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Full text of "Annual report"



FEB 2 6 1975 



STATE DOCUMENTS 



COUDLu third 

STATE OF MONTANA ANNUAL 
DECEMBER, 1974 REPORT 



/^> 





^AON.TA^AA STATB USRARY 
930 East Lyndale Av«no« 
H«l«na, Mo^tano 59601 







3 0864 1003 9045 2 



Environmental Quality Council Members 

THOMAS L. JUDGE, Governor 
Designated representative: G. STEVEN BROWN 

Montana Senate 

ELMER FLYNN, Chairman 

GEORGE DARROW 

GEORGE McCALLUM 

GORDON McGOWAN 

Montana House of Representatives 

THOMAS O. HAGER, Vice-chairman 

A. L. AINSWORTH 

DOROTHY BRADLEY 

LARRY FASBENDER 

Montana Public 

THOMAS J. LYNAUGH 

HARRIET MARBLE 
CALVIN S. ROBINSON 
WILLIAM G. WALTER 



Environmental Quality Council 
Staff 



JOHN W. REUSS 

LOREN L. BAHLS 

RICHARD L. BOURKE 

CHARLES E. BRANDES 

MAXINE R. BROWN 

CAROL COX 

THOMAS W. FRIZZELL 

DAVIDS. KINNARD 

PENNY KUKES 

DANA MARTIN 

STEVEN j. PERLMUTTER 

KENNETH F. PORTER 

RONALD J. SCHLEYER 

WILLIAM TOMLINSON 



Executive Director 

Ecologist 

Economist 

Land Use Analyst 

Administrative Assistant 

Secretary 

Executive Assistant 

Legal Assistant 

Secretary 

Research Coordinator, 

Energy Policy Study 

Legal Assistant 

Research Assistant 

EIS Coordinator 

Information Assistant 



Production Staff 
Third Annual Report 

RONALD ). SCHLEYER Editing 
ANNETTE HAEGELE Cover Art 

Len V/sua/ Design. Helena 



ACKNOWLEDGEMENTS 



I Environmental Quality Council and staff ttiank all wfio coi 
including former Executive Director Fletcher E, Newby. wfio initiated the ^ 
Study: Walter I. Enderlin. the first Montdna Energy Policy Study coorc 
Schmidt. Tina Torgrimson. and Rick Applegate. EQC research assistants. 



ributed to this report, 
jntana Land Use Policy 
lator and Deborah B. 



Research in this report was financed in part by 
Ford Foundation Grant No. 730-0141 



LETTER OF TRANSMITTAL 



Honorable Thomas L. Judge 

Governor 

State of Montana 

Members of the Legislative Assembly 

The People of Montana 



The Environmental Quality Council herewith submits its rh/rd/\nr)ua//?eport for the fiscal 
year ending June 30, 1974, in accordance with Sec. 69-6514 of the Montana Environmental 
Policy Act. 



Senator Elmer Flynn ( / John W. Reuss 

Chairman ^^ Executive Director 



THIS REPORT PRINTED ON RECYCLED PAPER. 



©oe' 



CONTENTS 
The Year's Work 

Preface jv 

Introduction v 

Land Use: The Problem and the Challenge 2 

Montana Land Use Policy Study - Charles E. Brandes 3 

Part I: Montana Today 3 

LAND USE TRENDS IN MONTANA i'''^''''''".'''''''Z. 9 

STATE AGENCY REVIEW !.!.!!!!!"""I!!I""'' 18 

Part II: What Might Be Done 39 

LAND USE ACTIVITIES IN OTHER STATES 39 

AMERICAN LAW INSTITUTE MODEL LAND DEVELOPMENT CODE 53 

Part III: A Land Use Policy for Montana's Future 59 

THE LEGAL BASIS FOR STATE ACTION Z"'!.......L... 59 

AREAS OF STATE CONCERN ZZZZZZZ'Z'Z'ZZ 63 

DEVELOPMENTS OF GREATER THAN LOCAL IMPACT .'ZZZZ'ZZZ^. 64 

APPEALS PROCEDURE AND STATE LEVEL ORGANIZATION ZZ'Z'^. 66 

ADDITIONAL TOOLS TO GUIDE LAND USE 69 

Public Land Banking — David Kinnard 79 

Development Rights Transfer — David Kinnard 87 

Public Participation and Environmental Quality* — Rick Applegate 93 

The Year in Review 

Environment Efforts in the 1974 Legislature — David Kinnard 117 

EQC Operations T21 

State Agency Programs and Activities — Kenneth F. Porter 125 

Appendixes 

A. Biographies of EQC Membership and Executive Director I35 

B. The Montana Environmental Policy Act 135 

C. Revised Guidelines for Environmental Impact Statements 140 

D. Documents Submitted in Compliance with MEPA 146 

E. EQC Program Cost Summary -I47 

•Copyrlghl 1974 by Rick Applegale. 



Preface 

The 1971 legislature enacted the Montana Environmental Policy Act. Passage of 
that act established a state policy for the environment, directed state agencies to 
comply with the act, and created the Environmental Quality Council (EQC). 

Creation of the EQC was a major institutional innovation. Of the twenty-odd states 
having "little NEPAs," Montana alone decided to attach such an agency to the 
legislature. The strength of this approach is that it created an agency without day-to- 
day program operating responsibilities, allowing the EQC through its staff to serve the 
legislature by conducting policy studies and overseeing the performance of executive 
agencies within the policy framework established in the Montana Environmental 
Policy Act. 

At the direction of the 1973 legislature, the EQC was requested to prepare two 
comprehensive state policy studies — one on land use and a second on energy. Interest 
in these subject areas and in helping develop EQC's policy research capabilities, led 
the Ford Foundation to assist in funding these efforts. 

The year 1974 was one of testing for the EQC. The task of completing the policy 
studies in order to make recommendations and draft legislation to be considered by 
the 1975 legislature was complicated by personnel changes and the hiring of a new 
executive director. As it was, the studies assumed that the legislature would be meeting 
annually, providing for a more systematic review by the legislature and the holdover to 
the 1976 session of legislation concerning very complex and controversial issues. 
Pressure to finish the Montana Land Use Policy Study, problems connected with 
completing the Montana Energy Policy Study, and concern within the council over 
how to implement the land use recommendations, prevented the council from making 
any legislative recommendations for the 1975 legislature. 

Nevertheless, the past year has seen the EQC mature and move another step 
toward fulfilling its mandate as provided by the Montana Environmental Policy Act. 

I would like to thank the outgoing council members for their concern and the 
public for its continuing interest and support. I look forward to working with the new 
council and I pledge our continuing efforts to maintain and enhance the overall quality 
of life in Montana. 



Senator Elmer Flynn 

Chairman 

Environmental Quality Council 



Introduction 



Last year's report, the EQC Second Annual Report, identified those issues — land use, 
energy, and saline seep — which were being researched by the EQC staff. Each of these 
issues represents a major problem of concern to all Montanans. In the conduct of this 
work, the EQC staff has sought to produce information, analyses, and recommendations 
that would foster public understanding and stimulate citizen involvement and assist the 
legislature as it attempted to define policies and design programs in response to these 
issues. 

During the past year, the EQC continued to make substantial contributions to our 
knowledge of saline seep. Michael Harlow's Environmental Impacts of Saline Seep in 
Montana (September 1974) built on earlier EQC saline seep research by Loren Bahls and 
Marvin Miller. The importance of Harlow's effort is that it provides a comprehensive 
summary of the problem, a detailed literature search, a directory of agencies involved in 
saline seep in Montana, and a set of recommendations. The report was endorsed by the 
EQC Council at its meeting on December 6, 1974. 

Ot continuing concern to Montanans is the development of the vast coal deposits in 
the eastern part of the state. For a year and a half, the EQC has been examining the 
Montana energy situation. The results of that effort are soon to be released to the 1975 
legislature. This has been a particularly troublesome undertaking; staff changes, the 
absence of models to guide the research and synthesis of the work, and the uncertain role 
to be played by the Federal government complicated the task. But everything considered, 
the EQC Montana Energy Policy Study promises xo be a useful handbook for finding out 
what energy development is going on or could be in future and for beginning to define 
more precisely what Montanans can do and want to do in developing their energy 
resources. 

Surely the major EQC accomplishment of the past year was the release of the EQC 
Montana Land Use Policy Study. In many ways the Montana Land Use Policy Study is a 
model of what a state land use policy study ought to be and an example of the high 
calibre, professional policy analysis of which the EQC staff is capable. The Montana Land 
Use Policy Study is reprinted here in order to make it more widely accessible. 

Earlier EQC annual reports had been distinguished by going beyond chest-beating 
articles that review the past year's work. This Third Annual Report is no different; Dave 
Kinnard's concise and insightful articles on land banking and development rights transfer 
complement and extend Chuck Brandes' analysis in the Montana Land Use Policy Study. 
Hopefully, these pieces will stimulate interest in examining the applicability of these 
techniques to the Montana setting. Rick Applegate's article on citizen participation and 
the environment concludes a major research effort reported in the EQC Second Annual 
Report. Montanans concerned with public involvement in Montana environmental 
issues will find it both highly intelligent and very useful — a rare combination. 

All of the efforts of the past year have greatly enhanced the ability of the EQC staff to 
operate as envisioned by the Montana Environmental Policy Act. It is easy to comment on 
the excellence of the individual efforts of EQC staff members like our land use analyst 
Chuck Brandes, our ecologist Loren Bahls, and our economist Dick Bourke. Beyond that 
the EQC staff has demonstrated its ability to transcend disciplinary boundaries and 
produce work that is interdisciplinary. This is what MEPA envisioned and the EQC staff's 
skill at making it work is what ultimately determines its utility to the legislature which it 
serves. 

In important ways the EQC Third Annual Report presents work initiated under the 
previous EQC executive director, Fletcher E. Newby. His choice of themes and staff was 
prescient and his influence is openly acknowledged. 

John W. Reuss 
Executive Director 
Environmental Quality Council 



Montana Environnnental 
Quality Council 



.A^lSTTSTTJ-J^X^ 



Land Use: The Problem 
and the Challenge 



How often in the last few years have we heard that "Montana is at a 
crossroads"? So often, probably, that the phrase has become a 
meaningless cliche. More serious, the steady barrage of material 
competing for our attention on such matters as local planning and 
zoning, rural subdivisions, and energy development has eroded our 
confidence in being able to manage the future and dulled our 
capacity to act effectively. 

The EQC Montana Land Use Policy Study is different and deserves 
your careful attention. In most respects the study is a model of what 
a land use policy study ought to be. The study: 
—identifies and analyzes why a land use policy study is needed; 
—carefully isolates Montana's land use problems and discusses the 

full range of their direct and indirect consequences; 
—systematically assesses how current laws and their administration 

by state agencies aid or hinder the resolution of land use 

problems; 
—summarizes the experiences of other states in managing their 

land resources, outlines what kind of laws they have enacted, and 

evaluates the applicability of those experiences and laws to 

Montana; 
—begins, in a tentative way, the difficult process of articulating a 

land use policy for Montana; and finally, 
—recommends that the legislature consider legislation that would 

establish a state land use commission and specify procedures 

whereby citizens, local and county governing bodies and the 

state can: 

1) identify goals, 

2) identify, designate and manage areas of state concern, and 

3) regulate the siting of developments of greater than local 
impact. 

It is important to remember that the EQC Montana Land Use Policy 
Study may be divided into two distinct parts. One part deals strictly 
with facts — the problems, current state laws and agency programs, 
and land use legislation in other states. In this sense the study is a 
handbook designed to assist legislators and citizens as they consider 
various land use measures. The other section of the study deals with 
values and judgments — the attempt to present a preliminary state 
land use policy and the EQC recommendations. 
It is not expected that everyone will agree with the EQC land use 
policy statement and recommendations. The intent has been to 
eliminate the rhetoric from the land use issue in Montana. Most of 
the facts required to make the necessary policy and program 
decisions are contained in the EQC report. Those who disagree with 
the EQC conclusions and recommendations should make their own 
positions clear. It is through this process that comparisons among 
alternatives can be made and decisions reached that will ensure that 
Montana will be able to both accommodate change and retain 
those qualities that make it unique. 



MONTANA LAND USE 
POLICY STUDY 



Research Coordinated 

by 

Charles E. Brandes 



/. MONTANA TODAY 



HISTORICAL PERSPECTIVE 

It is no accident that Montana is called the Treasure State, 
for her history is a tale deeply rooted in the wealth of the 
land. But even if other resources were to be depleted, 
Montana's most priceless treasures — space and beauty — 
could remain in a state of quality forever if Montanans pause 
now to consider the past and the future. 

Even the best hopes rooted in the land sometimes returned 
only misery and sorrow for Montanans. Wrested from her 
original Indian stewards by advancing waves of trappers, 
cattlemen, miners and homesteaders, Montana gave much 
under forceful hands. The price of violence was real and 
lasting: mined-over Bannack is lifeless now; the Anaconda 
hillsides are barren of trees that fed smelters; the culture of 
the Indian people lies in the shadow of the white race; 
deserted towns and vacant shacks dot the landscape, 
testament to withered hopes and a retreat from sorrow. 
These are ugly scars, but worthwhile lessons for Montanans 
today. 

For Montana again is on the brink of massive change — 
enormous plans are afoot for development and 
industrialization. Now the miners see coal, not gold and 
silver. Instead of picks and shovels, they carry grease guns 
for strip mine draglines and the endless coal conveyor belts. 
Characteristics that heretofore discouraged urbanization — 
remoteness, topography, climate and sparse population — 
ironically have become the lures of a new cadre of land 
dealers who see no conflict between wilderness and 
suburbia. Their sales pitches are new but the stakes — profit 



and turnover — were familiar even to homesteading 
Montanans in the early 1900s. 

The early history of boom-bust Montana is perhaps a classic 
example of a dubious supposition that has had tragic 
national dimensions: that the relationship between a 
person and the land is purely private; that the land's only 
function is to enable its owner to make money. 

Following the 1804-'06 Lewis and Clark exploration, the fur 
traders set about the first serious exploitation of natural 
resources in a way that characterizes much of Montana's 
history. Although the early beaver trappers responded to 
the whims of eastern fashion, it wasn't whimsy but a solid 
market that brought the open-range cattle industry to 
Montana in 1866. This lucrative enterprise satisfied eastern 
and foreign investors and depended on the seemingly 
endless sea of grass in eastern and central Montana. But 
overgrazing and the bad luck of drought weakened the 
herds. Finally, more than 400,000 cattle starved and froze in 
the winter of 1886-'87. 

Tfie placer miners, whose demand for meat had encouraged 
the luckless cattle owners, had their beginnings at Gold 
Creek in 1858. Major gold strikes through 1865 brought 
thousandsof miners, the first of Montana's urban crime, and 
a permanent metals industry that swelled Montana's 
population to a quarter million by the turn of the century. 
Statehood, deep mining and copper smelters replaced the 
territorial placer diggings and brought bitter rivalries for 
power that manipulated the legislature and precipitated 
mining shutdowns and bloody labor fights. 



—3— 



Homesteading, encouraged by the railroads, land 
speculators, and the government, led 80,000 new citizens to 
Montana by 1918. They furrowed the prairies with horse- 
drawn plows and planted nearly as much wheat — 3.5 
million acres — as is planted today with tractors. The 
drought of 1919 caused a crop disaster that eventually wiped 
out towns, banks and 11,000 family farms. Winds attacked 
the exposed topsoil and more drought finished off most of 
those who continued trying. More than 60,000 home- 
steaders eventually left the state. Montana farmers needed 
50 years to make dry-land grain farming the success it is 
today. But the spread of saline seep indicates gaps in the 
knowledge needed to keep that particularly vital land use 
from becoming land abuse. 

Conditions surrounding land use decisions have changed 
drastically since the last boom. Perhaps it is the quickening 
pace of change in general that points emphatically to the 
need for land use policy. Or perhaps it is the ever growing 
impact of the energies and machines that respond to our 
touch. A bulldozer can change in a day what once took a 
season's labor. The misjudgments of a few can materialize 
into nightmares for thousands with scant warning. Day by 
day, complexity feeds on complexity as today's tentative 
enterprise becomes tomorrow's entrenched practice. 

Our descendants will surely judge us on what we do to heed 
the lessons of the past and provide for their future. Their 
lives, like ours, will grow from the land. This is the challenge 
and opportunity facing all Montanans today. 



TODAY'S CONCERNS — 
TOMORROW'S REALITIES 

Humans have a tendency to be unaware of undesirable 
trends until they result in full-blown crises. This is 
unfortunate, but understandable. Most people are too busy 
trying to make ends meet and responding to the events of 
the day to take the long view and try to separate causes from 
symptoms. Consequently, most individuals and most of 
society's institutions, public and private, react to problems 
only as they generate crises. 

Typically, for what appear to be compelling reasons, some- 
thing becomes labeled a "problem." Over time this is 
brought to the attention of decision makers who, if 
sufficient interest is evident, pass or amend a law. And so the 
process goes, a small change here and a minor adjustment 
there. Rarely are underlying assumptions openly and 
seriously examined and rarely is the full range of 
consequences from a particular action or decision assessed. 
This approach to problem-solving may cure symptoms but 
frequently results in new problems. The basic fallacy of the 
piecemeal approach, of course, is that problems must be 
seen In their context as part of larger systems if real solutions 
are to be found. Our inability to deal successfully with 
natural resource problems Is a reflection of our failure to see 
problems as components of interrelated systems. 

The foregoing observations should not be misinterpreted. 
The point Is not that Montanans or the Montana legislature 



has been remiss in the attention devoted to environmental 
and natural resource issues. On the contrary, on many vital 
issues — utility siting, natural areas designation, strip mine 
reclamation — Montana legislation is looked to as a model 
by other states. But improving the capacity of Montana's 
citizens, local governments, and agencies of state govern- 
ment to respond to land use issues rationally and 
systematically is the object of the EQC Montana Land Use 
Policy Study. 

Highlighting the land use related issues dealt with by the last 
three Montana legislatures shows clearly their responsive- 
ness to a number of important problems. During these last 
three sessions, the legislature strengthened existing 
legislation and took new initiatives in a number of resource 
and land use areas such as water and waterway protection, 
wildlife management, mining and mine reclamation, pesti- 
cides and pest control, and prevention of environmentally 
abusive practices. 

The 1971 legislature strengthened the coverage of the 
Stream Preservation Act of 1967, overhauled the water 
pollution act of 1967, and passed the floodway manage- 
rnent act. In the mining field, the legislature enacted the 
Landowner Notification Act and passed legislation 
regulating the reclamation of hard rock mining activities. 
Some additions were made to the provisions of the statute 
dealing with city or city-county planning boards and zoning 
districts. Lastly, the legislature passed the Montana Environ- 
mental Policy Act (1). 

The 1973 legislature will be remembered for its treatment of 
land use and energy-related issues. For example, the legis- 
lature passed the Utility Siting Act and the Water Use Act. In 
addition, the statute dealing with city-county planning 
boards was revised in the Montana Subdivision and Platting 
Act. 

The passage of the Montana Strip Mining and Reclamation 
Act established what many regard as the model coal 
reclamation law. Along with other energy resource taxation 
and conservation measures, the legislature enacted the Strip 
Mined Coal Conservation Act. Lastly, concern over the 
impact of rural subdivisions on agricultural land led to 
enactment of a greenbelt law (2). 

The 1974 legislature devoted much attention to environ- 
mental and natural resource issues. The legislature passed 
the Strip Mine Siting Act, The Montana Natural Areas Act, 
and placed a three-year moratorium on significant new 
appropriations of water from the Yellowstone River (3). 

Even this cursory review of legislative action in the environ- 
ment, land use, and natural resources areas illustrates some 
important emerging themes. First, time devoted to such 
issues indicates that the public is very concerned that 
development in Montana must be carried out with the least 
possible damage to the environment. Second, the 
legislature has taken steps to protect land and water as they 
relate to coal development. Revisions of the eminent 
domain laws, strip mine and energy conversion facility siting 
measures, and provisions specifying reclamation pro- 
cedures are designed to give the state strong regulating 



powers over coal development. Third, the legislature, 
through its concern with rural subdivision, the growing 
interest in industrial uses of the Yellowstone River, and the 
decline in the use of agricultural land near urban areas, is 
becoming increasingly concerned with the relationships 
among economic development, population growth and the 
quality of life in Montana. 

Further, the legislature has declared that certain proposed 
developments have such enormous impacts that only state 
government can decide objectively whether they should be 
allowed. Hence the state has the last word in siting of strip 
mines and power generation facilities. The state must 
approve reclamation plans. The state reviews certain aspects 
of new subdivisions. The state also grants permits to water 
appropriators. Most of these activities require environ- 
mental impact statements which assist administrators and 
provide significant opportunity for citizen involvement in 
decisions, while providing a reference for what is happen- 
ing to the state as changes occur. 

Many of these concerns were reinforced when the staff of 
the Environmental Quality Council polled Montana county 
commissioners, conservation district supervisors, and city- 
county, county, and area-wide planning board members in 
April 1974 (4). These groups are extremely interested in land 
use issues. From a list of traditional land use problems, these 
groups indicated concern over the following issues: 

1. Preservation of the economic base represented by 
prime agricultural and forest lands. 

2. Cooperation among, state, regional, and local 
levels of government In decisions regarding the 
use of land and water. 

3. Control of erosion, sedimentation, and the fillings 
and dredging of lakes and streams. 

4. Encouraging desirable development. 

5. Inability to influence land use decisions made 
outside the county which have effects within the 
county. 

6. Guiding development to locations which minimize 
the undesirable effects of development. 

7. Regulating subdivision location and design. 

8. Protecting scenic, cultural, scientific, archaeo- 
logical, and historical values. 

9. Public access to state and federal lands and waters. 

10. Cost of planning, both for the individual and the 
local government. 

These same local officials were asked to list what they 
considered the most serious land use issues in their areas. 
Their response follows: 

1. Preservation of the economic base represented by 
prime agricultural and forest lands. 

2. Control of erosion, sedimentation, and the filling 
and dredging of lakes and streams. 



3. Cooperation among state, regional, and local 
levels of government in decisions regarding the 
use of land and water. 

4. Regulation of subdivision location and design. 

5. Encouraging desirable development. 

6. Water use, development and storage. 

In addition, local decision makers, particularly county com- 
missioners, questioned their ability to react effectively to 
the changes occuring within their jurisdictions. Reluctant to 
raise taxes, lacking adequate technical advice, often over- 
whelmed by private developers, and unfamiliar with all the 
impacts (benefits and detriments) associated with develop- 
ment proposals, Montana's county leaders need help 
before their concern over land use issues turns to cynicism. 

