Bella Butler EDITOR-IN-CHIEF
HELENA — A ballot initiative proposed by a Bozeman-based legal center that would have granted sweeping protections to parts of the Gallatin and Madison rivers was found to be legally insufficient in a memorandum filed Jan. 28 by the Montana attorney general. Several Big Sky organizations filed comments against the measure, expressing concern about its impact on Big Sky’s development opportunities.
Ballot Initiative 24, proposed by Cottonwood Environmental Law Center with Montana Rivers and the Gallatin Wildlife Association, proposed an exceptional resource water designation for the section of the Madison River between Hebgen and Ennis lakes and the section of the Gallatin River between the boundary of Yellowstone National Park and the confluence of Spanish Creek.
An ORW designation provides the greatest protection possible under state law, according to the Montana Code Annotated. State law enacted in 1995 granted the ORW designation to state surface waters located entirely within the boundaries of national parks and wilderness areas and established a process for other waters of the state obtain the same designation if they meet the conditions on the basis of several criteria.
The petition for the ballot initiative was submitted to Montana Secretary of State Christi Jacobsen in December. Jacobsen then referred the initiative to Attorney General Austin Knudsen on December 29 for a legal sufficiency review. Knudsen issued a memorandum Jan. 28 concluding that the proposed ballot measure was legally insufficient on the grounds that it “could result in regulatory uptake” and “is likely to cause substantial material harm to one or more business interests in Montana.”
“The legal sufficiency review process is required under state law to determine whether the petition complies with statutory and constitutional requirements governing the submission of the proposed question to voters, the substantive legality of the question proposed if it is approved by voters, and if the proposed question constitutes an appropriation,” wrote Emilee Cantrell, press secretary for Attorney General Knudsen, in an email to EBS. “In this case, the proposed ballot measure does not meet the legal requirements of sufficiency.”
During the legal review process, the attorney general’s office received dozens of comments on the proposed initiative and, according to Cantrell, none of the comments from interested parties were in favor of the measure. Several comments were submitted by Big Sky organizations, including the Big Sky and Gallatin Canyon County Water and Sewer Districts, the Big Sky Community Housing Trust, and the Big Sky Chamber of Commerce. Other opponents included the Madison County Commission, Gallatin County Commissioner Joe Skinner, the Bozeman Chamber of Commerce, and the cities of Manhattan and West Yellowstone, among others.
Brad Niva, CEO of the Big Sky Chamber of Commerce, said the proposed ballot measure prompted an emergency meeting of the chamber’s board of directors as the organization struggled to understand the impact that the measure would have on Big Sky’s business world.
Niva said there were two main considerations that led the chamber to submit a letter of objection and to ask its member companies to do the same: the potential negative impacts on Big Sky’s business community and a limitation from the Montana Department of Environmental Quality Authority. .
“We know this community is growing,” Niva told EBS on Feb. 4. potential to literally shut down everything that happened here in Big Sky. This includes, he said, the development of local affordable housing.
The Big Sky Community Housing Trust echoed this concern in its letter to the Attorney General.
“While our organization has tried several creative approaches to increase the availability of housing for local workers, it is imperative that we continue to pursue the construction of additional dedicated workforce housing units to support our community of Big Sky resort,” the letter from the housing trust said. “Ballot No. 24 will probably prevent that from happening.”
“An ORW designation will prevent DEQ from issuing sewage disposal permits in affected areas, which will significantly limit development,” Knudsen wrote in his Jan. 28 memo.
The memo noted “unsuccessful efforts by proponents of the measure to effect the changes they seek through the administrative and judicial process.” These efforts included a 2001 proposal to give ORW designation to the section of the Gallatin River, which Cottonwood renewed in 2018, as well as a 2021 lawsuit filed against the Montana DEQ by Ballot Initiative 24 bidders who challenged the agency decision. The court upheld DEQ’s action in the 2021 lawsuit, according to the memo.
Montana law states that the DEQ cannot authorize a new or increased discharge from a point source that would result in a permanent change in the water quality of an exceptional resource. The proposed Ballot Initiative 24 would have changed this wording to prohibit new or increased discharges from point sources that would result in a permanent or temporary change in water quality.
In a previous assessment of the potential impacts of an ORW designation on Gallatin, the Board of Environmental Review determined that an ORW designation “effectively prohibits development unless development achieves ‘zero discharge’ into the system of the Gallatin River,” according to the memo. The note also stated that “zero discharge” is not economically or technically feasible.
Montana’s Constitution states that “private property shall not be taken or damaged for public use without just compensation.” By depriving affected landowners of any productive or economically beneficial use of their land without compensation, Knudsen deemed the proposed measure legally insufficient. The ballot initiative will not qualify for the 2022 general election ballot.
When contacted for comment, Cottonwood executive director John Meyer declined an interview with EBS.