Citizens sue Stillwater County officials over zoning issue

Several Stillwater County property owners filed a lawsuit Monday against the Stillwater County Commission and county clerk and recorder, saying the officials illegally stymied their efforts to create a citizen-initiated zoning district.

The Beartooth Front Coalition and individual property owners have been working for more than two years to establish such a district, hoping to adopt regulations that would require oil and gas development to “be conducted in a responsible manner,” in the words of the the lawsuit, filed in Stillwater County District Court.

The plaintiffs had succeeded in gathering the signatures of more than 60 percent of the surface landowners in the proposed 83,000-acre district — having been told that 60 percent was the required threshold.

After those signatures had been submitted, the lawsuit said, Clerk and Recorder Heidi Stadel, on the advice of the county attorney, told the Stillwater County Commission that the petitions also had to include the signatures of at least 60 percent of the owners of mineral rights in the proposed district.

That requirement is not part of state law, the lawsuit maintains, and if it were, it would be nearly impossible for petitioners to determine who those mineral-rights holders are, and nearly impossible for the clerk and recorder to validate the percentage of mineral holders who signed the petitions.

The lawsuit was filed by the Beartooth Front Coalition, the Lazy Y Diamond Bar ranch, Lana and Charles Sangmeister, William and Carolyn Hand, and Margaret Barron and Doxey Ray Hatch. The plaintiffs’ lawyer is David Wilson, of the Morrison, Sherwood, Wilson and Deola law firm in Helena.

The plaintiffs asked the court to order Stadel to certify the petition signatures submitted, and to compel the commission to act on the petition. They also want the court to declare that state law does not require that holders of mineral rights be counted toward the 60 percent threshold, and to declare the clerk and the commission to be in error on that point.

Citizen-initiated zoning was pursued in response to the announcement, made in Billings by the CEO of Energy Corporation of America in October 2013, that his company planned to drill for oil and gas along the Beartooth Front in Stillwater and Carbon counties.

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.

The boundaries of the currently proposed zoning district were drawn to reflect where in Stillwater County hydraulic fracturing, or fracking, would most likely be used to exploit oil and gas reserves. At 83,000 acres, the proposed district makes up less than 10 percent of the 1.1 million acres in Stillwater County.

Following the same process involved in creation of the citizen-initiated zoning district established in 1979 in regard to the Stillwater Mine, members of the Beartooth Front Coalition drafted a petition to regulate oil and gas development in the proposed district.

Its goals were to preserve public health; protect private property; protect and improve public infrastructure and services; protect surface and ground water, air quality and soil quality; and “maintain the quality of life by preserving the rural residential and agriculture character of the area.”

The coalition went about obtaining signatures under guidelines laid out in state law, the suit says, but despite numerous requests, county commissioners and the clerk and recorder “never provided consistent guidance on how property ownership would be taken into account to meet the petition threshold.”

Never in the multi-year process did the clerk or the commissioners say anything about taking mineral interests into account, the suit says.

In August 2017, some seven months after the coalition turned in petitions bearing the signatures of more than 60 percent of property owners, the Stillwater County attorney informed the petitioners that there was some question as to whether the owners of mineral rights should have been included as “real property owners” mentioned in state law.

In September, the county attorney referred the question to the state attorney general, who in November declined to issue an opinion on the matter. Then, on Jan. 24 of this year, the clerk and recorder, based on the county attorney’s advice, informed commissioners that mineral interests must be considered under state law.

Six days later, commissioners voted 3-0 to accept the clerk and recorder’s decision and to deny the petition.

The commission has also drafted a new set of proposed procedures for creating citizen-initiated zoning districts in Stillwater County, the provisions of which the lawsuit says “create insurmountable obstacles to any citizen-initiated zoning in the future.”

The suit goes on to say that more than 100 citizen-initiated zoning districts have been created in Montana, none of which considered mineral rights as part of the 60-percent calculation.

Regulations governing such districts in Ravalli and Missoula counties — which together account for 72 of the districts created in Montana — say property owners should be identified “from legal descriptions” in tax notices (Ravalli) and “using information from the Department of Revenue tax records” (Missoula). Mineral estate holders, the suit points out, do not pay property taxes and are not listed on the tax rolls.

In addition to ruling in the plaintiffs’ favor, the suit asks the court for a preliminary injunction preventing the officials from requiring signatures from mineral estate owners, and preventing the commission from adopting the new rules regarding citizen-initiated zoning.

The suit also asks that the officials pay for the plaintiffs’ court costs and attorney fees.

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