More evidence of the growing Interest In land use issues is 
provided by a series of meetings on land use sponsored by 
the Montana Committee for the Humanities. Nine regional 
workshops were conducted during October 1974 to bring 
citizens together to discuss and communicate their 
concerns over land use issues In their area.* A statewide 
conference in Great Falls integrated the issues identified 
locally and focused on those common elements which must 
be included in a statewide policy on land use. 

These workshops illustrate that the issues surrounding land 
use in Montana are of tremendous concern to Montana 
citizens; a total of nearly 1400 persons attended the nine 
workshops. For example, more than 250 persons attended 
the Miles City workshop on October 29, 1974. During the 
course of the meeting nine questions emerged from the 
exchange of views identifying issues: 

1. Do we want to preserve agricultural land and if so, 
how? 

2. Can we maintain individual property rights in a 
planning process? 

3. What are our concerns about government 
management of agricultural lands? 

4. Land use planning should be done locally — but 
what kinds of planning and how? 

5. How do we avoid national land use planning? 

6. What kinds of state and local controls will support 
planning and how can we influence state govern- 
ment? 

7. Where should planning and control take place? 

8. How can we keep our own individual rights and 
avoid government planning at any level? 

9. How can we benefit from the mistakes made In 
other communities? 



—5- 



Is all this concern justified? Will not everything work out all 
right if we just go about our business? 

Answers — the only ones now available — come from 
looking at other states. Governor Thomas L. Judge has 
commented that Montana is lucky that she Is some years 
behind other states in development and has the opportunity 
to learn from their mistakes. Looking at other states we can 
gain a glimpse of a possible future. 

What has happened to the orange groves and beautiful 
beaches of southern California and the magnificent view of 
the Rockies from Denver is a cliche that needs little 
repetition. 

Likewise, the subdivision of Florida is infamous. Over 
200,000 lots in recreation and retirement subdivisions are 
registered each year. In one disastrous example, a single 
company drained and subdivided 113,000 acres of swamp. 
Purchased for from $100 to $150 dollars an acre the lots were 
resold for as much as $1800 an acre. Ten years after the start 
of the subdivision there were three homes there. One land- 
owner had discovered it would cost $2,880 to install a phone 
line reaching his site. The drained swamp also proved to be 
an extremely dangerous fire hazard (5). 

In New Mexico, a basically rural state somewhat like 
Montana, estimates are that more than a million acres have 
been subdivided. If built upon, these lots could accommo- 
date eight million persons, or eight times the present state 
population. State law requires developers to provide access 
and so bulldozers scraped many a grid out of the desert (5). 

In one rural Pennsylvania county, subdividers mapped 
25,000 lots and sold 12,000 in five years. The population of 
the county was less than 15,000 before the subdividers 
began their work. Soils in half the area subdivided are 
unsuitable for on-site sewage disposal systems, yet 89 
percent of the subdividers provided no sewers (6). 

In another Pennsylvania county, 46,000 acres were sub- 
divided in five years beginning in 1967. By 1973 the rate of 
the subdivision reached 10,000 acres per year, and at that 
rate 30 percent of the county would be subdivided by 1980. 
In Pike and Monroe Counties, Pennsylvania, occupation of 
all the lots sold since 1968 would result in a "second home 
population" five times the local resident population (6). 

If the implications of providing public services to such 
enormous developments are staggering, so are the 
implications of all that land remaining idle. With the passage 
of time, ownership will become clouded and consolidation 
of small lots impossible. If a handful of scattered houses 
spring up the subdivision may become a rural slum, served 
by poor roads and few services. Being too small for agri- 
culture or other non-urban uses the parcels are neglected 
— open space and farmland transformed into vacant lots. 

The Environmental Quality Council believes that 
Montanans must address land use issues and take bold, new 
initiatives. The Montana legislature has demonstrated its 
concern for the protection of the Montana environment. 
The legislature has provided strong guidance in select areas 



but more action is needed. The interest in rural sub- 
divisions, the impact of accelerated energy development on 
Montana agricultural land, concern over planning, and 
what appears to be a consensus that a high quality of life in 
Montana is closely tied to maintaining the agricultural base 
of the state provides the backdrop against which a land use 
policy must be formulated. 

Montana has two features that make it unique among the 
states. First, its agricultural way of life has resulted in a small, 
dispersed population. Second, Montana now has a healthy 
and stable environment. These two characteristics go hand 
in hand; one cannot exist without the other. Preserving the 
agricultural economic base and its accompanying way of life 
will limit both the type and number of other kinds of land 
use. Also vital is the concept of protecting land that either 
provides environmental health (for example, wildlife 
habitat and unique historical or natural areas) or endangers 
human activity (for example, floodplains and earthquake 
zones). 



The time is ripe. Montana is at a crossroads. No Montana 
land use problem, be it rural subdivision, saline seep, or coal 
development, has yet reached the point where it is irrever- 
sible. 



Because different patterns of land use over the years will 
have significantly different impacts on the local and regional 
community, the public is becoming more and more aware 
of the disadvantages of letting individuals implicitly or 
explicitly do the planning for current and future 
generations. When we look at other western states — 
Arizona, California, and Colorado — we can see what has 
taken place in the absence of effective public involvement 
in land use decision making. Today, pressures on Montana 
land lead us to the conclusion that now, more than ever, 
there is a valid public interest in private decisions regarding 
land use. Agreeing that we want, for example, to avoid 
repeating some of Colorado's mistakes but believing that it 
won't happen here or that we have plenty of time to devise 
some way of avoiding them, is not a very wise approach. 
Likewise, "business-as-usual" will not suffice. To do nothing 
would perpetuate practices proven to produce untoward 
consequences. Similarly, failure to acknowledge the 
legitimacy of public interest in land use decisions will 
produce ineffective programs. 

The right to property by individuals is a basic one, 
guaranteed by the U.S. Constitution and particularly 
cherished by many Montanans. Like other rights, this one is 
not absolute; like other rights, its exercise entails 
considerable responsibilities. The individual right of 
property does not mean that the owner may do anything at 
all with the land. 



The future of Montana depends on taking positive, public 
action now. Maintaining an environment capable of 
sustaining itself and providing a high quality of life for its 
citizens — provided today by the agricultural economy — is 
the responsibility of the state. 



NATIONAL GROWTH 

AND THE 

ROCKY MOUNTAIN WEST 



Depending on the national fertility rate, the nation's 
population is expected to jump from 209 million in 1973 to 
between 265 and 300 million by the year 2000. 

The Western Region* of the U.S. Bureau of the Census is the 
only census bureau region whose share of the total U.S. 
population is projected to grow over the next 20 years if the 
interstate migration trends established before 1970 
continue. Its share Is expected to grow from 17.2 percent in 
1970 to 19.1 percent In 1990. 

The population of the mountain sub-region,** Including 
Montana, is expected to Increase from 8.28 million in 1970 to 
10.89 million in 1990, or from 4.1 percent to 4.3 percent of 
the U.S. population (8). 

Economists generally predict increasing discretionary 
Income and leisure time over the next 20 to 30 years. Fore- 
casting economic trends is always hazardous, however, for 
the future depends on many variables which seem to be in 
constant flux: international political and economic trends; 
the increasing and sometimes artificial scarcity of minerals 
and fossil fuels; availability of investment capital; govern- 
mental policy, and the supply of food and agricultural 
commodities. Recent high inflation rates and successive 
quarterly drops in the Gross National Product (GNP) have 
substantially tempered the short-term prospects of general 
economic growth, but few really expect the long-term, 
future to hold apocalyptic economic problems. 

What will be the impact of national trends on Montana's 
future? Three key trends will determine, in large part, 
Montana's future economy. First, demand for agricultural 
products will continue to outstrip world supply and will 
create an increasing need for Montana's agricultural 
production. Second, growing national demand for energy 
and minerals will continue to put pressure on Montana's 
resources. Third, Montana's unsurpassed physical appeal 
will remain in demand for recreational, second home and 
retirement purposes. 



None of these trends appears transitory. Each promises to 
continue into the foreseeable future, placing ever larger 
demands on Montana's land and resource base, either for 
increased development or more intensive use. Require- 
ments to satisfy the demands can conflict with one another, 
spawning difficult questions that have profound rami- 
fications: Water for energy production or food production? 
Land for farms or subdivisions? Recreational resources for 
hunting, backpacking, campingand photography, or for all- 
season resorts, power lines, condominiums and aerial 
trams? Someday these conflicts will be resolved, but on 
whose terms? Who will decide? If the people of Montana do 
not debate and decide them through their elected repre- 
sentatives then the special interests will do it for them. 



Some of these conflicts are upon us today. Aggregate water 
demand for industrial and agricultural purposes in the 
Yellowstone Basin exceeds prudent estimates of supply. 
Meeting the demand probably would require construction 
of large reservoirs, the flooding of many valleys and 
permanent changes in large regions and the permanent loss 
of miles of free flowing rivers. So far, this threat to the land 
has been stayed by a moratorium on large water diversions 
in the basin, but crucial decisions remain ahead. 

Many Impacts of Montana's growth are more subtle and 
widespread, such as the quiet blur of subdivision across 
thousands of acres of range and farmland. As population 
grows so will the demands and the potential for conflict. 
Irreversible commitments of Montana's land are being 
made today, and more commitments will come tomorrow. 
Accelerating Montana's population growth would spur the 
pace of change and compound the chances for damage. 



Population Projections for Montana 

Between 1960 and 1970 Montana's population increased 2.9 
percent, from 674,767 to 694,409. In mid-1974, Montana's 
estimated population was 735,000, or 5.8 percent larger than 
in mid-1970, according to the latest federal census estimates 
(8). Earlier estimates of county population changes from 
1970 to 1973, done by the University of Montana Bureau of 
Business and Economic Research in cooperation with the 
U.S. Bureau of Census, indicate growth of a similar 
magnitude. Nine counties had a 10 percent or greater 
increase. Only one county, Powder River, had a decrease 
greater than 10 percent (See Table 1). 

The minimal population growth of the decade of the 1960s 
appears to be a thing of the past, notwithstanding recent 
accounts of a 7.8 percent drop in Montana's population by 
1990 projected by the census bureau. This projection was 
the result of an analysis incorporating effects on Montana of 
the lowest projected national fertility rates (10). 

Projecting Montana's 5.8 percent growth since 1970 yields a 
population of about 800,000 in 1980, a 15.1 percent increase 
during this decade. This is over five times the growth during 
the 1960s, and equal to Montana's population Increase from 
1950 to 1970. 

In addition, the potential Impacts of energy development 
on population in eastern Montana are staggering. Although 
difficult to forecast with any precision, it has been estimated 
that anywhere from 10,000 to 50,000 new primary and 
derivative jobs could be generated (11). 

The primary determinant of population growth trends in 
Montana is in- and out-migration. The 1960s experienced 
out-migration. Preliminary estimates for 1970-1973 indicate 
that Montana is now experiencing a net annual in-migration 
of 1.4 percent. 



^ Mexico. Ariz< 
' Western Region excepi Washington. Oregon 



.Utah, Nevada. Wishing- 



TABLE 1 (9) 

Estimates of the Population of Montana Counties 
(in 1970, 1972 and 1973) 



Deer Lodge 
Fergus 



July 1, 
1973^ 


Julyl 
1972 


721,000 


716,000 


6,000 


8,200 



April 1, 
1970° 



6,800 


6,700 


6,727 


2,700 


2,600 


2,526 


7^800 


7,500 


7,080 


1,800 


1,900 


1,956 


83,700 


84,200 


81,804 


5,900 


6,300 


6,473 


11,300 


11,800 


12,174 


3,100 


3,100 


3,083 


10,900 


11,000 


11,269 


15,800 


15,900 


15,652 


3,800 


3,900 


4,050 


12,700 


12,600 


12,611 


40,600 


41,000 


39,460 



Change, 1970 to 1973 
Number Percent 



Components of Change, 1970 to 1973 *^ 
Net Migration 
Births Deaths Number Percent 



Carfidd 

Golden Valley 
Granite 



Lewis and Clark 
Uberty 



Musselshell 

Parkd 
Petroleum 



6,700 


6,200 


5,238 


2,600 


2,600 


2,667 


15,600 


15,400 


14,445 


35,500 


34,800 


33,281 


2,500 


2,400 


2,359 


17,700 


17.900 


18,%3 


2,800 


2.700 


2,875 


5,600 


5.600 


5,014 


2,200 


2,200 


2,122 


3.300 


3,200 


2,958 


61,200 


60,700 


58,263 


4,100 
11.800 


3,900 
11,800 


3,734 
11,261 


600 


700 


675 


5,200 


5,200 


5,386 


7,200 


7,300 


6,611 


2,100 


2,500 


2,862 


6,800 


6,900 


6,660 


2,000 


1,800 


1,752 


16,900 


16,100 


14,409 


9,700 


9,700 


9,837 



Toole 

Valley 
Wheatland 



2,529 
87.367 



timates are show 
is the difference 
? denotes net oi 



Z denotes less than 50 c 



-, than 0.05 percent. 



eaths are based on reported vital statistics from April 1 . 1970, to December 31 , 1972, with extrapolal 
■3. 

; National Park is included in Park County. 



The 15.1 percent increase projected for 1970 to 1980 there- 
fore may not be excessive. The Department of Intergovern- 
mental Relations has projected 1975 and 1980 population 
estimates based on a 50 percent increase in net 1970 and 
1980 migration. These IGR estimates give a 1975 estimate of 
roughly 741,000 persons and a 1980 figure of 807,000. The 
Department of Natural Resources (DNR) also hasgenerated 
some low, medium, and high population forecasts through 
the year 2020, based on an analysis of many recent 
population and employment estimates. Their medium fore- 
cast for 1980 is 747,000 which, if current trends prevail, will 
be surpassed by 1975-76. DNR's high forecast for 1980 is 
908,000, which assumes there will be intensive energy 
development in southeastern Montana. Most likely our 
population in 1980 will fall somewhere between these last 
two estimates: near 800,000 persons. 

If the present trend continues through the end of the 
century Montana will pass the million mark by the year 2000 
— a 43 percent increase over our 1970 population. 
Population forecasting is fraught with assumptions 
vulnerable to changing circumstances. But prudence 
demands that in the face of potential population increases 
of this magnitude, Montanans begin now to protect the 
resource bases which lend security to the state's economy 
and offer high quality life styles to her citizens. 



Many forces are causing changes in the use of Montana's 
land. Saline seep and coal development are among the 
easily identified ones. Increasing demand for Montana's 
agricultural commodities, mineral and forest resources and 
the growth of Montana's manufacturing and service 
industries will continue to provide jobs that will enable 
more people to work and live here. Spreading affluence will 
allow many more Montanans, and non-Montanans, to 
realize their dreams for homes in the country: on the lake- 
shore, in the mountain valley, near the creek. The 
cumulative effects of these and other more subtle forces on 
the use of land and on space are not so readily identifiable. 



Montana's cities, by Colorado or California standards, are 
just beginning to show signs of suburban sprawl — the 
blight so familiar to many new residents arriving to escape 
metropolitan problems. As will be shown in this study, 
perhaps 510,000 acres of Montana lying outside cities and 
towns have been subdivided into 40-acre or smaller parcels 
and the amount of subdivided land could be growing by 20 
percent per year. Yet as many as 60 percent of the existing 
subdivided lots may not have anything built on them. Un- 
fortunately, the land being subdivided today includes some 
of the state's best agricultural land — land that will be 
needed tomorrow to sustain Montana's economic base. 



LAND USE TRENDS 
IN MONTANA 

It has been said in many different ways that there is a special 
and pervasive closeness between the people and the land in 
Montana. Montana's huge spaces seem to sustain this close- 
ness. But Montana's land is in finite supply, comprising 
93,217,040 acres or 145,651 square miles (12). The quantity of 
"space" is not so easily measured, but its quantity and 
quality are determined by the use Montanans make of their 
finite land. 

Table 2 presents the results of a 1967 land use inventory of 70 
percent of Montana. Most of the area inventoried is non- 
federal land. The federal government controls about 
26,570,000 acres of the state. 

Land ownership in Montana is divided among the private 
sector, federal and state governments and Indian 
reservations. Federal land management agenciesadminister 
29.6 percent of the state's total area while state agencies and 
institutions administer 6.5 percent. Indian reservations 
encompass 6.9 percent, and the remaining 57 percent is held 
privately (13). 

TABLE 2 (13) 
Land Use Acres (thousands) 

Irrigated cropland 1,648 

Non-irrigated cropland 13,341 

Pasture 1,263 

Range 41,175 

Irrigated native grassland 568 

Forest and woodland 7,004 

Inland water 897 

Urban and built-up 818 

Other* 520 



Suburban Sprawl 



During the 1960s Montana's overall population increased 
slightly while the rural farm and rural non-farm population 
generally decreased. The growth that occurred, occurred in 
the areas around the cities of western Montana and Billings. 



Table 3 supports the contention that most of the growth of 
the 1960s occurred in urban growth centers, or "urban 
areas," with a 1970 population of 2,000 or more. Urban 
growth centers include a core city or town and part of one or 
more surrounding counties (14). During the 1960s, the 
population of Montana's urban areas grew 16 percent 
(Column 10, Table 3). FHowever, on the average, the 
population of core cities and towns grew only 3 percent and 
the population of the surrounding counties grew only 5 
percent. In the 10 fastest growing areas,* core cities and 
towns grew 19 percent, surrounding counties grew 20 
percent while the areas themselves grew 43 percent. 
Clearly, Montana's urban areas are growing faster than the 
cities within them or the counties that contain them. In 
other words, Montana's cities are beginning to sprawl. 

Table 4 presents additional evidence of sprawl based on 
1973 estimates of net migration into the counties adjacent to 
five of Montana's most populous counties. Net migration is 
the difference between natural increase (excess of births 
over deaths) and total population Increase. 



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TABLE 4 
-County Effects of Sprawl 



Table 5 compares the EIC results to the Department of 
Revenue's suburban tract figures. 



Net Adjacent 

County Migration (%) County(ies) 



Lewis & Clark +4.2 



Yellowstone 


+2.4 


Cascade 


-1.3 


Gallatin 


+6.9 



lefferson 
Broadwater 



Ravalli 
Mineral 



Musselshell 
Big Horn 



Teton 
Madison 



Net 
Migration {%) 

+26.3 
+ 5.5 

+16.5 
+ 9.5 

+10.3 
+ 6.1 

+ 6.5 

+11.0 



Acres of Subdivision by County 



Subdivision Activity 

Until recently the only available information on statew^ide 
subdivision activity were the "suburban tract" classification 
data generated by the Board of Equalization (now the 
Department of Revenue), for inclusion in its biennial 
reports. For a number of reasons this information has 
inherent inaccuracies of a conservative nature but of 
undetermined magnitude: 

1. There is no definitive definition of a suburban tract. 
The data, gathered by county assessors, are subject 
to time, effort, and interest constraints, as well as 
differing interpretations of the term suburban 
tract. 

2. Generally speaking, lots greater than 5 acres are 
not necessarily included as suburban tract by 
county appraisers and lots greater than 40 acres are 
seldom included (15). 

3. Not all real estate transactions are recorded by the 
county clerk and recorder. There is currently no 
legal requirement to record a deed for those real 
estate transactions falling outside the scope of sub- 
division as defined by the Montana Subdivision 
and Platting Act, enacted in 1973 and amended in 
1974. Also, transactions on a contract-for-deed 
basis, tend not to be recorded at the time of sale. A 
1973 state government inventory of subdivision 
activity in Ravalli County found 62 percent of 
current real estate transactions to be by contracts 
for deed, 73 percent of which were not recorded 
(16). This inventory data suggests that 45 percent of 
transactions in rural land never have been 
recorded. 

During the summer of 1974, personnel from the Environ- 
mental Information Center* (EIC) researched the records of 
plats and of certificates of survey in 35 county courthouses. 
Excluded from the EIC inventory were subdivisions within 
cities and towns and parcels greater than 40 acres in size (see 
Appendix A for inventory methodology). Combining the 
EIC results with the suburban tract data and the results of the 
Ravalli County inventory provides an estimate of statewide 
subdivision activity. 



County 

Beaverhead 

Big Horn 

Broadwater 

Carbon 

Cascade 

Custer 

Deer Lodge 

Fergus 

Flathead 

Gallatin 

Glacier 

Golden Valley 

Granite 

Jefferson 

Judith Basin 

Lake 

Lewis and Clark 

Lincoln 

Madison 

Meagher 

Mineral 

Missoula 

Musselshell 

Park 

Pondera 

Powell 

Ravalli 

Rosebud 

Sanders 

Silver Bow 

Stillwater 

Sweet Grass 

Teton 

Toole 

Yellowstone 



Dept. of Revenue 
March, 1973 (17) 

1,887 

228 

86 

2,325 

4,704 

768 

2,769 

1,142 

100,079 

15,573 

1,909 

1,180 

5,415 

2,125 

193 

19,977 

14,406 

8,163 

2,187 

870 

1,004 

33,800 

-0- 

5,454 

776 

12,205 

19,239 

342 

-0- 

-0- 

6,029 

380 

651 

702 

17,243 



EIC 

Summer, 1974 (18 ) 

1,867 
662 
151 

2,621 

8,460 
17,876 

1,832 

1,460 

56,442 

19,999 

635 

1,204 

3,888 

2,866 

1,460 

9,880 
10,659 

2,994 
13,475 

1,402 

2,136 
40,816 
33,031 

8,052 
558 

6,928 

50,267 

454 

1,398 

2,129 

8,713 
703 
353 

2,081 
18,647 



Total Acres Subdivided 283,811 



336,099 



Some obvious discrepancies between the figures can be 
explained easily: 

1. The suburban tract classification also includes 
orchards. This may explain the substantially larger 
Department of Revenue figures in Flathead, Lake, 
and Lincoln counties. 

2. In Custer County, Sundial Estates and Ranchettes 
encompasses 17,000 acres. The land had not been 
platted or filed; however 40-acre tracts were being 
sold. 

3. In Madison County, Shining Mountains has sub- 
divided 10,784 acres; 5,320 were recorded after 
March, 1973. 

4. In Musselshell County, R.L.C., Inc. has subdivided 
15,440 acres since March, 1973. Reforestation, Inc. 
has subdivided 10,306 acres; the dates were not 
recorded. Timber Tracts, Inc. holds 3,948 acres. 

a non-profit, public interest group devoted to 



The Department of Revenue figures exceed those of the EIC 
by 1,000 acres or more in four counties; Glacier, Granite, 
Lewis and Clark, and Powell. Adding these differences to 
the EIC total of 334,018 acres reveals that, as of summer, 1974, 
there are at least 347,924 subdivided acres in the 35 counties. 



Data compiled for Flathead County indicate that, as of May, 
1973, only 41 percent of all lots created through subdivision 
since the county was incorporated (1893) had been built 
upon and that 27 percent of the lots created had never even 
been sold (21). 



According to the Department of Revenue these 35 counties 
contain 98 percent of the subdivided acreage statewide. If 
the 347,924 acres include 98 percent of all subdivisions, then 
355,400 acres have been subdivided statewide. But this 
figure probably understates the actual total considerably 
because many real estate sales are on a contract-for-deed 
basis. As stated earlier, about 45 percent of contracts for 
deed in Ravalli County were not recorded. Conservatively 
assuming that 30 percent of subdivided acreage statewide 
has not been recorded, then about 510,000 acres lying 
outside cities and towns may have been subdivided into 
parcels less than 40 acres. 

For comparison, 510,000 acres is almost 1 percent of the 
roughly 60 million acres of private land in Montana. It is 60 
percent of the acreage of existing urban (built-up) areas and 
it equals 1 acre for every 1.5 persons residing in the state in 
1974. 

From 1963 to 1974 the acreage in suburban tracts increased 
by an average of 23 percent per year. From March 1972 to 
March 1973 suburban tract acreage increased 28.3 percent 
(See Table 6). Projecting the 23 percent average annual 
increase, Montana's subdivided acreage would increase 
from the estimated 510,000 acres of today to roughly 4.9 
million acres by 1985, exceeding 8 percent of the private 
land in the state. Previously discussed deficiencies in the 
suburban tract data may have resulted in overestimating the 
rate of increase, but even a conservative 10 percent annual 
increase would result in 1.4 million subdivided acres by 
1985. 



TABLE 6 (17, 19, 20) 



1963 
1972 
1973 

1963-1973 
1972-1973 



Speculation in Land 

The subdivision of agricultural land is all but irreversible. 
The dispersal of ownership can make it too costly to 
combine parcels into economically viable agricultural units 
or into units for other large-scale developments. As cities 
continue to expand some conversion of land to urban uses is 
inevitable and in the public interest. But the subdivision of 
land for which there is little demand or for speculative 
purposes is a long-term public loss. 



Acreage in 


Acreage in 


Agricultural Land 


Suburban Tract 


53,416,723 


36.501 


52,037,832 


225,886 


51,773,311 


289,876 


Decrease 


Increase 


1,643,412 


253,375 


264,521 


63,990 



A 1974 U.S. Forest Service study of 11 subdivisions 
developed in the West Yellowstone area since 1966 reports 
that only 10 percent of the lots created had been built upon 
and that 68 percent of them had not been sold (22). 

Little additional information on land speculation is avail- 
able. However, the 80-year period covered by the Flathead 
County sample lends it substantial significance. If similar 
amounts of subdivided land throughout the state are unsold 
and undeveloped, then perhaps 306,000 acres have been 
subdivided without justification of any housing need. 



Conversion of Agricultural Land 

U.S. Department of Agriculture data released in January 
1974 indicate that there has been a 4.7 million acre decrease 
in acreage in its "land in farms" category during the last 
decade in Montana (23). State Department of Revenue 
figures suggest that 1,643,412 acres of land were removed 
from agricultural use during the same period. Land is taken 
from agriculture for a number of uses: Conversion to 
residential or second home use, annexed by cities or towns, 
conversion to industrial or commercial uses, mining, for 
reservoirs and highways. Land removed from agriculture for 
these uses usually is taken forever. 



Of the Department of Revenue's estimate of 1.6 million acre 
decline in agricultural land, 16 percent (264,521 acres) was 
removed from agriculture during the 1972-'73 farm year 
alone. At this rate there would be 4.5 million fewer 
agricultural acres in 1990 than in 1973. Table 6 documents 
these changes in the use of land. 

Table 7 shows acreage changes in the three major classes of 
agricultural land: irrigated, non-irrigated, and grazing. 
Interestingly, irrigated land shows the greatest proportional 
decrease, 7.7 percent. However, one reason for the 
decrease may be that acres placed in irrigation in 1963 
proved economically unsuccessful and were removed. This 
explanation is supported by the fact that irrigated acreage in 
1966 was substantially less than that in 1963. Non-irrigated 
and grazing land had roughly the same acreage decreases, 
although the percentage decline in non-irrigated acreage 
was three times that for grazing. 

During the last year acreage in irrigated and non-irrigated 
farm uses has increased. Probably the increase is due to new 
irrigation projects and the cultivation of idle land in 
response to increased demand and prices for agricultural 
commodities. Grazing land decreased substantially in 1972- 
'73 mainly through conversion to non-irrigated cropland. 



—12— 



TABLE 7 (19, 24, 20, 17) 
Acres in Agricultural Land Classification 



Year Irrigated 



Non- 
Irrigaled 



Crazing 



1963 1,477,428 

1966 1,363,159 

1972 1,362,485 

1973 1,363,171 



11,514,455 
11,870,777 



38,330,977 
37,976,082 



Change in Acreage by Land Class 

% Grazing 



Non- 
Year Irrigated % Irrigated 



1963-1973 -114,257 (-7.7) -751,976 (-6) -831,321 (-2.1) 

1966-1973 +21 (-0-) 



The data on land conversion also indicate the dual effects of 
subdivision activity on agriculture. Not only is the acreage 
available to agriculture reduced, but the land taken out of 
production tends to be of better than average productivity. 



TABLE 9 (19, 17) 
Average Assessed Value per Acre (Dollars) 







Non- 




Irrigated 


Irrigated 


1%3 






7 Counties 


39.13 


20.21 


State 


33.03 


12.43 


1973 






7 Counties 


33.55 


22.78 


State 


32.92 


16.42 



Crazing 



3.74 
3.39 



It is apparent, that to the extent average assessed value per 
acre reflects the productivity of land, the seven counties 
with the greatest subdivision activity generally include land 
of better than average productivity. The superiority of the 
land in these counties is most apparent for non-irrigated 
land. 



Table 8 shows changes in acreage by agricultural land class 
for the seven Montana counties* having the most land 
classified in suburban tracts. During the last decade there 
have been 15.3 percent and 15.2 percent decreases in non- 
irrigated and grazing acreages, respectively, in these 
counties. These are significantly greater than the rates of 
change for the state as a whole, 6 percent and 2.1 percent 
respectively. The change in irrigated acreage in these 
counties has been negligible. The number of acres irrigated, 
however, is heavily dependent on single factors such as a 
new irrigation project. 



TABLE 10 (19,17) 
Percent Change in Assessed Value Per Acre 



1%3-1973 

7 Counties 
State 



-14.3 
- .3 



Non- 
Irrigated 

+12.7 
+32.1 



+3.9 
+6.3 



TABLE 8 (19, 24, 20, 17) 
Change in 7-County Acreage by Class 



Non- 
Irrigated % Irrigated 



% Crazing 



1963-1973 -97-098 (15.3) -615,157 (-15.2) 

1966-1973 -3707 (-.9) 

1972-1973 -4929* (-1.1) - 9,222 (- 1.5) - 80,545 (- 2.0) 



Table 10 indicates that the average assessed value per acre, 
and thus the average productivity of all irrigated land in the 
seven counties, dropped rather sharply from 1963 to 1973 
while the average assessed values of the state's irrigated land 
in general remained about the same. The decline in average 
assessed value per acre indicates that the irrigated land 
going out of production in the seven counties is of better 
than average production for the counties. Because the 
seven counties are of generally better than average 
productivity to begin with, the land going out of production 
in these counties therefore is some of Montana's best agri- 
cultural land. 



•Excluding Lewis and Clark County. Lewis and Clark County had a significant increase in 
irrigated acreage in 1972-73 due to recently complete irrigation projects. Including this 
County would change the figure to +3628. 



The assessed value per acre of agricultural land is an 
indicator of the productivity of the land. The assessed value 
is derived from estimates of the land's yield and is not 
affected by inflation. Table 9 compares the average assessed 
value per acre in the seven counties with that of the state as a 
whole. 



Information used in this discussion has been abstracted 
from Biennial Reports of the Montana Board of 
Equalization. The data are generated by county assessor's 
officers and are subject to the inaccuracies previously 
discussed. However, in aggregate these statistics can be 
assumed reasonably sound. 



'Flathead, Gallatin, Lake, Lewis and Clark, Missoula. Ravalli and Yellowstone. 



LAND CONVERSION AND 
ECONOMICS: THE COSTS 
OF GROWTH 

Decisions committing land, often irreversibly, to a variety of 
uses are made daily in Montana. In many case, the decisions 
are determined by conventional profit and loss accounting, 
personal income accounting, or traditional cost and benefit 
analysis from the perspective of an Individual agency. 
Generally, decisions are being made on a basis of what pays 
off for the decision maker. This is a popular way of doing 
things and has received little scrutiny. By definition 
however, this kind of decision making normally excludes 
consideration of the public impacts (externalities) it causes. 
The perspective of the individual usually is limited to a single 
purpose analysis such as return on investment, economic 
gain, point A to point B transportation networks, engineer- 
ing feasibility, and so on. 

No doubt these are valid concerns for the single decision 
making entity. However, decisions which affect land use 
usually have impacts which extend to the wider com- 
munity. A decision to develop land either for residential or 
Industrial purposes has many impacts on the local com- 
munity, including: 

1. A rise in taxable valuations in the vicinity of the 
development, which means higher taxes on nearby 
residents and Increased revenues to the govern- 
ment having jurisdiction. 

2. Increased traffic and congestion on nearby roads 
and In shopping areas. 

3. Increased enrollment in the public school system. 

4. Increased demand for public services, such as 
roads and road maintenance, libraries, police and 
fire protection, water supply and sewage and solid 
waste disposal. 

5. The loss of previous land uses and the values they 
provided. 



6. A temporary increase 
construction activity. 



development and 



7. In the case of industrial development, a peak 
construction cycle and increased and heavier use 
of local roadways and public utilities, all producing 
complicated effects on the local economy. 

8. Perhaps a transfer in local retail trade Income if the 
new families moving Into the area are from another 
part of town, or a net Increase In community 
Income If they are mostly from outside the local 
area. 

9. An Irreversible commitment of land that will 
influence local growth patterns. Alternative uses of 
the land may be foreclosed. The development may 



have contributed greater benefits to the total com- 
munity If it had used land resources elsewhere. 

Traditional economic analysis, market economics, con- 
centrates on the payoff to the individual or decision making 
unit. This ecnomic concept of focusing on payoff also can be 
applied by the total community through a modified cost and 
benefit approach. This involves assessing the impact of 
proposed land uses in terms of detriments and benefits 
accruing to the community immediately and in the future, 
and determining how the detriments and benefits will be 
distributed in the population. This approach can provide 
information needed to consider a proposed project in terms 
of its impacts on the total community. Major land use 
decisions are the most significant determinant of the future 
environments of cities, towns, and rural areas. 

The first step In assessing a development's impact on the 
community Is to define "community." It can be a political or 
tax jurisdiction, a geographic area or a region. For purposes 
of fiscal analysis it is helpful to use tax jurisdictions. For large 
developments it may be desirable to use large geographical 



Fiscal impacts are the easiest to define. Obvious benefits 
include increased tax revenues for the school district, and 
for the city or county. Demands for schools, sewers, storm 
drains, police and fire protection, municipal water supply, 
road upgrading and maintenance and public facilities are 
obvious public costs. Communities should ask (25): 



How many children will the new development 
bring, either directly or indirectly? 

Does the present school system have capacity to 



absorb additional children? 



If not, what will be the cost of additional teachers, 
staff and supplies? 

Will there be a need for additional buildings and 
playgrounds? If so, how much will they cost? 

Where will the money come from to meet these 
increased costs? 

At what stage of development will the community 
need to install a sewage system, a sewage treat- 
ment plant? 

How will the development affect the community 
water supply? Will additional wells lowerthe water 
table and conflict with existing water rights? Can 
the water supply be increased; at what cost? 

Will additional equipment and machinery be 
needed? Will additional workers be needed? 

How will the community dispose of the additional 
waste that will be generated by this development? 
Where will the community purchase new land fill 
areas? What will they cost? 



• Will the installation of new, or additional, public 
utility systems mean special assessments for the 
entire community? 

• Will the community's present recreational facilities 
increase in demand? 

• Will any new recreational facilities created by the 
proposed development be open to the community 
as a whole? 

• Has the community made adequate provisions for 
parkland and open space? 

• If there is a volunteer fire system, will additional 
demands create a need for a paid staff, or for new 
fire fighting equipment? 

• Will the existing water system provide adequate 
fire protection? 

• Can the police force handle an Increase in city 
population density, or will it have to enlarge to 
maintain the same quality of protection? 

• Will the police or fire departments need a new 
station, or new equipment — automobiles, motor- 
cycles, call boxes? 

• Will the new development eventually force a need 
for expanded health care of the poor and elderly? 

• Will there be a need for additional hospital or clinic 
capacity? If so, how many people will need to be 
hired; what buildings will be needed? 

• What new roads will have to be built and what old 
roads will have to be widened, strengthened and 
paved? How much of the cost of the expansion will 
the community have to bear? 

• Will the community have to supply additional 
public transportation? Will expansion of 
transportation requirements mean assessments 
against the existing population? 

• What will be the effects on existing industrial and 
commercial enterprises, particularly on those in 
city or town centers? 



Another economic benefit associated with development 
includes an increase in community income due to real 
estate transactions, legal work, surveying and construction 
activity, and financing arrangements. Market values also 
may increase in the local area, and although this may be 
considered an increase in community wealth it may mean 
higher property taxes for nearby landowners, depending on 
local valuation and assessment procedures. 

Impacts that are primarily non-economic are determined by 
the proposed development site, how the location relates to 
the surrounding community, and the prior use and value of 
the land. A development's impact on water quality will 
depend on the proposed source of water and its relation- 
ship to local watersheds, water tables, and the existing 
demands on them. The effect on air quality will depend on 
many factors including atmospheric conditions, 
transportation networks, and traffic generation. 

The location of a development may be precedent setting 
and significantly affect future land use patterns of the com- 
munity. The implications of development location are 
important and deserve careful study. Development of a 
scattered rather than compact nature has a pronounced 
impact on the quality of local wildlife and recreation 
resources. Valuable wildlife and recreation experiences are 
dependent on availability, access, and quality of resource. 
Suburban sprawl and second home development tends to 
decrease these values. Sprawl also requires many miles of 
roads, generates additional traffic and Increases fuel 
consumption. Compact urban areas are an effective tool for 
conserving energy and free much human energy for 
activities other than commuting. 

Rural subdivisions have similar impacts at perhaps greater 
cost. Lots remain unframed and unoccupied as owners wait 
out a speculation game. Land speculation confounds public 
revenue and expense forecasts and often causes land 
suitable for recreation or agriculture to lay idle. If enough 
lots remain undeveloped, market values of the property 
may fall, thus decreasing revenues to the local community. 

Non-local ownership of subdivided land affects the timing 
of local fiscal analysis. Community income generated by 
non-local vacationers varies with the season and the 
frequency of use. Public cost estimates are invalidated as 
"vacation homes" become primary residences. Unforeseen 
demand can occur for public services, particularly road 
maintenance, water and sewage systems and schools. 



Fiscal analysis also depends on other assumptions made 
about the proposed development. How many permanent, 
seasonal, or short-term (construction) residents are 
projected? Will they be newcomers or from another part of 
the same community? How long will it take for the develop- 
ment to be completed? Will the developer merely sell lots or 
also construct housing? Does the development comple- 
ment or overload current and planned future community 
facilities and services? The answers to these questions 
indicate when the fiscal impacts will occur and whether a lag 
may exist between demand for public services and the 
financial ability of the jurisdiction to pay for them. 



When speculative activity and non-local ownership occur in 
rural areas attendent detrimental impacts are magnified. 
Surrounding land values become linked to the success or 
failure of the development. As the local economy becomes 
dependent on seasonal recreation it fluctuates 
unpredictably. Demand for services strain small com- 
munities that lack the resources to serve residents of distant 
subdivisions with roads, health care and police and fire 
protection. Locally valuable open space, recreation and 
wildlife resources are diminished and local social structures 
and mores are influenced by newcomers and vacationers 
who may not respect community traditions. 



-15— 



The subdivision of agricultural land has substantial 
economic and non-economic long-term costs. Sustainable 
agricultural production, open space, and a life-style 
dependent on a proximity to agriculture — all are foregone. 
As land values increase due to subdivision activity, market 
values of farm properties also increase in a chain reaction 
that gobbles up farmland and will eventually result in a 
decline in the agricultural base of the community and the 
nation as a whole. In the face of well-documented inter- 
national food shortages and a U.S. policy of assisting in 
reducing these shortages, loss of agricultural land has 
significant national implications. 

Whether for industrial, residential, recreational or second 
home purposes, land use conversions have detriments and 
benefits affecting the total community. Many of the fiscal 
and primary economic effects can be quantitatively 
estimated. Other physical and social effects can only be 
qualitatively discussed. Distributional effects of detriments 
and benefits must be analyzed over time and among 
segments of the population: Who will reap the benefits and 
who will suffer the detriments? Will today's citizens reap 
and tomorrow's citizens suffer? 

Current Literature and Research 

Average county-wide mill levies in the seven Montana 
counties which grew fastest between 1960 and 1970* were 
compared to average county-wide mill levies for the state as 
a whole. Mill levies are the taxes levied per dollar of 
valuation; they give an indication of changing tax burden 
over time. The mill levies used included state, county and 
school levies. Table 11 shows that in the seven fastest 
growing counties the average tax increased 38.2 mills, while 
statewide taxes increased 30.2 mills in an average county. 
Hence the seven counties had a tax increase 25 percent 
greater than average for the state. 

TABLE 11 (19, 20) 
Average County-wide Mill Levies 





1964 


1972 


Difference 


Statewide 


107.73 


138.13 


30.4 


7 Counties 


116.45 


154.65 


38.2 



These results tend to contradict the often-heard contention 
that growth leads inevitably to increased economies of scale 
in financing community public services, but final deter- 
mination of the relationships among rate of growth, 
population size and taxes awaits further research, and must 
include consideration of the quality of services provided. In 
the example above, quality of services was not considered. 

Few current subjects produce more controversy than those 
dealing with the costs and benefits associated with com- 
munity growth. Fundamental questions concerning how 
one computes costs and benefits as well as how one should 
make final comparisons are just two issues that remain 
unresolved. In addition, what factors need to be taken into 
account when conducting cost-benefit studies is unclear. 

Resolving these issues is beyond the scope of this study. But 
Montana county commissioners are increasingly concerned 



about the costs of growth in their jurisdictions. One effort to 
help local decision makers and the public learn what new 
subdivisions may cost, in terms of additional publicservices, 
is the environmental assessment procedure established by 
the Department of Intergovernmental Relations in carrying 
out the provisions of the Montana Subdivision and Platting 
Act. Under this process, developers must provide the com- 
missioners with detailed information on what additional 
services a project would require and who would be asked to 
bear the costs. (See Sub-chapter 22 of Title 22, Montana 
Administrative Code.) 

What follows is a brief summary of some recent studies that 
have tried to specifically address the costs of growth. To 
some extent these studies try to lay open the same issues 
intended to be addressed in the subdivision environmental 
assessments. The summaries are presented to acquaint 
readers with the variety and scope of research currently 
under way. 

A. Impacts of Large Recreational Developments Upon 
Semi-Primitive Environments: The Gallatin Canyon Case 
Study (26), investigates the effects of the Big Sky real estate 
development on the Gallatin Canyon and Gallatin County in 
southwestern Montana. Principal economic conclusions of 
the study follow: 

1. From 1970 to 1974 the average price per acre for tracts less 
than 40 acres lying outside city limits rose to about $5,600 
from $3,000, an increase of 87 percent. 

2. From 1%9 to 1975, annual maintenance costs for U.S. High- 
way 191 a re projected to i ncrease to $1 52,000 from a base of 
$103,000 annually. 

3. Improvements at Gallatin Field, the Bozeman airport, are 
expected to require $10.3 million over the next 16 years. 

4. Enrollment at Ophir School (District No. 72) increased 
from 10 pupils in 1970 to 62 in early 1974. The school budget 
jumped to $40,000 from $8,500 during the same period. 
Levies in the school district jumped from 140.16 mills in 
1970 to 185 mills in 1974, a 32 percent rise. 

5. Since 1970, about $7 million has been added to local 
payrolls. 

6. A 1973 sample of attitudes expressed by fishermen and 
hunters found that 68 percent of the anglers and 78 
percent of the hunters feared that the Big Sky project 
would harm the quality of their recreational hunting and 
fishing experiences. 

B. A research project (27) by five University of Montana 
seniors under the direction of Professor Arnold Bolle, 
School of Forestry, investigated selected economic impacts 
of two subdivisions near Lolo, Montana: Lakeview Addition, 
and Bailey's Trailer Court. The study found that: 

1. Of the 143 occupied dwellings in Lakeview Addition, 
families sent 144 students to grade school in Lolo and 36 
students to high school in Missoula, generating a total 
increase in school operation and maintenance expendi- 



"Missoula. Galiatin, Flathead, Lewis and Clark. Ravalli. Cascade and Yellowstone. Lincoln 
County would have ranked amond the list of seven but was excluded because its growth 
was caused primarily by the construction of libby Dam, an isolated project. Ranking is 
based on 1970 federal census 



-16- 



tures of $125,684. In 1973, the residents paid $57,327 in 
property taxes, 68 percent of which ($38,982) went to the 
public school system, according to the county com- 
missioners. Simple subtraction reveals a net financial drain 
on the school systems of about $88,000. 

2. In Bailey's Trailer Court, owners of 60 mobile houses paid 
$5,520 in personal property taxes in 1973. The real property 
tax on the trailer court itself was $989. Hence total taxes 
were $6,509 on the trailers and the court, 70 percent of 
which ($4,556) went to education. Residents of Bailey's 
Trailer Court sent 51 students to school in Lolo, costing the 
school district $31 ,21 2; one student attended Sentinel High 
School in Missoula, costing that district $1,071. Subtract- 
ing the $4,556 paid in school taxes from the total school 
system costs of $32,283 reveals a financial drain of almost 
$28,000. 

C. Economic information continues to be gathered about 
the Impact of large-scale industrial development on the 
town of Colstrip in southwestern Montana. Workers are 
building two 350-megawatt coal-fired power plants in a 
previously rural setting. Here are some highlights: 

1. Federal projections of "most likely" coal developments 
predict an increase of 6,000 residents by 1985, 1 ,500 percent 
more than in 1970. Compared to 1973-'74 school year 
records, school enrollment will increase 470 percent by 
1985 to 1,600 students, requiring capital expenditures of 
$6.4 million. Two thousand housing units will be required 
by 1985, not counting the temporary demands of 
construction families (28). 

2. The Colstrip school district budget has increased from 
$276,647 (1972-'73) to a projected $976,914 for 1974-'75. The 
budget projects a per-student cost of $1,062, an increase 
over the current $1,028 (29). 

3. Taxable valuation in Rosebud County increased 32 percent 
from 1973 to 1974, to $26.65 million. Power generating 
facilities now nearing completion contributed only 26 
percent of the increase (30). Colstrip school district mill 
levies increased 13 percent between 1972 and 1974, from 
114.2 mills to 129.3 mills (30). 

D. Local Tax Impact of Recreational Sub-Divisions, A Case 
Study (31). This is a study of a "recreational, rural- 
residential" subdivision of 1,300 acres into 1,850 lots in 
central Oregon. Its principal conclusions: 

1. Currently there are 67 improved lots, 26 year-round 
dwellings, 23 public school students and three com- 
munity college students. Subdivision contributed $82,000 
in county and school district property tax revenues with a 
mill rate of .2259. Estimated costs of local government 
public services to the subdivision, including school and 
community college, were $25,255, with a result of a net 
fiscal contribution of $56,745. 

2. Assuming 50 percent development and a constant mill 
levy, the analysis would discover a net fiscal deficit of about 
$93,000. To cover the deficit the county-wide mill levy 
would have to reach .2388. 

3. A full development, the fiscal deficit would reach $293,748. 
The mill levy would have to increase to .2627. 

E. Exploring Options for the Future: A Study of Growth in 



Boulder County, 
conclusions: 



Vol. V. (32). Some of this study's 



1. Boulder, Colorado, per capita city government 
expenditures in constant (1967) dollars increased from a 
1950-'53 average of $42.80 to a 1968-'70 average of $75.30, a 
76 percent jump during the city's expansion. 

2. During the period analyzed, per capita income also 
increased, from $1 ,899 in 1950-'53 to $2,851 .70 in 1968-'70, a 
50 percent increase in constant dollars. 

3. Comparing per capita city expenditures with per capita 
income, spending increased 1.5 times faster than income 
of the taxpayers. 

F. The Costs of Urban Growth: Observations and 
judgments (33). This study offers a summary of available 
information on the costs of growth. A summary of Its 
conclusions: 

1. On the average, large communities and fast growing ones 
cost more money per capita to operate than do small ones 
and slowly growing ones. If there is an optimum 
community size for maximum governmental efficiency, it 
appears to be in the neighborhood of 25,000 people. If 
there is an optimum growth rate for the same purpose, it 
appears to be close to zero, since any rate higher than this 
leads to higher per capita costs. 

2. On the average, the quantity and quality of public services 
is adversely affected by large population size and by high 
population growth rate. Contrary to popular belief, public 
services appear to be better in small and slowly growing 
communities than in large and fast growing ones. 

3. Colorado Springs, during two decades of rapid growth, 
suffered the same costs that fast growing cities generally 
suffer: increasing tax rates (at constant dollars), declining 
quality of services, decreasing average per capita income 
(relative to the national average), and increasing 
congestion and crime. 

G. The Direct Costs of Growth (34). This study compared 
information on 34 Colorado counties, excluding Denver 
County, divided into three groups: 12 "growth," 11 
"stable," and 11 "declining" counties, based on population 
changes between 1960 and 1970. Principal conclusions: 

1. Analysis of per capita expenditures by all local juris- 
dictions within any single county (including counties, 
municipalities, school districts and special tax districts) 
revealed that total per capita expenditures increased in 
each of the three groups during the study period but in 
varying amounts: Growth Group, 46.7 percent; Stable 
Group, 50.6 percent; and Declining Group, 40 percent. 

2. This table shows total expenditures as a percentage of 
adjusted gross personal income at beginning and end 
points of the study period: 

Change in Per Capita Expenditures (percent) 
Croup 1%0 1970 



Growth 

Stable 

Declining 



12.5 
15.6 
27.3 



12.2 
17.1 
26.9 



LAND USE POLICY TODAY: 
Piecing it together 

Montana has a land use policy. But it is implicit, hidden away 
in the nooks and crannies of the law and of the 
administrative codes of the many agencies of state govern- 
ment. For the people, the legislature, and the governor, an 
unstated policy is hard to evaluate. It is difficult to suggest 
changes in an unstated policy or use it to measure the efforts 
of state agencies. 

Montana has policies at two levels. There are policies which 
direct the state agencies and there are policies which 
establish and guide the actions of local government in the 
land use area. 

State Agency Review 

Seven state agencies' administer the bulk of law in which 
Montana's unstated land use policy can be discovered. 
Montana's legislature, like many others, has attached 
declarations of state policy to many laws to direct their force 
to a specific function or area. Taken together all these 
isolated policy statements comprise an expression of legis- 
lative policy. But the legislature has rarely considered the 
interaction of one policy statement with another. Within the 
overall policy there are many contradictions and incon- 
sistencies. No means has been provided to resolve these 
conflicts. Conflict resolution must await the action of the 
governor, the courts, or the legislature. This does not have 
to be so. The legislature could establish clear priorities and 
procedures for implementing a consistent state policy with 
regard to the use of land. 

State land use policy directs the use of state-owned land and 
the actions of state agencies which influence the use of 
private lands. Private land use decisions can be affected 
directly by state policy, through regulation, and indirectly 
through the secondary effects of decisions made concern- 
ing state lands and projects. For example, the state directly 
affects the use of certain subdivided lands through its review 
of sanitary facilities. Whereas a decision to locate a highway 
interchange affects directly only the land on which it is built, 
it may indirectly affect the use and value of the land in a wide 
surrounding area. 

Many of Montana's state agencies exercise these direct and 
indirect influences over the use of the state's land. The 
seven reviewed in this study exercise most of that influence. 

THE FISH AND CAME 
COMMISSION 

The Fish and Came Commission, acting through the 
Department of Fish and Game, has been granted a broad 
range of powers to influence and control the use of land in 
Montana. This range of powers implements a state policy of 
providing perpetual hunting and fishing opportunities to 
the residents of the state. The 1965 legislature declared: 



It is hereby declared to be the policy of the state of 
Montana that its fish and wildlife resources and 
particularly the fishing waters withih the state are 
to be protected and preserved to the end that they 
be available for all time, without change, in their 
natural existing state except as may be necessary 
and appropriate after due consideration of all 
factors involved (Section 26-1501, R.C.M., 1947).* 

This policy has been applied directly to any action by a state 
agency or political subdivision, such as counties and cities, 
which might affect the natural form of a streambed or its 
banks. All agencies and political subdivisions are required to 
file notice, plans and specifications of such action with the 
department before commencing construction. If the 
department finds that the proposed project adversely 
affects any fish or game habitat it must recommend 
modifications or alternatives to mitigate the effects. If the 
agency proposing the project refuses to comply with the 
recommendations, the department may have the dispute 
submitted to binding arbitration by three residents of the 
county or counties where the project is located. The 
arbitrators are selected by judges of the local district court. 

The legislature also has clearly stated the public's right to use 
navigable waters, whether the water crosses public or 
private land, for fishing (26-338), and has directed the 
department to obtain hunting and fishing rights on lands 
surrounding federal wildlife preserves and refuges (26- 
1120). 

The legislature has indicated, however, that the policy of the 
state is to provide hunting and fishing opportunity without 
placing additional burdens on local taxpayers. In counties 
where the department holds more than 100 acres of land it is 
directed to pay "in lieu of taxes" the amount the county 
would be due in taxes if the land were in private ownership 
(26-133). In obtaining hunting and fishing rights around 
federal preserves and refuges, the department is authorized 
to compensate landowners for those rights. And when 
rights granted Fish and Came to control waters on state 
owned lands for the propagation of fish diminish the value 
of the land around those waters to a potential buyer, the 
rights granted the department may be terminated on notice 
to the commission (26-118). 

The department also is charged with the preparation of the 
Statewide Outdoor Recreation Plan and the delineation and 
maintenance of state parks, monuments, and recreation 
areas and exercises direct control over the use of such lands. 
By this mandate the legislature clearly established a state 
policy regarding the conservation of "scenic, historic, 
archaeologic, scientific, and recreational resources of the 
state, and for providing for their use and enjoyment, 
thereby contributing to the cultural, recreational, and 
economic life of the people" (62-301). The location of a state 
park, monument or recreation area can significantly affect 
use of surrounding lands. 



•The departments of Fish and Game, Health and Environmental ! 
Intergovernmental Relations, Natural Resources and Conservatic 



The State Antiquities Act (enacted in 1973) is administered 
by the department to provide for the "identification, 
acquisition, restoration, enhancement, preservation, 
conservation and administration of the historic, archaeo- 
logical, paleontological, scientific, and cultural sites and 
objects of the state of Montana" (81-2502). The department 
is given, with the agreement of the state Historical Society 
and the state Board of Land Commissioners, direct control 
over state lands for the purposes of the Antiquities Act. The 
land board may withdraw or reserve additional state land as 
needed to protect a site or object registered under the act. 
No state land may be sold or developed if such action will 
disturb a site or object registered under the act. The legis- 
lature has declared the care and management of antiquities 
"a worthy object of the trust as specified in [the section of 
the codes ascribing powers and duties to the Board of Land 
Commissioners]" (81-2504). 



The legislature also has authorized Fish and Came to enter 
into agreements with private landowners to provide for the 
protection or registration of sites and objects on private 
lands and has directed the department to use the courts if 
necessary to prevent the waste, removal or destruction of a 
registered site or object. A court may grant an injunction for 
up to a year and meanwhile, the department may be 
directed to present to the parties involved a plan for the 
protection of the site or object (81-2510). 



THE DEPARTMENT OF HEALTH 
AND ENVIRONMENTAL SCIENCES 

The Department of Health and Environmental Sciences has 
little direct control over the use of land in Montana; 
however, the regulatory and licensing authority it exercises 
has substantial indirect effect on land use. 

The legislature has charged the state Board of Health, acting 
through the Department of Health, with the regulation of 
various land uses that are of only minor significance in terms 
of this study. The department has the sole responsibility for 
the preparation and administration of a comprehensive 
health plan for the state and thus is involved with the siting 
of non-profit hospitals and other health facilities. Tourist 
campgrounds and trailer courts require a license from the 
department but review of their applications is limited to 
sanitation and the protection of public health (69-5602 and 
69-5601). 

In addition, the legislature has declared "the public policy 
of this state to control refuse disposal areas to protect the 
public health and safety" (69-4001). Private refuse disposal 
areas must obtain a license from the department and public 
facilities must meet requirements outlined in the law. No 
agency is charged specifically with long-term solid waste 
planning for the state. 



In addition to the direct controls granted to the depart- 
ment. Fish and Game administers and enforces a number of 
laws which, in achieving certain policy objectives indirectly 
affect the use of land. Chief among these indirect influences 
is the power to set and enforce hunting and fishing seasons 
and catch limits and to expend funds for the protection and 
propagation of fish and game and non-game animals. 



Fish and Game wardens are authorized to enforce state laws 
pertaining to criminal mischief, trespass and littering (32- 
4410) on private lands opened to the public for recreation 
(26-110.1). In addition, wardens enforce laws prohibiting 
harassment of game or livestock by snowmobiles (53-1020), 
and driving vehicles off roads or trails without permission 
(26-301). The department also may offer several forms of 
relief to private landowners whose property is subject to 
excessive damage from wildlife. 



These laws and others like them indicate an unstated policy 
to induce landowners to open their lands to the public in 
exchange for services provided by the state. In fact, the 
whole body of laws administered or enforced by the 
Department of Fish and Game embodies a state policy on 
outdoor recreation, hunting and fishing. Unfortunately, the 
legislature has failed to clearly establish the relationship of 
the policies administered by Fish and Game to other policies 
the legislature has promulgated. Even in the one instance 
where the legislature has provided a procedure to identify 
and resolve interagency conflicts no guidance is given to the 
arbitrators: what they are to consider in their decision is left 
to their discretion. 



The department also supervises local boards of health 
which, among other duties, are responsible for abating 
public nuisances affecting health. The broad definition of 
nuisance in the statutes could permit such abatement to 
have a significant impact on land use: "Anything which is 
injurious to health, or is indecent or offensive to the senses, 
or an obstruction to the free use of property, so as to inter- 
fere with the comfortable enjoyment of life or property" 
(57-101). This is the law cited by the new residents of a rural 
subdivision when they wish to force a dairy, hog farm or 
other agricultural operation out of their area by alleging that 
the farm is a public nuisance. Montana's nuisance law was 
enacted in the late 19th century and has not been 
substantially amended since then. The policy implications of 
the law have been left to the courts and the department. 



Water 



The 1967 legislature dictated firm policy on the quality of 
public water supplies and directed the Department of 
Health and Environmental Sciences to implement that 
policy: "to protect, maintain, and improve the quality and 
potability of water from public water supplies and domestic 
uses" (69-4901). 

The same legislature protected other waters of the state by 
another broad policy statement: 

It is the public policy of this state to: 

a) conserve water by protecting, maintaining, and 
improving the quality and potability of water for 
public water supplies, wildlife, fish and aquatic life, 



—19- 



agriculture, industry, recreation, and other 
beneficial uses; 

b) provide a comprehensive program for the pre- 
vention, abatement, and control of water pollution 
(69-4801). 

The definition of water pollution is quite broad and includes 
any substance, "likely to create a nuisance or render the 
waters harmful, detrimental, or injurious to public health, 
recreation, safety, welfare, livestock, wild animals, birds, 
fish, or other wildlife" (69-4802). Protected state waters 
include any body of surface water, irrigation and drainage 
systems, and underground water. The legislature also 
declared that it is not necessary for wastes to be rendered 
more pure than the natural condition of the receiving water. 
"Natural" has been defined to include pollutants from 
runoff or percolation over which man has no control or 
material from developed areas where all reasonable soil and 
water conservation practices have been applied (69-4801). 

The legislature's directions to the Board of Health describe a 
specific policy of maintaining the highest practicable water 
quality while giving consideration to the water's "most 
beneficial use," and social and economic costs. Sec. 69- 
4808.2 directs the board, among other things to: 

1. Formulate standards of water purity and 
classifications of water according to its most 
beneficial uses, giving consideration to the 
economics of waste treatment and prevention. 

2. Require that any state waters whose existing quality 
is better than the established standards as of the 
date on which the standards become effective, be 
maintained at that high quality unless it has been 
affirmatively demonstrated to the board that a 
change is justifiable as a result of necessary 
economic or social development and will not 
preclude present and anticipated use of these 
waters. 

The Department of Health and Environmental Sciences 
administers a permit system covering the discharge of 
sewage, industrial and other wastes into state waters and 
may impose limitations on their volume, strength or other 
characteristics. In the administration of the water pollution 
control laws, the department and board are advised by the 
state water pollution advisory council, which is composed of 
public and private representatives having special interest in 
the problem of water pollution control. 

The board and the department have also been designated 
bythegovernor, and asofjune 10, 1974, by the U.S. Environ- 
mental Protection Agency, as the agency to administer the 
provisions of the Federal Water Pollution Control Amend- 
ments of 1972, within Montana. In passing this law Congress 
established as a national objective the restoration and main- 
tenance of "the chemical, physical, and biological integrity 
of the Nation's waters," and recognized that the primary 
responsibility to prevent, reduce, and eliminate pollution, 
and to plan the development and use of land and water 
resources lies with the states (33 U.S.C. 1251). 



There are two programs under the federal legislation which 
significantly affect water pollution control efforts in 
Montana. The first, compilation of Water Quality Manage- 
ment Plans, requires a planning process for waste monitor- 
ing and treatment on an area-wide or regional basis 
throughout the state. The department's Water Quality 
Bureau, in compliance with federal requirements, is 
preparing plans for waste treatment needs in 16 Montana 
river basins and establishing a 20-year regulatory program. A 
significant consideration in the process is the identification 
of agriculturally and silviculturally related pollution, 
including runoff from manure disposal areas and from land 
used for livestock and crops. Also to be identified are mine- 
related pollution sources, including runoff from surface and 
underground mines (33 U.S.C. 1288). The plans are to 
establish priorities for waste treatment facilities and may 
Include guidance for their location. Any plan for guiding 
water treatment facilities will affect profoundly the rate and 
direction of growth of an area. Yet coordination with local 
residents, local governments and other state agencies is not 
well-provided for in this law. The department has, on its 
own, begun procedures for involving citizens in the 
planning process. The state legislature, however, currently 
has no direct involvement in this process. 

The second program, the National Pollutant Discharge 
Elimination System, now the Montana Pollutant Discharge 
Elimination System or MPDES, requires state permits for the 
discharge to surface or underground waters of domestic 
sewage, industrial wastewaters and wastewaters from 
confined animal feedlot operations and large irrigation 
districts. 

The system includes the rules and regulations established 
under the Montana water pollution control act (69-4801 ef. 
seq.) and expands the policies of that act to additional areas 
covered by the federal act. 



Air 



The 1967 legislature also assigned air pollution control 
responsibilities to the department and Board of Health and 
Environmental Sciences under the Clean Air Act of 
Montana. With this act the legislature declared a strong 
policy: 

to achieve and maintain such levels of air quality as 
will protect human health and safety, and to the 
greatest degree practicable, prevent injury to plant 
and animal life and property, foster the comfort 
and convenience of the people, promote the 
economic and social development of this state and 
facilitate the enjoyment of the natural attractions 
of this state (69-3905). 

The policy statement further affirms a need for a distribution 
of responsibility and coordination between state and local 
governments to balance health, economic and social values 
in the public interest. 

The definition of "air pollution" in the statute indicates the 
breadth of the application of the policy: "the presence in 
the outdoor atmosphere of one or more air contaminants in 



—20— 



a quantity and for a duration which is or tends to be 
injurious to human health or welfare, animal or plant life, or 
property, or would unreasonably interfere with the enjoy- 
ment of life, property, or the conduct of business" (69-3906). 

The department and board are granted powers to establish 
standards and regulations under the law. Sec. 69-3913 allows 
stringent air quality standards in those areas of the state 
where pollution sources or population are concentrated, or 
where the nature of the local economy, land and land use so 
requires. Citizen involvement is through the air pollution 
control advisory council and the hearing process authorized 
by the administrative codes. Montana's air quality 
regulations and standards are among the most stringent in 
the nation. They appear to be in compliance with the policy 
of the legislature. 

Additional authority for air pollution control comes from 
the federal Clean Air Act Amendments of 1970. The act 
established national air quality standards and requires states 
to prepare an implementation plan to attain air quality at 
least equal to the standards. If a state fails to comply, the U.S. 
Environmental Protection Agency (EPA) will prepare a plan 
for the state. The plan must include procedures to prevent 
projects that would violate the standards. 

This implementation plan, prepared by the Department of 
Health and Environmental Sciences and approved by the 
governor as required by federal lavv>, has been mired in 
procedural and jurisdictional complications since January, 
1972. The plan, however, makes this policy statement: 

it is hereby declared to be the policy that ambient 
air whose existing quality is better than the 
established standards, will be maintained at that 
high quality unless it has been affirmatively 
demonstrated to the Department of Health and 
Environmental Sciences of the State of Montana 
that a change is justifiable as a result of necessary 
economic and social development vital to the state 
(p. 6, Implementation Plan for Control of Air 
Pollution in Montana, Department of Health and 
Environmental Sciences, revised June 30, 1972). 

Two 1973 federal court decisions* have greatly influenced 
the Clean Air Act's impact on the use of land. The first case 
requires states to consider the cumulative atmospheric 
impact of development and in particular, to control major 
facilities which may be pollution-free themselves but will 
contribute to localized air pollution violations by attracting 
large number of motor vehicles. 

Because case-by-case review would be inadequate to 
control this long-term incremental air quality degradation, 
the EPA is requiring states to prepare plans for those areas 
which have the potential to exceed air quality standards in 
the next 10 years. The plans must consider impacts on air 
quality from a regional perspective and it is likely that 
portions of many of the plans will concern patterns of land 
use. The department has declared eight Air Quality 
Maintenance Areas in Montana and is beginning to prepare 
plans for them. Coordination with other state agencies and 
local governments apparently is informal so far. 



The second court case concerns EPA's position on the 
protection of areas where existing air quality exceeds 
minimum national standards. The U.S. Supreme Court 
affirmed a lower court's ruling that "significant 
deterioration" of air in these areas must be prevented. It has 
taken the EPA a year to propose regulations to comply with 
the high court's ruling. 

The EPA recognizes that preventing significant deteriora- 
tion of air quality is likely to have a major influence on land 
use. Land use planning is of necessity a complex process 
including many variables, only one of which isairquality. In 
the opinion of the EPA administration, regulation of land 
use based on air quality as the single overriding factor is not 
desirable for most areas of the country. The EPA has 
proposed regulations to "inject consideration of air quality 
into land use decisions, but not to mandate land use 
decisions based solely on air quality . . . not to restrict or 
prohibit economic growth, but rather to ensure that 
desirable growth is planned and managed in a manner 
which will minimize adverse impacts on the environment" 
(35). 

Recognizing that minimum air quality standards must be 
achieved throughout the nation, the question of what is 
"significant" deterioration of air quality becomes largely 
subjective. Varying social, economic, and environmental 
characteristics will result inevitably in varying definitions of 
"significant." 

Under proposed EPA regulations, the states would be 
delegated the responsibility to prevent the significant 
deterioration of air quality and could re-delegate this 
responsibility to local government. The EPA would 
encourage this re-delegation. For those states unwilling to 
accept the responsibility, the EPA would enforce the law. In 
any case, the EPA would retain some review authority. 

How Montana will respond to EPA's non-degradation rules 
is up to the executive branch; in particular, to the Board and 
Department of Health and the governor. Any decision by 
the state would have significant land use, social and 
economic effects. Is the Department of Health and Environ- 
mental Sciences the agency to consider, weigh and decide 
such far-reaching questions? What policies will its decisions 
follow? Firm answers cannot be offered now. 

Subdivisions 



Another area with significant land use implications is 
sanitation in subdivisions. The 1967 and 1973 legislatures 
have declared a clear policy: 

It is the public policy of this state to extend present 
laws controlling water supply, sewage disposal, and 
solid waste disposal to include individual wells 
affected by adjoining sewage disposal and 
individual sewage systems to protect the quality 
and potability of water for public water supplies 



•Nilural Resources Defense Council v. f P. A. 475 F.2d 968 (DC. Cir 1973) and Sierra Club 
V Rucke/shdUi. i44 f Supp 253 fO.DC. 1972). alld sub nomine Fri- Sierra Club. 412 US. 
541 (197J|. 



and domestic uses; and to protect the quality of 
water for other beneficial uses, including uses 
relating to agriculture, industry, recreation and 
wildlife (69-5001). 

Before a subdivision plat may be filed with a county clerk 
and recorder, the department and the local health officer 
having jurisdiction must certify that the subdivision lots are 
free of "sanitary restrictions." Until the restrictions are 
removed, the subdivider may not sell any lot, or erect any 
building or shelter requiring water supply, sewage or solid 
waste disposal facilities. If the restrictions are made 
conditional, then no permanent building requiring sanitary 
facilities may be occupied until the conditions are met. 

The department has rules, including sanitary standards, for 
the enforcement of the law. However, the department's 
interpretation of the broad policy and rules set forth by the 
legislature (Sec. 69-5005) has resulted in significant and 
unproductive conflict between the department and those 
concerned with the protection of the environment. Some 
contend that the department has neglected those sections 
of the policy and rules calling for the protection of water 
quality "for uses relating to agriculture, industry, recreation, 
and wildlife," and that the department appears concerned 
only with drinking water. As a result, the department has 
been taken to court twice in the last year. 

The policies of the body of law administered by the Board 
and Department of Health are clearly policies favoring 
strong environmental protection. The procedures required 
by the 1971 amendments to the water pollution control act, 
demanding affirmative proof to the board that a decrease in 
water quality is justifiable as a result of "necessary economic 
or social development," also are commendable. But the 
legislature has yet to determine what constitutes 
"justifiable" or "necessary" development. 

In addition, although mentioning wildlife in several policy 
statements, the legislature has failed, judged by the action of 
the department, to provide sufficient guidance for the 
inclusion of wildlife protection in administrative decisions 
of the department. 

With respect to overall state policy, the legislature has failed 
to provide for the coordination of the legal policies 
administered by the board and department with the policies 
of laws administered by other departments. 

THE DEPARTMENT OF HIGHWAYS 

During 1973 the Montana Department of Highways, acting 
under the policy direction of the Highway Commission, 
spent more than $80 million on highway construction 
projects. The commission and the department operate 
under an extremely broad legislative policy directive. The 
1965 legislature declared that it intended: 

(1) To place a high degree of trust in the hands of 
those officials whose duty it is, within the limits of 
available funds, to plan, develop, operate, 
maintain and protect the highway facilities of this 
state for future use. 



(3) That the state shall have integrated systems of 
highways, roads, and streets, and that the depart- 
ment of highways, the counties and municipalities 
assist and co-operate with each other to that end. 

(4) To provide sufficiently broad authority to 
enable the highway officials at all levels of govern- 
ment to function adequately and efficiently in all 
areas of their respective responsibilities, subject to 
the limitations of the constitution and the 
legislative mandate hereinafter imposed (32-2202). 

The location of highways, and the provisions of access to 
them, has a profound effect on the patterns of land use, the 
social structure, economy and environment of an area. The 
law expresses little recognition of these significant impacts 
of highway development. 

The legislature has recognized: the undesirable interaction 
of highways and livestock and so has provided for highway 
fencing, stock gates and stock passes (32-2426); the enjoy- 
ment derived from scenic surroundings while traveling and 
so has provided for the use of federal money to purchase 
scenic easements (32-2423), and the economic impact of 
highways and so has provided for the designation of 
economic growth centers (32-2620). Economic growth 
centers may be designated by the governor with the 
approval of the secretary of the U.S. Department of 
Transportation. Once designated, economic growth centers 
receive priority in appropriation of state matching funds for 
primary, secondary, and urban highways (32-2622). 

The highway department has also been granted authority to 
regulate certain land uses near highways. Junkyards within 
1000 feet of the right-of-way of interstate and primary roads 
require a license issued by the Department of Health and 
Environmental Sciences with the concurrence of the 
Department of Highways. The erection of outdoor 
advertising within 660 feet of the right-of-way is regulated 
by the Department of Highways under regulations adopted 
by the Highway Commission. 

The enormous indirect effects of highways on land use 
decisions go unmentioned in the codes. Not even the 
advertising unit of the highway department is guided by 
legislative policy. The unit evolved out of a legislative 
directive (32-1614), since repealed, directing the 
department to prepare an official highway map. 

Access 



The indirect effects of a highway are determined by its 
location and by the accesses provided. The legislature has 
declared that it is the policy to: 

facilitate the flow of traffic and promote public 
safety by controlling access to: 

(1) Highways included by the federal highway 
administration [roads] in the national system of 
interstate highways. 

(2) Throughways and intersections with through- 
ways. 



(3) Such other federal-aid and slate highways as 
shall be designated by the commission in 
accordance with the requirements set forth in this 
chapter (32-4301). 

Any portion of interstate highway may be designated for 
controlled access by resolution of the commission. The 
commission must find that it is "necessary and desirable that 
the rights of, or easements to access, light, air, or view be 
acquired by the state so as to prevent such portion [of the 
highway to be designated "controlled access"] from 
becoming unsafe for or impeded by unrestricted access of 
traffic from intersecting streets, alleys, public or private 
roads or ways of passage" (32-4303). Whereas, in the past, 
this authority has been exercised only in the case of inter- 
state highways, many primary road projects now are being 
designed for limited access. 

The policies of the department and commission, listed in the 
Montana Administrative Codes (MAC, 18-2.6AI(1)-S607), 
attempt to establish access standards "which will tend to 
reconcile and satisfy the needs and rights of both the 
property owner and the highway user." The department 
requires that a permit be requested from its Maintenance 
Division for any new access or for the reconstruction of 
existing access on any highway under the Federal Aid 
System (interstate, primary or secondary). 

The highway department has not taken it upon itself, nor has 
the legislature directed, that the land use effects of access be 
considered. Access decisions have been based solely on 
highway engineering and the interests of the "motoring 
public." 

Location 

Highway decisions probably always have been contro- 
versial. The Montana legislature has addressed this issue in 
very limited areas. For example. Sec. 32-1628 prohibits the 
department from constructing or relocating a highway so as 
to cause traffic to bypass an incorporated municipality 
unless the highway is part of the interstate system, or the 
governing body of the municipality consents. 

In response to an increasing public awareness that highways 
affect many values in addition to travel time and motorist 
convenience. Congress included in the Federal Aid FHigh- 
way Act of 1970 (23 U.S.C. 101 , e( seq. (1970)) stipulations that 
all impacts of federally assisted highway construction be 
considered in planning and design decisions. Congress 
directed the secretary of the U.S. Department of 
Transporation to: 

assure that possible adverse economic, social, and 
environmental effects relating to any proposed 
project on any Federal-aid system have been fully 
considered in developing such project, and that 
the final decisions on the project are made in the 
best overall public interest (23 U.S.C. 101, at Sec. 
109 (h)). 

This language also was intended to meet the environmental 
Impact statement requirements of the National Environ- 
mental Policy Act. 



The Montana highway department has prepared an Action 
Plan in response to the rules promulgated by the U.S. 
Department of Transportation. The Action Plan, in part, 
declares it to be the policy of the Department of FHighways 
that: 

. . . full consideration be given to economic, social 
and environmental factors in the planning and 
design of highway projects. 

. . . provisions for ensuring the consideration of 
economic, social and environmental factors be 
incorporated in the decision making process 
utilizing a systematic, interdisciplinary approach. 

. . . decisions on highway project planning and 
design be made in the best overall public interest, 
taking into consideration the need for fast, safe and 
efficient transportation, public services, and the 
costs of eliminating or minimizing possible adverse 
economic, social, and environmental effects (Sec. 
2.1, Montana Action Plan). 

The Action Plan helps identify social, economic, and 
environmental effects of a project. Specifically, the depart- 
ment must assess the impacts of alternative highway 
locations and designs and consider a number of factors, 
including regional and community growth, conservation 
and preservation, public facilities and services, and aesthetic 
and other values. 

Whether the plan embodies a policy, with respect to land 
use, consistent with that desired by the people of the state as 
expressed by their legislature, remains a question. Because 
the department is itself in a policy transition stage, 
independent analysis of what constitutes highway depart- 
ment land use policy is difficult. Historically, the depart- 
ment expressed disbelief that its actions could have any 
influence on land use and saw its mandate as simply highway 
construction. Recently, the department has realized that 
these notions are inconsistent with reality and with other 
policy declarations of the legislature. Yet in the absence of 
explicitly stated priorities and with access to large sums of 
federal money the department remains in a position of 
determining its own policy. 

There remain two significant considerations that to some 
extent subvert Action Plan policies. The routing of a 
secondary highway is determined pursuant to the Action 
Plan, but the decision on its beginning and end points is 
made primarily by the Board of County Commissioners 
requesting the highway. Secondly, although substantial 
portions of the interstate highway system remain to be 
constructed here, essentially all of Montana's interstates 
were planned and located before the /Action Plan was 
developed and do not reflect its policies. 

THE DEPARTMENT OF 
INTERGOVERNMENTAL RELATIONS 

In the authority exercised by the nine divisions of the 
Department of Intergovernmental Relations are both 
direct and indirect means of influencing the use of land. The 
legislature has directed the department to administer "laws 



pertaining to relationships between the state and local and 
federal governments" (82A-901.1) and the department was 
organized to provide liaison and services to local govern- 
ments. 

Most of the department's land use related functions that can 
be traced to a statutory base come from the Planning and 
Economic Development Act of 1967, which created a 
Department of Planning and Economic Development. In 
this act (as amended) the legislature declared: 

Community planning, greater diversification, and 
attraction of additional industry, accelerated 
development of natural resources, expansion of 
existing industry, creation of new uses for agri- 
cultural products ... are all necessary in order to 
create additional employment opportunities, 
increase personal income, and promote the 
general welfare of the people of this state (82-3702). 

Under the act the department was directed to adopt a 
comprehensive plan for the physical development of the 
state; prepare long range plans for economic and resource 
development; locate and maintain information on prime 
sites for industrial, agricultural, mineral, forestry, 
commercial, and residential development, and on sites of 
historical importance, and make recommendations for 
protecting and preserving those sites; and consult with, 
coordinate, and advise state agencies and local planning 
commissions with respect to land use, demographic and 
economic studies, and comprehensive plans (82-3705). 

When the Department of Intergovernmental Relations was 
created, the Department of Planning and Economic 
Development was made a division and then, through the 
Administrative Codes, split into three divisions: Planning, 
Economic Development and Research and Information. 

Aeronautics 

Of the divisions of the department, the Aeronautics Division 
exercises the most direct control over land use. With the 
policy guidance of the Board of Aeronautics, the division 
operates the 10 state-owned airports and assists in planning 
funding and designing airports owned by local govern- 
ments. The division also supervises the in-state use and 
disbursement of federal airport assistance funds. 

The legislature has given the division a single-purpose 
mandate to "encourage, foster, and assist in the develop- 
ment of aeronautics in this state and to encourage the 
establishment of airports and other air navigation facilities" 
(1-204). The codes do not suggest criteria for the establish- 
ment or abandonment of airports except to designate, 
expand, and modify a state airways system to best serve the 
interests of the state (1-204). 

The legislature has recognized the need to eliminate or 
prevent dangerous obstructions in the air space 
surrounding airports. Within Sees. 1-701 to 1-723 there are 
two statements by the legislature on airport hazards. 

Sec. 1-704 requires a permit to erect any structure or grow 



any natural thing within two miles of an airport and 
prohibits the issuance of a permit if the height of the 
structure or object would exceed the limits fixed by law. Sec. 
1-703 makes it the duty and authority of governing bodies 
controlling airports to enforce the provisions of the law, but 
the permit system has been ignored generally. 

Sec. 1-710 to 1-723, enacted by the 1947 legislature, 
authorize every local government having an airport within 
its jurisdiction or controlling an airport to adopt, administer 
and enforce airport zoning regulations for airport hazard 
areas. The legislature has declared that an airport hazard is 
one that "endangers the lives and property of users of the 
airport and of occupants of land in its vicinity, and also . . . 
[tends] to destory or impair the utility of the airport and the 
public investment therein" (1-711). 

A local government owning or controlling an airport 
affected by a hazard located outside its territorial limits may 
adopt joint airport zoning regulations with the local govern- 
ment in whose territory the airport or hazard is located. If 
that local government fails to cooperate in adequate airport 
zoning regulations, the affected local government may 
adopt and enforce regulations for the airport hazard area in 
question. If a conflict occurs among airport zoning 
regulations the local government owning orcontrollingthe 
airport shall prevail (1-712). If a conflict occurs between 
airport zoning regulations and other regulations governing 
the same area, the more stringent regulations shall prevail 
(1-713). 

Airport zoning regulations are adopted like any compre- 
hensive zoning regulation. The legislature has provided for 
permits and variances, an airport zoning commission, and a 
board of adjustment. 

Housing 

The Housing Division of the Department of Intergovern- 
mental Relations was created administratively and is 
"responsible for the delivery, conservation, planning, and 
promotion of housing, especially as applicable to persons of 
low and moderate income . . . [and] assists in the 
organization and development of local housing authorities, 
non-profit sponsors, and local, state, and federal housing 
planning groups" (MAC, 22-2.1-0100. page 22-5). 

The division is attempting to develop a program for 
financing the construction of low and moderate-income 
housing. Such a program could have significant effects on 
land use decisions but the legislature has offered no policy 
guidance to the division. 

Economic Development 

The Economic Development Division has assumed the 
mandate of the policy statement of the Planning and 
Economic Development Act of 1967 (quoted above). The 
division identifies opportunities for industrial, manu- 
facturing, recreational and agri-business potentials within 
the state and encourages developers to pursue these oppor- 
tunities. The division also provides technical assistance to 
local governments and organizations on development 
programs. 



The legislature has offered this division no guidance on the 
development desired in the state or on the aspects, other 
than economic, which should be considered in promoting 
development. 

Planning 

The Planning Division has assumed the non-economic 
planning functions outlined in the Planning and Economic 
Development Act of 1967. Because the policy of that act 
pertains almost exclusively to economic development 
planning, the division essentially functions without legis- 
lative policy guidance. The act does direct the development 
and adoption of a comprehensive plan for the state, but 
provides no guidelines or purpose for the plan. Similarly 
there are no statutory guidelines for intra-departmental 
cooperation or inter-departmental coordination of 
functional planning. 

The division has emphasized local planning assistance but is 
now moving to fill a larger role. The division administers the 
U.S. Department of Housing and Urban Development's 
"701" planning grants and offers assistance to local govern- 
ments in the establishment of planning boards. A significant 
new mandate given the division by the 1973 legislature is the 
adminstration of the Montana Subdivision and Platting Act. 
In the act the legislature expresses clear purpose with regard 
to the regulation of subdivision: 

It is the purpose of this act to promote the public 
health, safety and general welfare by regulating the 
subdivision of land; to prevent overcrowding of 
land; to lessen congestion in the streets and high- 
ways; to provide for adequate light, air, water 
supply, sewage disposal, parks and recreation 
areas, ingress and egress, and other public require- 
ments; [and] to encourage development in 
harmony with the natural environment (11-3860). 

The act directs the division to prepare minimum sub- 
division regulations including detailed criteria for environ- 
mental assessments to be submitted by all subdividers. The 
environmental assessment must include a discussion of the 
natural characteristics, such as hydrology, soils, vegetation, 
topography and wildlife, of the area to be subdivided. It 
must report the anticipated effects of the subdivision on 
local services. Local services to be considered include 
schools, roads and road maintenance, water supply, sewage 
and solid waste disposal facilities, fire and police protection 
(11-3863). 

The governing body of every county, city and town is 
directed to provide for the enforcement and administration 
of subdivision regulations "which meet or exceed the 
prescribed minimum requirements" by July 1, 1974, or the 
Planning Division must promulgate regulations to be 
enforced by the governing body as of January 1, 1975 (11- 
3863). 



transmitted to the local government having jurisdiction 
over the subdivision. 

The local government must hold a public hearing and 
decide to deny, approve or conditionally approve a sub- 
division within 60 days of receiving the preliminary map 
unless the developer agrees to an extension. The legisla- 
ture has directed the local governing body to review the 
subdivision "to determine whether it conforms to the local 
master plan if one has been adopted ... to the provisions of 
this act [the Montana Subdivision and Platting Act], and to 
rules and regulations prescribed or adopted pursuant to this 
act" (11-3866). The legislature has neither prescribed the 
procedure for review nor limited review to these three 
items, nor prescribed the concern to be given to each. In 
fact, there is no provision to insure that the three items are 
even considered. 

Provisions of the act implement a policy of granting local 
governing bodies that accept their responsibilities greater 
latitude in their actions. The act provides that governing 
bodies taking a strong and active role in the regulation of 
subdivisions may exercise flexibility with regard to the 
requirements for an environmental assessment and the 
dedication of parkland. 

The Planning Division also is involved in the promotion of 
district councils. The state was divided into 12 districts by the 
former Department of Planning and Economic Develop- 
ment in response to suggestions of federal agencies. The 
1967 legislature provided for cooperative organizations 
among local governments with the Interlocal Cooperation 
Act (16-4901 to 16-4904). District boundaries were quite rigid 
but now may be changed upon petition by a local govern- 
ment. 

District councils are not intended to be another layer of 
government. They are not responsible for the delivery of 
services nor do they exercise taxing authority. They are 
voluntary organizations concerned with policy planning, 
program development and coordination. A majority of the 
voting members of a certified council must be executive 
officers of local governments within the district and must 
represent at least 75 percent of the district's population. 

Once a district council is certified applications for certain 
federal moneys from governmental organizations within 
the district and all state agency plans for facilities and work 
programs which affect the district must be submitted to the 
council for review and comment. A council may attempt to 
resolve conflicts between proposals and the district's 
adopted comprehensive plan. 



THE DEPARTMENT 

OF NATURAL RESOURCES 

AND CONSERVATION 



The division also must offer a process for the review of 
preliminary subdivision plats by state and local government 
agencies and affected public utilities. The comments and 
recommendations generated by the review process are 



The Board and the Department of Natural Resources and 
Conservation are charged with administering a large body 
of law, much of which directly and indirectly affects the use 
of land. Included within the scope of the department are oil. 



gas, water and forest resources, soil and grass conservation, 
and the review of energy conversion and transportation 
facilities. 

The Board of Oil and Gas Conservation is attached to the 
Department of Natural Resources and Conservation for 
administrative purposes only; it has retained almost 
complete independence. The board regulates all facets of 
the drilling, production and plugging of oil, gas and 
associated wells. Its only direct charge with regard to land 
use is to cooperate with the Department of Natural 
Resources and Conservation in locating the owners of 
abandoned wells, sumps and seismographic shot holes 
which have not been reclaimed in compliance with the 
board's regulations. Perhaps the essential legislative policy 
regarding the Board of Oil and Gas Conservation can be 
inferred from its retention of independence throughout 
executive reorganization. 

The Division of Forestry directly controls almost 490,000 
acres of state-owned timber lands. With regard to these 
lands the division is under the jurisdiction of the Board of 
Land Commissioners and the Department of State Lands. 
The policies guiding the division are considered under the 
discussion of the Department of State Lands. 

The division also is involved in a number of programs 
related to private lands, reduction of fire hazards, 
cooperation in forest management, and watershed 
protection. Fire protection on private lands is financed by 
private land owners through a forest fire protection tax 
assessment established by the legislature (28-109). 

Soil and Grass 



The soil and grass conservation programs and the range- 
land resource program coordinated and administered by 
the Department of Natural Resources have substantial 
impacts on the use of the land for agricultural purposes. The 
conservation district program, in particular, includes the 
potential for very significant impacts on land use outside of 
incorporated cities and towns. 

The legislature has declared firm policiesand purposes with 
respect to the conservation of soil and grass resources of the 
state. The State Conservation Districts Law, enacted in 1939 
and amended in 1959, declares that it is state policy to: 

provide for the conservation of soil and soil 
resources of this state, and for the control and 
prevention of soil erosion, and for the prevention 
of floodwater and sediment damages, and for 
furthering the conservation, development, 
utilization, and disposal of water, and thereby to 
preserve natural resources, control floods, prevent 
impairment of dams and reservoirs, preserve 
wildlife, protect the tax base, protect public lands 
and protect and promote the health, safety, and 
general welfare of the people of this state (76-102). 

Grass conservation districts may own land, purchase and 
market livestock and equipment and supplies needed by 
the livestock industry, and manage and control the use of 



district rangeland. Grazing rights are distributed to 
members and limited by the carrying capacity of the range. 
However, the legislature has directed that "a sufficient 
carrying capacity of range shall be reserved for the 
maintenance of a reasonable number of wild game animals, 
to use the range in common with livestock grazing in the 
district" (46-2332). 

The department also promotes and supports the Montana 
Rangeland Resource Program. The basic objectives of this 
program are articulated in a 10-year goal statement and 
include improved range, increased stockwater availability, 
increased recreational use and enhanced wildlife habitat. 

Conservation districts are political subdivisions of the state 
governed by a board of conservation district supervisors. 
The legislature has stipulated in great detail the factors to be 
considered in the establishment of a district. Provision is 
made for attempting to consider the interest of all who 
might be included. Districts including one or more 
incorporated municipalities have two supervisors 
appointed by the governing bodies of the municipalities, 
the other supervisors (either five or seven) are elected 
within the district. Similarly, Sec. 11-3810 requires that 
county planning boards include at least one member of a 
board of conservation district supervisors in those counties 
where there are conservation districts. 

The legislature has granted the districts extensive powers to 
study and regulate the use of land. Districts may prepare 
comprehensive plans for the conservation of soil and water, 
for flood protection, and for the development and disposal 
of water in the district. To carry out these plans, district 
supervisors have authority to prepare and adopt regulations 
which may mandate needed engineering operations, 
specify methods of cultivation and grazing, require retire- 
ment from cultivation of areas highly susceptible to erosion 
or areas where erosion cannot be adequately controlled if 
cultivation is carried on, and other provisions necessary to 
conserve soil and prevent erosion. In addition, supervisors 
may classify and regulate land within the district according 
to its agricultural characteristics (76-109). 

Land use regulations proposed by the supervisors must be 
approved by the majority of electors within the district 
before they can be adopted. After adoption, the super- 
visors must provide for a board of adjustment to hear 
appeals rising from practical difficulties and hardships 
resulting from the regulations. The regulations may be 
enforced through the courts. 

No conservation district has adopted land use regulations. 
However, because the relationship between county 
regulations and district regulations has not been clarified by 
the legislature, if the two sets of regulations were to disagree 
conflicts would have to be decided in court. 

In addition to the stated policy, the State Conservation 
Districts Law (cited above) includes an implicit policy of 
voluntary compliance. The legislature apparently 
concluded that the right of a person to misuse the land is 
superior to the public's right to prevent that misuse. Erosion 
is no longer the threat to the state's farm and grazing lands it 



once was. But blowing soil remains the state's chief air 
pollutant and sediment is the state's chief water pollutant. 
Soil that is blown or washed away is lost forever. The under- 
lying conflict of rights, therefore, is substantial. 

Water 



Land use. like life itself, is intimately linked to the avail- 
ability of water. However, the subject of water is complex. 
The legislature has addressed the subject of water in many 
different laws, but the policy declarations of the legislature 
have remained similar. The Montana Water Resources Act, 
as amended in 1974, declares, in part: 

1) The general welfare of the people of Montana, 
in view of the stale's population growth and expanding 
economy, requires that water resources of the state be 
put to optimum beneficial use and not wasted. 

2) The public policy of the state is to promote the 
conservation, development and beneficial use of the 
state's water resources to secure maximum economic 
and social prosperity for its citizens. 

5) The water resources of the state must be 
protected and conserved to assure adequate supplies 
for public recreational purposes and for the 
conservation of wildlife and aquatic life. 

8) The greatest economic benefit to the people of 
Montana can be secured only by the sound co- 
ordination of development and utilization of water 
resources with the development and utilization of all 
other resources of the state (89-101.2). 

The policy statement of the Montana Water Use Act, 
enacted in 1973, concurs: 

It is the policy of this state and a purpose of this act 
to encourage the wise use of the state's water 
resources by making them available for 
appropriation consistent with this act, and to 
provide for the wise utilization, development, and 
conservation of the waters of the state for the 
maximum benefit of its people with the least 
possible degradation of the natural aquatic eco- 
systems (89-866 (3) ). 



Districts are authorized to exercise broad powers relating to 
the use and distribution of the water controlled by the 
district (89-3401 to 89-3449). 

The Department of Natural Resources and Conservation has 
been directed by the legislature through the Water 
Resources Act to prepare a comprehensive state water plan 
for the approval and adoption of the Board of Natural 
Resources and Conservation. The plan is to be based on the 
multiple-use concept and is to "set out a progressive 
program for the conservation, development and utilization 
of the state's wafer resources, [and] propose the most 
effective means by which these water resources may be 
applied for the benefit of the people, with due 
consideration of alternative uses and combinations of uses" 
(89-132.1). A draft of the first segment of this plan, done for 
the Flathead River Basin, will be available for public review 
and comment early in 1975. 

Public hearings are required during adoption of the plan. As 
the plan is completed sections are to be submitted to the 
legislature, but the legislature has not established the legal 
significance of the plan except to tie it to the general 
objectives of the Water Resources Act and to "protect the 
waters of Montana from diversion to other areas of the 
nation" (89-101.2). 

The legislature also has charged the department with 
administering the law designating controlled groundwater 
areas and the regulation of withdrawals from them. The 
legislature recognized that in areas where groundwater 
withdrawals could be exceeding recharge, strong 
regulation is required. The Board of Natural Resources and 
Conservation is required to hold hearings, prepare written 
findings and issue an order which may set an annual 
withdrawal limit for an area. Allocation of the allowed 
withdrawal must abide by pertinent water rights. The same 
law charges the department with preventing the wasting of 
groundwaters, defined as applying groundwater to other 
than a beneficial use (89-2911 to 89-2936). 

The 1972 Montana Constitution also addresses the topic of 
water. In response to Article IX, Sec. 3 of the Constitution, 
the 1973 legislature declared (through the Water Use Act) 
that any use of water is a public use, that all water in the state 
is state property for the use of its people, and that water may 
be appropriated and used only for beneficial uses. Sec. 89- 
867 defines "beneficial use" as: 



The legislature has provided organizational and administra- 
tive frameworks for the management of the water resource 
of the state and for the resolution of conflicts surrounding 
that resource. The statutes provide for irrigation districts, 
drainage districts, flood control and water conservation 
projects by counties, municipalities, and conservancy 
districts, and they implement a policy of developing the 
water resource. All such programs indirectly affect land use. 

For example, conservancy districts may be established and 
incorporated for numerous purposes, including flood and 
erosion prevention and control; land drainage: promoting 
recreation; conserving water and related lands, forests, fish 
and wildlife; and agricultural, industrial and municipal uses. 



a use of water for the benefit of the appropriator, 
other persons, or the public, including, but not 
limited to, agriculture (including stock water), 
domestic, fish and wildlife, industrial, irrigation, 
mining, municipal power, and recreational uses; 
provided, however, that a use of water for slurry to 
export coal from Montana is not a beneficial use. 

The legislature has directed the department to establish a 
centralized record system of existing rights and begin a 
process of ad judication, under the supervision of the district 
court, to determine those rights exactly. The legislaturealso 
has sustained the policy that between appropriators, "the 
first in time is the first in right" (89-891 and 89-896). 



Significantly, and perhaps in recognition of its stated 
policies with regard to wildlife and aquatic ecosystems, the 
legislature directed that the Department of Fish and Game 
may represent the public to establish any existing public 
water rights for recreational use under the act. However, the 
legislature specifically declared that it was not making a 
legislative determination of whether recreational uses 
established prior to the effective date of the law (July 1, 1973) 
are beneficial uses (89-872). 

From the date of the Water Use Act became effective all 
water appropriations and changes in purpose or place of use 
require a permit from the department, except in the case of 
a well outside a controlled groundwater area with a 
maximum yield of less than 100 gallons per minute. The 
legislature has declared that a permit must be issued if: 

(1) there are unappropriated waters in the source 
of supply; 

(2) the rights of a prior appropriator will not be 
adversely affected; 

(3) the proposed means of diversion or 
construction are adequate; 

(4) the proposed use of water is a beneficial use; 

(5) the proposed use will not interfere 
unreasonably with other planned uses or 
development for which a permit has been 
issued or for which water has been reserved 
(89-885). 



Clearly the act establishes a rational process for 
appropriation and "wise utilization, development, and 
conservation" of water. However, the last part of the act's 
policy statement, that water should be appropriated with 
the "least possible degradation of the natural aquatic eco- 
systems," appears to have been forgotten in the procedures 
formulated for reviewing permit applications. 

Regulating water use and appropriation indirectly 
influences the use of land; in addition, the 1971 legislature 
charged the department with directly regulating the use of 
lands in the floodplains of rivers. The legislature has 
recognized "the right and need of watercourses to 
periodically carry more than the normal flow of water" and 
has provided the department with the necessary authority 
to carry out a comprehensive floodway management 
program for the state (89-3502). 

The department has been directed to delineate the 100-year 
floodplain on all streams and rivers in Montana. (The 100- 
year floodplain is that area likely to be flooded on the 
avreage of once every 100 years. In other words, the 100- 
year floodplain has a 1 percent chance of being flooded in 
any given year.) The local government having jurisdiction 
and the affected people must be afforded opportunities for 
input to the floodplain delineation process. 

Local governments having jurisdiction over designated 
floodplains have six months from the state's notification of 
floodplain designation to adopt land use regulations for the 
area designated. The regulations must at least meet the 



minimum floodplain regulations adopted by the Board of 
Natural Resources and Conservation. If a local government 
fails to comply, or adopts regulations failing to meet the 
minimum standards, the department must enforce the 
minimum standards within the designated floodplain (89- 
3504). 

The legislature has prohibited certain land uses in the flood- 
plain and allowed others. Some uses require a permit. 
Permits are issued by the local government having juris- 
diction over the floodplain if the local government has 
adopted adequate regulations; otherwise permits are issued 
by the department. The department retains the right to 
suspend the permit power of a local government if it fails to 
enforce its own regulations. Sec. 89-3507 outlines criteria for 
the review of permits and emphasizes that danger to life and 
property is the primary consideration. 

As declared in the policy and purposes of the act, the 
legislature has attempted to "balance the greatest public 
good with the least private injury" (89-3502). To this end the 
legislature has defined a two-zone floodplain with more 
stringent regulations required for an inner area or floodway, 
where the danger is greatest, and less stringent regulations 
required for the outer floodplain. 

The legislature, through the Montana Utility Siting Act of 
1973, charged the department with direct regulation of a 
very broadly defined land use: energy generating and 
conversion plants and their associated facilities. Included 
are transmission lines, dams, aqueducts, transportation links 
and certain pipelines. The legislature paraphrased the 
environmental declaration of Article IX, Sec. 1 of the 1972 
Montana Constitution and further decreed that "no power 
or energy conversion facility shall hereafter be constructed 
or operated within this state without a certificate of environ- 
mental compatibility and public need" issued by the Board 
of Natural Resources and Conservation (70-802). 

The legislature has emphasized theall-encompassing intent 
of this section by the scope of the act's definition section 
(70-803) and the long list of information required in the 
evaluation of an application for a public need certificate. 
The act orders other state agencies to cooperate with the 
Department of Natural Resources and Conservation to 
compile information on the impact of the proposed facility 
(70-807). 

The legislature has declared that the board must issue 
decisions in writing accompanied by complete findings 
including: the basis of the need for the facility; assurances 
that the facility will have the minimum adverse environ- 
mental impact given available technology and economic 
realities; that the facility will not violate state and federal air 
and water quality standards; and that the facility conforms 
to applicable state and local laws except when the board 
finds local laws excessively restrictive in view of existing 
technology, economics, or the needs of consumers (70-810). 

A policy of maximizing the opportunity for public involve- 
ment in the certification process can bo inferred from the 
list of groups made parties to the certification proceedings 
and granted the right to seek judicial review of decisions of 
the board. Parties to the proceedings include the applicant. 



—28— 



the department, local governments affected or potentially 
affected by the board's decision, and any interested person 
or group of persons (70-808). 

In addition, all utilities are required to maintain an annual 
plan covering projected demand and construction for the 
following 10 years. This plan is to be filed with several state 
agencies and is publicly available (70-814). 

Precedents 

In the body of law administered by the Board and Depart- 
ment of Natural Resources and Conservation, the legis- 
lature has established two significant precedents. The 
floodway management and regulation act (89-3501 to 89- 
3515) establishes that there are areas of the state where there 
exists, due to the characteristics of the area, an overriding 
state interest in the regulation of the use of land. The Utility 
Siting Act (70-801 to 70-823) establishes that there exist types 
of development, that is, land uses, with such widespread 
effects that they cannot be reasonably regulated by local 
government. 



THE DEPARTMENT OF STATE LANDS 

Approximately 5.25 million acres of state-owned land (just 
over 5 percent of the state) are under the direct control of 
the state Board of Land Commissioners. In addition, the 
commissioners exercise permit power over certain land uses 
on all non-Indian trust lands within the state. 

State-owned lands were granted to Montana by the federal 
enabling act of 1889 which provided for Montana's state- 
hood (25 U.S. Statutes at Large 676, as amended). Sections 16 
and 36 in every township across the state were given to the 
state for the support of common schools and additional 
lands were given for the support of other educational 
institutions. Where these sections or any part of them were 
no longer available to the federal government for granting 
to the state, the state was allowed to select comparable land 
from the public domain. 

The enabling act also directed the state to establish 
permanent funds from the proceeds of the sale of timber, oil 
and other minerals found within the granted lands, and 
from the sale of the lands themselves. The interest from 
these funds and rentals received from land leases, interest 
payments on land sold, and all other actual income is made 
available for the maintenance and support of school systems 
throughout the state. 

The Board of Land Commissioners was created by the 1899 
Constitution and was recreated by Article X, Sec. 4 of the 
1972 Constitution. The board consists of the governor, the 
superintendent of public instruction, the state auditor, the 
secretary of state and the attorney general. The Depart- 
ment of State Lands acts under the direction of the board, 
administers the laws charged to the board, and manages 
most state-owned land. However, state forest lands are 
managed cooperatively by the Department of Natural 
Resources and Conservation and the board. 



The 1927 legislature declared for the board and department 
what is now becoming a somewhat troublesome mandate: 

the guiding rule and principle (of the Board] is that 
these lands and funds are held in trust for the 
support of education, and for the attainment of 
other worthy objects helpful to the well-being of 
the people of this state; and the board shall 
administer this trust to secure the largest measure 
of legitimate and reasonable advantage to the state 
(81-103). 

To this basic policy mandate the 1969 legislature added the 
direction to manage the lands under the multiple-use 
management concept, a concept defined briefly as 
harmonious and coordinated use of the various resources of 
the land without impairment of the land's productivity and 
with "consideration being given to the relative values of the 
various resources" (81-103). 

The 1967 legislature enacted a law declaring as state policy 
that: 

It is in the best interest and to the great advantage 
of the state of Montana to seek the highest 
development of state-owned lands in order that 
they might be placed to their highest and best use 
and thereby derive greater revenue for the support 
of the common schools, the university system and 
other institutions benefiting therefrom and that in 
so doing the economy of the local community ... is 
benefited (81-2401). 

This act allows up to 2.5 percent of specified income from 
state-owned lands to be used to develop or conserve state 
land resources including surface and underground water 
(81-2401 to 81-2408). 

Most of the state's land (about four-fifths) is leased for 
grazing or agricultural use. The policy that can be Inferred 
from the laws regulating leasing for agricultural use is one of 
maintaining the long-term productivity of the land and a 
long-term return to the school trust funds. Leases may be 
cancelled for mismanagement: overgrazing, allowing 
excessive wind or soil erosion, permitting an abundance of 
noxious weeds, or inefficiently using the productive 
capability of the land (81-422). The legislature has also 
expressed a concern for the rights of the leaseholder and 
provided a process to compensate him or her for improve- 
ments made to the land if the lease changes hands (81-421). 

State lands also may be leased for other uses, primarily the 
extraction of oil and gas, and the mining of coal, metals, and 
non-metaliferous minerals. 

Coal leases may be issued on lands under lease for grazing 
or agriculture or on lands which have been sold but in which 
coal rights have been reserved by the state. In either case the 
board is directed to exercise care to protect the rights of the 
lessee or purchaser (81-501). (However, this "care" has 
tended to be interpreted as compensation for damages.) In 
addition, the legislature has directed that coal mining on 
state lands must not be wasteful or make future mining 
operations more difficult or expensive (81-501). 



The law provides that leases for the mining of metaliferous 
minerals or gems, for the mining of non-metaliferous 
minerals and for the extraction of oil or gas must provide for 
protection of the rights of any affected agricultural or 
grazing lessee (81-608,81-703,81-1701). However, the legis- 
lature has resolved explicitly only conflicts among those 
wishing to mine metaliferous minerals or gems and those 
wishing to extract coal, oil or gas. Where coal, oil, or gas 
leases are in effect, permission of the coal, oil or gas lessee is 
required before a mineral lease can be issued on the same 
land (81-610). No legislative guidelines have been provided 
to resolve conflicts when agricultural or grazing leases come 
into direct conflict with coal, gas, oil, or mineral leases. 

The legislature has expressed a policy of conservation with 
regard to oil and gas leases on state lands. Although Sec. 81- 
1711 does not directly mandate so-called unit operation, it is 
strongly encouraged to insure that the maximum quantity of 
oil or gas is extracted from each reservoir. 

Land likely to contain valuable deposits of coal, oil, oil shale, 
phosphate, metals, sodium or other valuable minerals is not 
subject to sale (81-901). This furthers the policy of insuring 
best possible return to the state; the worth of a mineral 
deposit is not likely to be known fully until after its 
extraction. Also to further the policy of maintaining a long- 
term return to the school trust fund, the legislature has 
prohibited the sale of timberland (81-901) and has 
authorized measures to achieve sustained production on 
state lands. 

Interestingly, the legislature has declared it to be depart- 
ment policy to: 

As far as possible to determine the lands shall be 
sold only to actual settlers or to persons who will 
improve the same, and not to persons who are 
likely to hold such lands for speculative purposes 
intending to resell the same at a higher price 
without having added anything to their value 
(81-908). 

In addition, the Montana Natural Areas Act of 1974 provides 
for the protection of areas with "significant scenic, educa- 
tional, scientific, biological, and/or geological values," and 
which appear to have been affected primarily by natural 
forces (81-2702). These "natural areas" may be designated 
on state-owned land by the Board of Land Commissioners 
or by the legislature. The board may acquire qualifying 
private land as a natural area by any legal means, but may 
exercise the power of eminent domain only in specific 
instances authorized by the legislature (81-2707). 



legislature has charged the Board of Land Commissioners 
with the implementation of state policy in this area. 

There are four laws which state, in varying forms, the state's 
policy with regard to mining and reclamation: The Strip 
Mine Siting Act (1974); The Montana Strip Mining and 
Reclamation Act (1973); Open Cut Mining Act (1973); and 
the 1971 act providing for the reclamation of mining lands, 
usually referred to as the hard rock mining act. 

Perhaps the onepolicy statement which best condenses and 
expresses in simple terms the thrust of all four is that of the 
Open Cut Mining Act: 

It is the policy of this state to provide for the 
reclamation and conservation of land subjected 
to . . . mining. Therefore, it is the purpose of this act 
to preserve natural resources, to aid in the 
protection of wildlife and aquatic resources, to 
safeguard and reclaim through effective means 
and methods all agricultural, recreational, home 
and industrial sites subject to or which may be 
affected by . . . mining to protect and perpetuate 
the taxable value of property, to protect scenic, 
scientific, historic or other unique areas, and to 
promote the health, safety, and general welfare of 
the people of this state (50-1502). 

To this, the 1973 legislature added, through the Strip Mined 
Coal Conservation Act, a policy prohibiting the waste of 
strip mined coal: "it is declared to be the public policy in 
providing for the orderly development of coal resources 
through strip mining to assure the wise use and to prevent 
the waste of coal" (50-1402). 

The Montana Strip Mining and Reclamation Act (50-1034 to 
50-1057) has been touted as the nation's most stringent and 
comprehensive law regulating mining and reclamation. Any 
person removing or intending to remove by strip mining 
more than 10,000 cubic yards of coal, uranium and/or over- 
burden must obtain a permit from the Department of State 
Lands. Permits are issued for a period of one year and must 
be renewed annually. An application for a permit must 
include a plan for the mining operation and for the 
reclamation, revegetation, and rehabilitation of the land 
and water affected by the mine. The law requires a detailed 
pre-mining inventory of the natural and man-made 
characteristics of the mining area including vegetation, 
wildlife, soils, overburden, surface and ground water 
hydrology, ownership patterns, location of all water, oil, and 
gas wells, roads and utility lines. During the operation of the 
mine continued water quality, soil and overburden 
sampling is required. 



Reclamation 

The Montana Constitution directs the legislature to provide 
effective requirements and standards for the reclamation of 
lands disturbed by the removal of natural resources: "All 
lands disturbed by the taking of natural resources shall be 
reclaimed. The legislature shall provide effective 
requirements and standards for the reclamation of lands 
disturbed" (Article IX, Sec. 2, Montana Constitution). The 



Area strip mining, a method of operation which does not 
produce a bench orfill bench, is required. Furthermore, the 
mined area must be restored to approximately its original 
contours and topsoil must be conserved. To insure that the 
provisions of the permit are carried out, a bond must be 
filed with the department for an amount determined by the 
board based on the characteristics of the area to be mined. 
The bond may be neither less than $200 nor more than 
$2,500 for each acre or portion of an acre to be mined, 
provided that the bond equals the estimated amount that 



would be required for the state to complete the work 
described in the reclamation plan. Return of the bond is 
contingent on the mine operator's faithful performance in 
meeting the act's requirements. In no case can a bond be 
released sooner than five years after revegetation. 

In addition to forfeiture of bonds, the department may 
enforce the law through the suspension of existing permits 
and, in the case of a mine operator who has more than one 
permit, the denial of permission to mine lands under the 
other permits. Civil and criminal penalties are provided for 
in the act, and the right to seek mandamus in district court to 
compel state officials to perform their duty under the act is 
granted to all residents of the state. The act regulates 
prospecting in much the same manner. 

The Strip Mine Siting Act (50-1601 to 50-1617) also applies to 
coal and uranium mining but extends the review of the 
department to mine location and site preparation. Site 
preparation includes the construction of roads, railroad 
spurs, transmission lines, draglines, and train load-out 
facilities. The authority granted under the act prevents a 
situation in which a mine operator would spend a largesum 
of money on site preparation and then go to the depart- 
ment for a strip mining permit. Obviously, it would be 
extremely difficult for the board objectively to consider a 
permit application after a firm invested millions of dollars in 
site preparation. 

The Open Cut Mining Act (50-1501 to 50-1516) applies to any 
mine operator intending to remove by surface mining 
10,000 or more cubic yards of bentonite, clay, scoria, 
phosphate rock, sand or gravel. The act contains provisions 
and stipulations similar to those of the Strip Mining and 
Reclamation Act including the requirement that bond of 
$200 to $1000 per acre be filed with the department. Instead 
of a permit system, the law requires mine operators to enter 
into a contract with the state providing for the reclamation 
of mined land. The contract may be enforced by the depart- 
ment through forfeiture of bond and criminal penalties. 

The hard rock mining act (50-1201 to 50-1226) applies to the 
mining of all minerals not covered by the Strip Mining and 
Reclamation Act and the Open Cut Mining Act. Permits are 
required from the department for exploration, develop- 
ment, and mining if the proposed operation will remove at 
least 100 tons, in the aggregate, in any 24-hour period. 
Miners removing less than 100 tons a day must submit a 
mining plan and obtain a "small miners exclusion" state- 
ment from the department. Hard rock mining act 
regulations are based on potential uses of the land: 
difficulties of grading and revegetation; procedures needed 
to control drainage and stream pollution; and the 
protection of human life, and property, wildlife and 
vegetation. The law requires that a bond be filed with the 
department for not less than $200 nor more than $2500 per 
acre or fraction of acre mined. However, the total bond 
must be sufficient to cover the estimated costs to the state of 
completing the reclamation of the mined lands. In addition 
to forfeiture of bond, the act provides for civil penalties for 
violation of the provisions of the act. 

The Board of Land Commissioners was assured of eventual 
policy contradictions by the laws establishing the trust lands 



and creating the basic management concepts for them. 
Inevitably, interests groups promote differing uses for 
public lands; the legislature has brought the situation to a 
head by assigning additional duties to the department and 
board without resolving long standing questions surround- 
ing the use of state-owned lands. 

Generally, past commissioners have interpreted the law to 
mean that the school trusts must be compensated for each 
use of trust lands, and that uses offering the greatest long- 
term compensation are preferred. It has been argued, on 
the other hand, that the legislature has declared that trust 
lands are not solely for the support of education and may be 
used for "other worthy objects helpful to the well-being of 
the people of this state" (81-103). The legislature may have 
exceeded its authority by including "other worthy objects" 
in its directions to the board. The federal act granting the 
trust lands to Montana mentions only the support of 
common schools (25 U.S. Statutes At Large 676, as 
amended). In any event, the application of the law has not 
always been consistent. 

It is often argued that state lands are not now leased to bring 
the highest return to the state. The 1973-74 fiscal year 
income from the leasing of state land was approximately 
$13.5 million. Averaged over the approximately 5 million 
acres of state lands, the total reduces to about $2.75 per acre. 
Significantly contributing to this low per-acre income are 
the relatively low grazing rentals established by the legis- 
lature (81-433). (36) 

State forest lands now are open to the public for recreation 
(grazing and agricultural lands are not) without additional 
compensation to the trust; such activity tends to lessen the 
value of the land for simultaneous grazing leases. 

Access for public recreation is, in fact, one of the big issues 
surrounding the leasing of state land for grazing and other 
agricultural purposes. There is a clear policy conflict in this 
area that is resolved currently by administrative discretion. 

Other areas of conflict include the policies indicated in the 
Montana Natural Areas Act of 1974 (81-2701 to 81-2713); the 
State Antiquities Act (81-2501 to 81-2514); and the classifi- 
cation and reclassification of state lands directed by House 
Bill 22, enacted by the 1974 session (81-302). Which takes 
precedence, the enabling act, the general mandate to the 
board, or subsequent legislation? The legislature has not 
spoken to this issue. 

When reviewing applications for prospecting or mining 
permits, statutory considerations of the board are limited to 
the feasibility of and procedures for reclamation (50-1208). 
Strip mine permits are reviewed on a broader basis which 
includes consideration of "special, exceptional, critical, or 
unique characteristics" of the land to be mined, and to some 
extent, of adjacent lands (50-1042). However the social, 
environmental and economic impacts on the greater 
surrounding area, the county, the region, and the state, for 
that matter, need not be considered. The laws do allow for 
hearings, but currently there are no required procedures 
except those of the Montana Administrative Procedure Act. 
There is no mechanism to obtain input from the local 
people or their governments or from citizens generally. 



except through environmental impact statement review 
process. 

When reviewing applications for strip mining coal on state- 
owned lands, the board finds itself in a particularly conflict- 
ing position. Sec. 9 of the Strip Mining and Reclamation Act 
(50-1042) directs the board to deny a permit if the land to be 
mined possesses "special, exceptional, critical, or unique 
characteristics." Yet to comply would violate the legis- 
lature's declaration that state lands be managed for 
maximum long-term return to the school trust fund. The 
board might argue that to mine the land now, reclaim and 
return it to grazing or agriculture would produce the 
maximum long-term proceeds. However, this argument 
does not avoid violating the directions of Sec. 9. The 
situation is made even more untenable by the board having 
invoked Sec. 9 to deny permits for strip mining on private 
lands. 



A deceivingly simple solution to this dilemma would be the 
transfer of the administration of mining laws to another state 
department. But the legislature still would need to state 
which policies, those of the general mandate given the 
board, or those regarding mining, should take precedence 
on state land. The declaration in the Montana Constitution 
regarding reclamation might be useful in resolving this 
conflict. 



THE DEPARTMENT OF REVENUE 

With few exceptions, the legislature has not acknowledged 
the relationship between taxation and the use of land, let 
alone set conscious policies in this area. The basis of the 
property tax structure in Montana has been set in a clear 
legislative directive: "All taxable property must be assessed 
at its full cash value except the assessment of agricultural 
lands shall be based upon the productive capacity of the 
lands when valued for agricultural purposes" (84-401). 
However, the directive has not been implemented as stated. 
The assessment of land and land improvements in general 
(excepting agricultural lands) has been administratively set 
at 40 percent of market value; that is, "full cash value" is now 
defined as 40 percent of market value. 



The legislature also has divided all property into nine classes 
and has stipulated the percentage of the assessed value to be 
taken as taxable value. The taxable value multiplied by the 
mill levy equals the taxes owed. All land and improvements 
on land, with the exception of certain industrial property 
less than three years old, has been placed in the same class. 

The legislature has declared that owners of new industrial 
property are to be given a tax break during the first three 
years' use of the property. During this period eligible 
industrial property is taxed at 7 percent of assessed value as 
opposed to 30 percent (84-301). It is debatable to what 
extent this tax break, even when associated with other 
economic incentives available to the state such as mortgage 
guarantees and assistance, actually affects the decision of an 
industry to locate in Montana. Other variables such as 



distance to markets, transportation links, labor and raw 
material appear to be of much greater significance. 
However, the tax break does indicate a policy. 

Railroad and public utility properties are also taxed some- 
what differently than most land and improvements on land. 
Historically, the assessed value of railroad property has been 
determined by consideration of such factors as original cost, 
depreciation, and net earnings. The assessed value of utility 
property is based on similar factors, but appears to be more 
heavily influenced by original cost data (37). 



Although agricultural land is classed with all other land it is 
assessed somewhat differently. The legislature has declared 
a tax policy which gives preferential treatment to agri- 
cultural land. In recognition of the large fluctuations in the 
value of agricultural products, the assessed value per acre of 
agricultural land has been linked to its productive capacity. 
This productive capacity is converted to dollars using the 
1963 market prices of agricultural products. In 1963 this 
resulted in an assessed value of 20 percent of market value 
(15). Figures for 1973-'74 indicate that assessed value of 
agricultural land is between 2 and 16 percent of current 
market value (38). 

The taxation of agricultural land is the one area where the 
legislature has acknowledged a relationship between 
taxation and land use. In what is popularly known as the 
"greenbelt bill" the legislature stated: 



Since the market value of many farm properties is 
based upon speculative purchases which do not 
reflect the productive capability of farms, it is the 
legislative intent that bona fide farm properties 
shall be classified and assessed at a value that is 
exclusive of values attributed to urban influences 
or speculative purposes (84-437.1). 

The law provides that land meeting specified criteria may be 
taxed only on its value for agriculture regardless of its 
market value. If land taxed under the provision of the law is 
taken from agricultural use the landowner is penalized by 
the difference between what he is paid in taxes and what he 
would have paid without the greenbelt bill during the 
previous four years. 



The policy embodied In this law is the protection of 
agricultural land from unsupportable tax burdens that 
would result in the sale of the land for suburban uses. 
Whether the law accomplishes this purpose, or merely 
provides a tax shelter for speculators, depends on the 
criteria used to define agricultural land. Unfortunately, the 
Montana greenbelt law may not be accomplishing the 
intended purpose. This will be discussed later in the study. 

The inclusion of timberlands in the same class as all other 
lands also has significant policy implications. The market 
value of timberland is a function of both the market value of 
its standing timber and the market value of the land. A high 
tax on standing timber has been interpreted as an incentive 



to log and a disincentive to the practice of good forestry 
management by landowners who choose not to harvest. 
(The higher the quality of one's timber, the higher one's 

taxes.) 

Lacking motivation and time to keep up with continually 
inflating market values, locally elected assessors tended to 
under-assess many types of property, particularly property 
lying outside city boundaries (38). In addition, local 
assessors may have been responding to political pressures 
for assessments lower than those that would have been 
made otherwise. 



property tax for civic improvements will never be able to 
afford them. 

There is one area, however, where the legislature has 
instituted a tax to remedy the undesirable effects of a land 
use. Stating that "It is the policy of this state to provide 
against loss or damage to our environment from the 
extraction of nonrenewable natural resources" (84-7002), 
the legislature provided for a resource indemnity trust 
funded by a tax on the extraction of mineral resources. 
Revenue from the fund is to be used to improve Montana's 
environment and correct past damages. 



Under-assessment of vacant lots and of all land with respect 
to buildings and improvements also contributes to the 
speculative holding of vacant land in cities, and in 
conjunction with lower rural taxes, to suburban sprawl. 
Under-assessing expensive property with respect to other 
land contributes to the spatial separation of the wealthy 
from others. 



With the exception of the assessment of agricultural land, 
then, the legislature has not recognized the land use effects 
of taxation. Nor has it established policies in this area. The 
effects, however, occur with or without the recognition of 
the legislature. The last section of this study discusses the use 
of taxation to guide future land use decisions. 



The 1973 legislature moved to strike inequities in the state's 
assessment procedures by making county assessors agents 
of the state Department of Revenue and providing for state- 
wide record keeping and unified direction of assessment 
activities (84-402). The legislature was not motivated by land 
use considerations, however, but by considerations of 
equity in taxation. 

Assessment is only the first step in determing taxes. The mill 
levy is the final step. Mills may be levied by state, county, city 
and town governments, and school and special districts. 

School district levies in particular contribute to differences 
in property taxes among counties and between urban and 
rural areas. Urban areas and more urbanized counties have 
consistently higher school levies even though the 1972 
legislature corrected this difference somewhat by shifting 
the funding of certain deficiencies in school appropriations 
from county and school districts to statewide levies. 

However, Montana's basic policy commitment to the 
financing of local government through local property taxes 
insures continued and substantial tax rate differences 
among counties and between urban and rural areas. In 
Montana, 96 percent of local government tax revenues, and 
62 percent of all local government revenues are from 
property taxes. Both figures are significantly above the 
national average. In most states property taxes are used for 
financing capital improvements; here, property taxes 
provide the operating revenues of local government (39). 
Relying on property taxes for operating revenues increases 
the difficulties faced by local government in providing 
public facilities, preserving open space, and making capital 
improvements. Local government is forced to seek land uses 
that pay high property taxes and discourage all others. In 
addition, the system tends to keep poor local governments 
poor and make wealthy local governments wealthier. 



THE MONTANA ENVIRONMENTAL 
POLICY ACT 

To the laws administered by the executive agencies, the 1971 
legislature, through the Montana Environmental Policy Act 
(MEPA), declared a state policy on the environment 
intended to supplement all other policies. The 
environmental policy states: "it is the continuing policy of 
the state of Montana ... to create and maintain conditions 
under which man and nature can coexist in productive 
harmony, and fulfill the social, economic, and other 
requirements of present and future generations of 
Montanans" (69-6503). 

The significance of this legislative action should not be 
underestimated. The Montana Environmental Policy Act 
(69-6501 to 69-6517) is a rare example of an effort by the 
legislature to establish and fund an agency to insure the 
implementation of a single coherent policy. MEPA 
establishes a process to review all state agency decisions that 
may significantly affect the quality of the human environ- 
ment and provides for a legislative agency, the Environ- 
mental Quality Council (EQC), to oversee the process. The 
EQC reports to the legislature and governor on state actions 
and programs contributing to or interfering with the 
environmental policy. 

What has not been resolved, either by the legislature or the 
courts, is the degree to which state agencies acting under 
other state policies are bound by the environmental policy. 
The legislature through MEPA declared a sweeping state 
policy but generally has provided neither specific guidance 
for its implementation, nor a system for resolving conflicts 
between MEPA and other state policies. In the absence of 
commanding legislative direction, conflict resolution is left, 
by default, to administrative discretion, and, perhaps the 
courts. 



Local governments that cannot afford public facilities or 
capital improvements are less attractive to development 
yielding high property tax revenues. But without such 
developments local governments dependent on the 



How It Adds Up 

Abstracting and consolidating the various policy state- 
ments identified in the state agency review can reveal the 



existing, but implicit overall land use policy of the state. 
Nowhere is this policy stated in full, and it is unlikely that 
anyone would suggest it be adopted as a consolidated policy 
the way it stands. This implicit statement, however, makes it 
state policy to: 

1. Protect and preserve fish and wildlife resources 
and provide Montanans with adequate hunting 
and fishing opportunities for all time. 

2. Protect areas primarily affected by natural forces 
and areas of historic, archeological or 
paleontological significance. 

3. Conserve the scenic and recreational resources of 
the state and provide for their use and enjoyment. 

4. Conserve the grass and soil resources of the state 
on a voluntary basis. 

5. Secure maximum economic social benefits of 
water use with as little degradation as practicable, 
while preserving fish and wildlife, avoiding waste, 
and providing adequate supplies for all uses. 

6. Balance all values affected by air pollution control 
while protecting public health and preventing 
injury to plant and animal life and property. 

7. Provide an integrated system of highways but limit 
the discretion of highway officials with few 
statutory guidelines, limit them primarily by the 
availability of federal and state funds. 

8. Promote the development of airports. 

9. Use state lands to provide maximum return to the 
school trust fund except to protect natural areas 
and antiquities, provide some recreation, but fail to 
protect surrounding land use values. 

10. Reclaim mined land and prevent the waste of coal. 

11. Diversify and expand the economic base of the 
state, create new uses for agricultural products, 
and accelerate the development of natural 
resources. 

12. Consider land use effects of taxation only with 
respect to agriculture. 

13. Create and maintain a productive and harmonious 
relationship between man and nature while 
implementing the first 12 policies. 

By its breadth, such a policy statement offers little guidance 
to state officials. Encompassing a great many interests and 
values, the statement fails to acknowledge that it is not 
possible to simultaneously promote all interests and protect 
all values. Tradeoffs must and will be made in administering 
the law. Although recent legislatures have moved to reduce 
administrative discretion in making required tradeoffs, 
existing statutes do not adequately resolve the conflicts 
among the values and interests that are involved in decisions 
affecting the use of land. In the absence of a commanding 
overall policy, state officials almost always will rely on the 
single policy expressed in the particular law they are 
administering. 

Moreover, the legislature does not always include in a law 
adequate provisions to accomplish the goals of the law's 



policy statement. Lacking provisions implementing the 
articulated policy, state officials are most likely to carry out 
whatever policy is implicit in the procedures provided. 

For example, officials of the Department of Natural 
Resources and Conservation acknowledge in the final 
environmental impact statement. Prickly Pear Creek Water 
Diversion Proposal (Department of Natural Resources and 
Conservation, August, 1974), that provisions of the Montana 
Environmental Policy Act and of the water quality act might 
be relevant to the diversion decision at hand. In particular, 
the latter act declares a public policy to "conserve water by 
protecting, maintaining, and improving the quality and 
potability of water for public water supplies, wildlife, fish 
and aquatic life, agriculture, industry, recreation, and other 
beneficial uses" (69-4801, emphasis added). 

Likewise, the policy statement of the Montana Water Use 
Act, the law under which the decision was being made, 
declares that "It is the policy of this state and a purpose of 
this act ... to provide for the wise utilization, development, 
and conservation of the watersofthestateforthe maximum 
benefit of its people with the least possible degradation of 
the natural aquatic ecosystems" (89-866, emphasis added). 

Yet in reaching their decision, the officials of the depart- 
ment felt they were restricted to the five specific criteria laid 
out in the act: 

(1) there are unappropriated waters in the source 
of supply; 

(2) the rights of a prior appropriator will not be 
adversely affected; 

(3) the proposed means of diversion or 
construction are adequate; 

(4) the proposed use of water is a beneficial use; 

(5) the proposed use will not interfere un- 
reasonably with other planned uses or 
developments for which a permit has been 
issued or for which water has been reserved 
(89-885). 

Protection of natural aquatic ecosystems or of wildlife and 
provisions for recreation are not included in these criteria. 
In fact, officials of the department argue that they would be 
obligated to grant a water use permit in response to an 
application satisfying the criteria even if it would result in 
the "dewatering of the stream" (p. 38, Prickly Pear Creek 
Water Diversion Proposal). 

When the legislature does not stipulate the policy that will 
prevail in conflicts among state policies then the 
formulation of governing policy is left to administrative 
agencies. Conflicts will be resolved through the most 
convenient interpretation of agency mandates or through 
bureaucratic infighting. Too often the policy favored by the 
agency with access to federal funding will be the policy 
followed. 

Montana's existing land use policy is a composite of many 
policy statements: many complementary, a few 



contradictory. But the lack of legislative recognition of the 
interactions of the policy statements leaves the 
determination of the direction provided by state policy to 
state administrators. 

Local Government Review 

In Montana the overwhelming majority of decisions 
concerning land use are made and carried out without the 
direct involvement of state government. A great many such 
decisions do, however, involve local government. 
Montana's 126 incorporated cities and towns and 56 
counties exercise both direct and indirect influence over 
the use of land. They could, at least theoretically, exercise 
direct regulatory review over almost every land use decision 
if they chose to do so. 

The legislature has delegated extensive land use control 
authority to local government, but the body of law contain- 
ing this authorization is cumbersome and occasionally 
confusing, particularly with regard to county government. 

Montana's old Constitution made a distinction between 
counties and incorporated cities and towns that was 
construed to mean that counties could not exercise 
legislative power while cities and towns could. The 1972 
Constitution narrows the difference and declares that 
counties as well as incorporated cities and towns may 
exercise legislative and administrative power. Viewing the 
provisions in theold Constitution, theconfusion inthelaws, 
and a Montana Supreme Court decision striking down as 
unconstitutional the zoning powers granted to counties in 
1957, counties have been very reluctant to exercise any 
direct land use control. 

The 1972 Constitution also directs the legislature to provide 
for review of existing local government forms and for an 
election to allow choice of alternative forms of city, county 
and city-county government. The 1974 legislature created a 
state Commission on Local Government to carry out the 
local government review at the state level and provided for 
local government study commissions to carry out the review 
at the local level. Elections on alternative local government 
forms are set for 1976. This extensive review of local govern- 
ment could alter significantly the role of local government 
in land use decisions; meanwhile, local governments 
operate under a body of law that has accumulated over the 
last 45 years. 



ZONING 

The 1929 legislature authorized incorporated cities and 
towns to regulate the use of land through zoning. Zoning 
regulations must be prepared in accordance with a compre- 
hensive plan and designed to: 

lessen congestion in the streets; to secure safety 
from fire, panic, and other dangers; to promote 
health and the general welfare; to provide 
adequate light and air; to prevent the over- 
crowding of land; to avoid undue concentration of 
population; to facilitate the adequate provision of 



transportation, water, sewerage, schools, parks, 
and other public requirements (11-2703). 

Cities of the first class (classes of cities are based on 
population) may extend their zoning authority three miles 
beyond their boundaries; cities of the second class may do 
so for two miles and cities and towns of the third class may 
extend zoning for a mile. City zoning may beextended only 
if the area over which the zoning authority is to be extended 
has not been zoned by the county under the broader of the 
two county zoning authorities (Title 16, Chapter 47, to be 
discussed below). To exercise this authority a city-county 
planning board must be formed for the area to be zoned, or 
the city planning board must be increased to include two 
representatives from the area. 

A safeguard is provided in the authorization of zoning 
through the provisions for a board of adjustment to act on 
requests for special exceptions from the zoning ordinance. 
A counterbalancing safeguard requires a three-fourths vote 
of the members of the city or town governing body to 
change the zoning ordinance if 20 percent of the property 
owners affected by a proposed change sign petitions of 
protest (11-2705). 

Counties have been granted the authority to zone under 
Sees. 16-4101 to 16-4107 and Sees. 16-1701 to 16-4711. The 
first of these grants of authority, known as the rural zoning 
law or the40-acre law,allowscounty commissioners to zone 
districts of at least 40 acres in size when they are petitioned 
to do so by at least 60 percent of the landowners in the 
district. However, commissioners may not create this type of 
zoning district in an area which has been zoned by a city 
under its powers to extend zoning authority outside city 
boundaries (16-4101). 

Whenever a zoning district is created, the county's com- 
missioners, surveyor and assessor must sit as a planning and 
zoning commission. The commission must prepare and 
adopt a development pattern for the physical and economic 
development of the district. The commission may prepare 
zoning regulations to enforce the pattern and the 
regulations may be adopted officially by the county 
commissioners. However, a district may not regulate land 
used forgrazing, horticulture, agriculture, or the growing of 
timber (16-4102). 

The second grant of zoning powers allows county and city- 
county planning boards to recommend, for consideration 
by county commissioners, zoning regulations for areas with 
adopted comprehensive plans. In addition to conforming to 
the comprehensive plan county zoning regulations must be 
designed to accomplish the same ends as city zoning 
ordinances as laid out in Sec. 11-2703 (cited above). 
Moreover, county zoning regulations may not prevent "the 
complete use, development or recovery of any mineral, 
forest, or agricultural resource" (16-4710). 

The legislature has provided substantial safeguards in the 
procedures for adopting county zoning regulations. If 40 
percent of the landowners within a proposed zoning district 
submit written protest against establishment of the district 
or the adoption of the regulations, the county com- 



missioners may not act and another zoning resolution may 
not be proposed for that district for at least a year (16-4705). 
When zoning regulations are adopted the county com- 
missioners must provide for a board of adjustment to act on 
requests for special exemptions from the zoning 
regulations. 

The 1971 legislature expanded the county's zoning authority 
by allowing adoption, as an emergency measure, of a 
temporary interim zoning map or regulation to "classify and 
regulate uses and relate matters as constitutes the 
emergency" (16-4711). The emergency action auto- 
matically expires a year after adoption, but the county com- 
missioners may extend the regulation for an additional year 
(16-4711). 

An earlier effort to grant zoning power to county com- 
missioners was found unconstitutional by the Montana 
Supreme Court in 1961 (Plath v. Hi-Ball Contractors, Inc., 139 
Mont 263, 362 P.2d 1021). The Court found that the legis- 
lature had lodged excessive discretion in planning boards 
and had unconstitutionally granted legislative power to 
county commissioners. 

Cities, towns and counties also are authorized to zone 
around airports to eliminate or prevent dangerous 
obstructions. The statutes granting this authority are 
discussed as part of the state agency review under the 
Department of Intergovernmental Relations heading earlier 
in this study. 



PLANNING BOARDS 

The legislature has authorized counties and incorporated 
cities and towns to create planning boards. Planning boards 
are strictly advisory. A planning board may be created by an 
incorporated city or town, or by a county or by any 
combination or group of these local governments. 
However, a city or town wishing to establish a planning 
board must notify and allow the county commissioners 
opportunity to create a city-county planning board instead. 
The jurisdiction of a city-county planning board normally 
extends AVi miles beyond the boundaries of the city or cities 
represented on the board. The jurisdiction may be 
extended by petition of 5 percent of the landowners in the 
area to be included, provided that a majority of the resident 
landowners in the area do not sign protests against the 
proposed extension. County commissioners may not 
establish a county planning board if a majority of county 
voters (residing outside of cities and towns or the 
jurisdiction of existing city-county planning boards) 
disapprove in writing. 

Planning boards must prepare and propose to the 
appropriate local governing bodies master plans for their 
jurisdictional areas. Master plans may include: 

1. Surveys and studies of existing conditions and 
probable future growth. 

2. Maps, charts and descriptive material presenting 
the existing natural and man-made characteristics 
of the area. 



3. Recommendations and plans for development, re- 
development and improvement of the area. 

4. Long-range development plans for public works 
projects. The local governing bodies may adopt the 
master plan. If they do, they must use it as a guide 
and consider it in their decisions regarding public 
facilities and structures, zoning, and subdivision 
regulations (11-3840). 



SUBDIVISION REGULATION 

The Montana Subdivision and Platting Act directs counties 
and incorporated cities and towns to regulate land sub- 
division under statutory standards. The act is discussed in 
the state agency review under the Department of Inter- 
governmental Relations heading earlier in this study. 



OTHER POWERS 

At one time counties held substantial acreage. To cooperate 
with county commissioners in administering county land 
the 1933 legislature created a County Land Advisory Board 
in each county and gave the boards purpose by declaring a 
firm policy: 

To promote the conservation of the natural 
resources of the state; to provide for the conserva- 
tion, protection and development of forage plants, 
and for the beneficial utilization thereof for 
grazing by livestock under such regulations as may 
be considered necessary; to put into crop 
production only such lands as are properly fitted 
therefor; to encourage the storage and conserva- 
tion of water for livestock and irrigation; to place 
the farming and livestock industries upon a 
permanent and solid foundation; ... to gradually 
restore to private ownership the immense areas of 
lands, which have passed Into county ownership 
because of tax delinquencies (16-1505). 

Cities directly control the use of land or influence land use 
decisions through the power of eminent domain (11-977); 
the power to organize special improvement districts for 
construction, improvement and maintenance of streets, 
malls, parking facilities, drainage and flood control works, 
lighting districts and other projects (11-2201 to 11-2288): and 
the powers granted to accomplish urban renewal (11-3901 
to 11-3925). 

Counties influence land use decisions through the powers 
to establish rural improvement districts (16-1601 to 16-1638); 
metropolitan sewer districts (16-4401 to 16-4418); and 
county water and sewer districts (16-4501 to 16-4535). These 
three chapters of law contain careful procedures for the 
establishment of such districts and for effective protest by 
citizens affected by county actions. 

County commissioners also have responsibility for locating 
county roads and for recommending routings of secondary 
highways (32-2801 to 32-2820). They also may establish a park 
commission to acquire, establish and maintain parks, play- 



-36— 



grounds, swimming pools, golf courses, libraries and other 
projects (16-4801 to 16-4807). 

The Planned Community Development Act of 1974 
revamped the procedure used by cities and towns to expand 
through annexation and declared a state policy that "Areas 
annexed to municipalities . . . should receive the services 
provided by the annexing municipality as soon as possible 
following annexation" (11-515). This legislation wasenacted 
to curtail annexation merely to increase the tax base yet 
allow annexation of unincorporated areas benefiting from 
city services. 

Each municipality and county also may influence land use 
decisions by acquiring land, buildings, and other improve- 
ments for an industrial project through the issuance of 
bonds that impose a limited obligation on those local 
government bodies. Projects financed by these bonds may 
be sold or leased as the governing body sees fit but may not 
be operated by either the municipality or county. The law 
stipulates that any such project must be "suitable for use for 
commercial, manufacturing or industrial enterprises, 
recreation or tourist facilities, and hospitals, long-term care 
facilities or medical facilities" (11-4402, 11-4401). The law 
does not stipulate any criteria for selection of projects or 
require that they conform toa land use plan forthearea (11- 
4102). 

The legislature also has directed that cities, towns, counties, 
municipalities and the state may acquire land for permanent 
open space. The Open-Space Land Act, enacted by the 1969 



legislature, authorizes jurisdictions to acquire land for 
permanent open space or to designate as open space land 
already controlled. Open space designations must conform 
to urban area comprehensive plans (62-604). 

Land designated as permanent open space may not be used 
for other purposes unless equivalent land is designated 
permanent open space in its stead. In addition, the taxes on 
open space land in which there is less than full public 
ownership must reflect the change in market value resulting 
from the public interest (62-605, 62-608). 



Much Offered, Little Required 

The legislature has not attempted to dictate policy to local 
governments. Much is left to the discretion of locally 
elected officials. The policy inherent in the laws relating to 
land use and local government is one of offering many 
powers to local government officials, but only requiring 
them to exercise a few. Only in rare cases has the legislature 
mandated the policy to guide the use of those powers. For 
example, the Montana Subdivision and Platting Act requires 
local governments to review certain subdivisions in a 
specified way, but it does not bind local officials to a 
decision making policy. Certainly, with regard to issues of 
purely local concern, this is as it should be. 

Montana's land use policy at the local level is thus a 
composite of the policies of 126 cities and towns and 56 
counties. 



—37- 



//. WHAT MIGHT BE DONE 



LAND USE ACTIVITIES 
IN OTHER STATES 



Montanans are not alone in their struggle to come to grips 
with the implications of land use decisions on the future. 
Similar efforts are occurring in county courthouses, town 
halls, and legislative assemblies throughout the nation. 
Seven states* in particular have moved to the forefront of 
this struggle by enacting and implementing a variety of land 
use policy legislation. The following is a review of their 
efforts. Also included is a review of the draft of the American 
Law Institute's Model Land Development Code, the 
culmination of a 12-year effort to replace the aging 
foundations of American planning and zoning law. 

Not included here are the efforts of those states which have 
regulated only shorelines or coastlines. The circumstances 
surrounding such efforts, particularly the incentive and 
direction provided by the Federal Coastal Zone Manage- 
ment Act of 1972, make their experiences only marginally 
applicable in Montana. 

There are common themes and distinctive contrasts in the 
seven state efforts. Each is the product of a unique 
combination of political and cultural forces as they were 
arrayed when the legislation was enacted. Yet some lessons 
and ideas from the experiences of these states are worthy of 
consideration by Montanans. 

The state land use efforts reviewed demonstrate, for 
example, that state government can directly involve itself in 



the land use decision making process and must do so when 
local government cannot or will not act. The experiences of 
Hawaii and New York show that state government can 
exercise the authority to zone, however, most other states 
have rejected that option. In Vermont, Florida, Oregon and 
Colorado, people and local governments retain primary 
responsibility for land use decisions with the state supplying 
assistance and review, hlowever, in each case local 
government is required to broaden its perspective and 
consider long as well as short-run considerations; the wide 
ranging implications of actions as well as localized effects. 

State level involvement In land use is not without costs, both 
in money and in adjustments required in the expectations 
and perceptions of those being regulated. Additional costs 
to developers will be reflected in the price of their develop- 
ments, and the cost of government review will be reflected 
in taxes. But what are the costs of not acting? These costs also 
can be measured in money — for additional services, for 
roads, for schools — as well as in lost values and amenities. 
The states reviewed here have decided that the costs of not 
acting far exceed the costs of state level involvement. 

State level involvement is not an instant cure-all for all land 
use problems, however. In the seven states reviewed there 
remain difficulties. Insuring that all projects intended to fall 
under the purview of the legislation are included in the 
implementation procedure and that the decisions made 
under the procedure are enforced, is one. Coordination of 
the land use policy with other state programs, taxation in 

, Oregon and Colorado, New York's aclron 



-39— 



particular, is another. In most of the states difficulties are 
only beginning to surface, although they are clear in the 
Hawaiian case. 

A serious problem common among many state programs is 
the limiting of the review of land use decisions to a case-by- 
case basis. Frequently, cumulative effects of many small 
decisions, and the basic question whether development 
should occur at all, are not considered. Recognizing this 
problem, Oregon, Hawaii and Florida have instituted 
programs to define the goals and priorities of their citizens. 

In the seven states land use decisions have been opened up 
to public scrutiny. The decision makers have been forced to 
consider the effects of their decisions. And the whole 
process has increased public awareness of the implications 
of land use choices. The mechanisms established also 
provide a means to guide future growth as the goals and 
desires of each state's citizenry are articulated. 

A final lesson that emerges is the need for strong leadership 
in guiding land use legislation through a state legislature. In 
almost all the reviewed states the governor or the governor 
and a concerned group of legislators provided strong 
support for the legislation and worked hard for its enact- 
ment. 

The experiences of other states can offer Montanans 
insights and ideas, but only Montanans can choose and 
Implement a land use policy for Montana. 

HAWAII 

Passage of the Land Use Law (1961) made Hawaii the first 
state to express in law a modern awareness of the effects of 
land use on the quality of life available to the state's citizens. 
Hawaii took a strong stand, stronger than any other state 
which has followed, but perhaps the perception of land as a 
resource is particularly clear to those who live on Islands. 
The Hawaiian effort is the only U.S. example of statewide 
zoning and offers the lessons of over 10 years' experience 
with this approach to land use regulation. 

How It Works 

The Land Use Law and its amendments established the State 
Land Use Commission, directed the commission to classify 
all the lands of the state into four districts and authorized the 
adoption of rules and reguiationsgoverning land use within 
the districts. 

The commission is composed of seven private citizens, 
appointed by the governor and confirmed by the senate, 
the director of the Department of Lands and Natural 
Resources and the director of the Department of Planning 
and Economic Development. The entire state has been 
divided by the commission into four districts stipulated in 
the statute: urban, rural, agricultural, and conservation. 

Urban districts include substantially all currently urbanized 
areas plus a reserve of land theoretically sufficient to 
accommodate urban expansion for approximately 10 years. 
The Land Use Law requires a review of all district boundaries 
every five years. Uses permitted within urban districts are 



determined by county zoning regulations, but the county is 
not obligated to zone all land In the district for urban uses. 
Thus, county and state approval are required for most urban 
development. 

Rural districts are characterized by low density residential 
development of a semi-rural nature. Lots must be a half-acre 
or larger (large lots by Hawaiian standards). This 
classification has been used quite sparingly. 

Agricultural districts Include crop and grazing lands plus 
sugar mills and other industrial activities associated with 
Hawaiian agriculture. Parcels must be at least an acre. 
Delineation of agricultural districts is based primarily on 
detailed studies of agricultural suitability. However, lava 
flows and other lands unsuited for agriculture are included 
in agricultural districts when conservation district criteria 
cannot be met. 

The Land Use Commission regulates land use in the rural 
and agricultural districts and may issue special permits for 
certain uses, such as the location of a new town, in either 
kind of district. Sucn permits require the concurrence of the 
appropriate county planning commission. 

Conservation districts Include Forest and Water Reserve 
Zones (state-owned lands reserved for conservation 
purposes under earlier law), some private lands in 
mountainous areas of more than 20 percent slope (in 1969 at 
least a third of the land in conservation districts was privately 
owned (40) ), and a 20- to 40-foot shoreline buffer zone 
around the entire coast of the Hawaiian Islands. Land use 
within the conservation districts is regulated by the Depart- 
ment of Land and Natural Resources. Among uses permitted 
are cabins, residences, recreational trailers, resorts, hotels, 
golf courses, marinas, and governmental activities. The 
Board of Natural Resources passes on all applications for 
permits within the conservation districts. As might be 
expected, there is a continuing debate over the activities 
that should be allowed in the districts (40). 

Only the Land Use Commission may set district boundaries. 
From 1964 to 1973 there were 244 applications for boundary 
changes filed with the commission (42). Proposed boundary 
changes and applications for special permits are decided 
under specific time constraints established by the statute. A 
public hearing is held in the county where the land is 
located and the county planning commission reviews the 
request and offers comments. Six of the nine Land Use 
Commission members must vote for the boundary change 
to effect passage. It is particularly noteworthy that public 
agencies must obtain permits from the Land Use 
Commission or the Board of Natural Resources for their 
activities within rural, agricultural, and conservation 
districts. 

Effects and Problems 

The major effect of the Land Use Law appears to be the 
preservation of agricultural land and a compactness of 
cities. From 1964 to late 1970 the commission received 
requests to reclassify more than 100,000 acres to urban 
district status. Only 30,000 acres on the fringes of existing 
urban areas were reclassified, and of these only 3,500 acres 



were considered prime agricultural land. In addition, there 
is evidence that plantations are now planned for long-term 
growth and stability due to the assurances inherent in the 
Land Use Law. The flexibility of the commission allowed by 
its clear and powerful legislative mandate also enables it to 
play an active role in directing the pattern and rate of 
growth. The commission has the potential to become the 
main instrument for guiding the state's growth (41). 

The Hawaiian system is not without its problems. Housing is 
very costly in Hawaii. The 1970 census estimated the median 
value of owner-occupied housing to be $35,000 — more 
than twice the national average of $17,000. It is argued that 
containment of the urban areas and allowing only moderate 
expansion on the urban fringe has driven up the price of 
residential land and led to high housing costs (40). A 
consultant's report in 1969 concluded that the Land Use Law 
may have aggravated the housing shortage but other factors 
may have contributed including large profits made by 
builders, a shortage of heavy equipment and experienced 
construction workers, a choice by developers to construct 
only high cost housing because it brings a great return, and 
the amount and cost of required improvements on lots. 
Generally acknowledged is the problem of time delay 
between the application for agricultural or rural land re- 
classification (usually to urban land) and the ensuing 
approval by the county. 

There have also been problems in carrying out the law. With 
its small staff the Land Use Commission cannot follow up on 
permits to enforce conditions and restrictions; nor can it 
check on development that might be occurring without a 
permit. The Land Use Law directs the counties to enforce 
the decisions of the commission but there is no check on 
this process. Similarly, the Department of Lands and Natural 
Resources does not have the staff to make field inspections 
of the areas for which permits are requested, let alone 
inspect for violations of conditions attached to permits that 
are granted. 

The Land Use Law directs assessors to give consideration to 
the commission's classifications in making assessments, but 
this seems to have had little effect. (Hawaii has uniform 
statewide property assessment.) Some observers say the 
commission and the Department of Revenue even appear 
to be working at cross purposes; however, some of the diffi- 
culties can be traced to contradictions in the statutes (40). 

County officials are said to be unhappy with several aspects 
of the Land Use Law. They like having control over urban 
development in urban districts through zoning but they 
resent the final authority of the Department of Land and 
Natural Resources in controlling urban uses in conserva- 
tion districts. It is also argued that county level planning now 
is more sophisticated than state planning and that the 
counties' recommendations should be given the greater 
weight in decisions of the Land Use Commission. (County 
decisions are required to be based on sound planning since 
the Hawaiian Supreme Court ruled that all rezoning must be 
supported by a comprehensive planning decision.) In 
addition, the Land Use Commission is said to maintain little 
contact with county public works departments and thus has 
no knowledge of the county's ability to provide public 



services to areas under consideration for reclassification to 
urban (40). 

The credibility of the Land Use Commission has been hurt 
by accusations of conflict of interest. The commissioners 
also are said to show favoritism to their home island in land 
use decisions (40, 42). Considering the influence of the 
decisions made by the commission such accusations are not 
surprising. In addition, the circumstances surrounding the 
passage of the Land Use Law have changed; there is now 
some question about the desirability of preserving all agri- 
cultural land when the markets for Hawaiian pineapple and 
sugar have been depressed. The last few years have seen a 
number of unsuccessful attempts to alter the law. 

Lessons 

Before considering the applicability of the Hawaiian 
experience to Montana, the circumstances surrounding 
passage of the Land Use Law must be studied. In 1961 any 
threat to the sugar and pineapple industries was a serious 
threat to Hawaii's economy. The draftsmen of the law and 
the owners and operators of large plantations saw such a 
threat in the gradual sprawling of Honolulu on to the prime 
agricultural land of the central valley of Oahu. Hawaii does 
not have much prime agricultural land to lose. Only 10 
percent of the state's four million acres are suitable for 
crops. The great tourist boom of the late 1950s also was seen 
as a threat to agricultural land. 

On the political front, there were few small landholders to 
feel threatened by the law; the large landholders 
considered it desirable. Nearly 90 percent of the privately 
held land in the state (almost half of the total area) is 
controlled by a small number of people. Such is certainly 
not the case in Montana. 

Several other factors peculiar to Hawaii also must be 
considered. Hawaiians have long been accustomed to a 
strong, centralized territorial government and they had no 
tradition of local government. Before becoming a territory, 
Hawaii was ruled by a monarchy. Under its Polynesian law 
areas of land were decreed usable for certain purposes only. 
Alternative use of the land was subject to severe penalty — a 
system very similar to that of the Land Use Law (40). After 
statehood Hawaii retained simple governmental structure: 
four counties and the state (the city-county of Honolulu 
includes about 82 percent of the state's population). In 
addition, Hawaiians have long nurtured a conservation 
tradition. 

One lesson Hawaiians have learned from their experience 
in regulating land use is that land use regulations alone 
cannot guarantee the protection of those values which 
make the islands such desirable places to live and visit. 
Hawaii is among leading states beginning to grapple with 
the basic growth questions that underlie land use issues. The 
1973 Hawaiian legislature established a permanent Com- 
mission on Population and directed it to investigate the 
carrying capacity of the state regarding agricultural 
production, waste recycling and natural system 
regeneration. 



—41- 



The 1974 legislature adopted a resolution directing the 
executive branch and a joint interim legislative committee 
to analyze a report by the state's Department of Planning 
and Economic Development that recommended a slow 
growth policy for the state (43). The resolution specifically 
directs the development and submittal of recommenda- 
tions to the 1975 legislature for action programs to 
implement the "slow growth" alternative outlined in the 
report. 

ADIRONDACK PARK 

Adirondack Park in upstate New York is another example of 
innovative land use controls applied by state government. 
The park includes approximately six million acres (twice the 
size of Yellowstone) and embraces all or part of 12counties 
and 89 towns. Sixty percent of the area within the park 
boundary is in private ownership. The 40 percent in public 
(state) ownership has been protected since 1894 by a 
provision of the New York Constitution directing that these 
lands be kept "forever wild." There have been more than 
100 efforts to weaken this directive in the last 80 years, 
almost all rejected at the polls. 



of compatible land use activities were issued to reflect the 
land's ability to withstand use and maintain its general 
character. The purposes and objectives of each use category 
are explicitly stated in the plan. Density guidelines and 
compatible use lists were not developed for hamlets or 
industrial use areas. The development of such areas is left to 
local discretion in hopes that a diversity of environments 
will result. There are also comprehensive shoreline 
restrictions throughout the park with varying requirements 
for each use category. 

The densities in the guidelines range from 15 principal 
buildings per square mile (approximately one building per 
42 acres) in resource management areas to 500 buildings per 
square mile (approximately one per acre) in moderate 
intensity use areas. Determining density for a particular area 
further depends on such factors as soil conditions, slope, 
elevation, wildlife habitats, and the ability of local govern- 
ment to provide services. The effect of the plan can be 
illustrated by noting that 53 percent of the private land has 
been designated as resource management area and that the 
next most restrictive category, rural area, includes an 
additional 32 percent of the private land (44). 



Long a playground for the wealthy, the Adirondack 
Mountains have experienced a tremendous increase in use 
over the last 30 years. About five years ago, a private study 
recommended turning the area into a national park. This 
suggestion irritated many New Yorkers who felt that the 
state had been, and could continue to do a better manage- 
ment job than the federal government. The change in 
character that would result from national park status was 
said to threaten the subtle values of the park. The governor 
responded by appointing the Temporary Commission on 
the Future of the Adirondacks, which recommended a 
permanent park agency and the preparation of a park plan. 

Continuing where the temporary commission left off, the 
Adirondack Park Agency developed a sophisticated plan 
and land use program to guide future park development. 
The plan and program is quite complicated, rich in detail, 
and not easily summarized. There are really two plans: one 
for the public lands, and one for the private lands. The first 
needed only the approval of the governor, and this was 
obtained in July of 1972; the latter needed to be enacted 
into law because it dealt with private property rights and was 
extremely controversial. The private land use and develop- 
ment plan passed the legislature on May 14, 1973 by a 117 to 
12 vote in the Assembly and 52 to 3 in the Senate. The 
governor signed the bill into law the following week (44). 

How It Works 

The master plan for the state's 2,275,000 acres of park 
classifies the land into four broad categories: wilderness, 
primitive area, canoe area, and wild forest. In addition, 
there are intensive use (major travel corridors) and special 
management (wild and scenic river) areas. 

The master plan for the private land places each parcel into 
one of six use categories: industrial, hamlet, moderate 
intensity, low intensity, rural, or resource management. For 
the last four categories, general density guidelines and lists 



Responsibility for administering the Adirondack Park plan 
and land use program is shared by local government and the 
park agency. Enforcement is through a permit system. 
Certain specified typesof development (thetype varies with 
the use category) and development in critical environ- 
mental areas are reviewed by the agency irrespective of 
local government jurisdiction, jurisdiction over other 
specified types of development is given to those local 
governments that have land use programs approved by the 
park agency. If the local government does not have an 
approved program the development is reviewed by the 
agency. However, in all cases the agency has standing to 
participate in local review and to seek judicial review of 
permits granted by local government. 

Effects and Problems 

Perhaps it is too soon to see what the effects of the Adiron- 
dack Park management program will be. Certainly, it has 
stopped the land rush that was beginning in the late 1960s. 
There will be very few large second home developments in 
the park. The town of Altamont, population less than 6,700 
in 1972, will not grow into a suburb of 640,000 as would have 
been permitted under its zoning ordinance. The effects on 
the local economy are still unpredictable. The area is poor, 
with high unemployment and a dependency on logging and 
recreation businesses. The forest products industry 
complains that there are insufficient industrial sites within 
the park, and that the cost of hauling to available sites will 
hurt the logging industry. This same group traditionally has 
been unhappy with the "forever wild" directive in the 
Constitution (45). 

Adirondack Park is quite expensive to the people of New 
York. The state pays about $6 million a year in lieu of taxes on 
the state lands. The executive secretary of the North- 
eastern Loggers' Association has estimated that opening up 
all state forest lands in the park to "intensive management" 
would save the state an additional $46 million a year (45). In 
addition, the state has made money available to aid local 



-42- 



governments in developing land use programs. The whole 
question of taxes and the park is under investigation by the 
State Board of Equalization and Assessment. The board will 
submit a final report with recommendations to the governor 
and the legislature in early 1976. 

Lessons 



The Adirondack Park example shows that the state can zone, 
both in cooperation with local government and by super- 
seding local government. The park experience also demon- 
strates that when the people of a state have enough interest 
in protecting a district they may do so with only reasonable 
consideration for the local economy. But Adirondack Park is 
a special case and the experience is not easily transferable. 

Whether it is a park or not, the Adirondack Park name has 
maintained a special significance to New Yorkers. The park 
preserves what once was and represents a haven where the 
air is still clean and fresh, most lakes and rivers are clear and 
unpolluted, and the mountain streams provide water that 
does not have to be treated for drinking. Given the circum- 
stances it is not difficult to understand how the 19 million 
New Yorkers who do not live in the park could decide to 
trade some of the expectations of the less than a quarter 
million landowners who do live there for the preservation of 
the integrity of the park. It is hard to imagine similar circum- 
stances occurring in many other areas though, particularly 
in Montana. 



1970 saw nearly universal concern about the environment 
and Vermonters were tired of the misuses of land they had 
seen occurring in their state. But existing law required a 
town plan before a town could implement controls over 
land use. (In Vermont, local government is at the township 
level.) There also was a generally recognized lack of 
planning competence at the local level. It was seen that 
preparing town plans could prevent action in most areas of 
the state for many years. The only alternative was to sanction 
a strong state role (40, 47). 

How It Works 

Act 250 established a permit process for the following 
activities: housing or trailer park developments of more 
than 10 units; commercial or industrial improvements of 
more than 10 acres; subdivision of land for sale in parcels of 
10 or fewer acres; and any development on land higher than 
2,500 feet above sea level. To encourage local government 
responsibility, permits are required for all commercial and 
industrial developments of more than 1 acre (instead of 10) 
in towns without permanent zoning and subdivision 
regulations. The permit process also applies to develop- 
ments proposed by state and local agencies. 

The act divided the state into eight districts; established a 
district commission in each to implement the permit 
process; and established a State Environmental Board to 
oversee the permit process, hear appeals from aggrieved 
parties and perform certain specified planning functions. 



VERMONT 

With the passage of Act 250, the Land Use and Develop- 
ment Control Law, in 1970, the Vermont legislature 
demonstrated that one of the country's most rural state 
legislatures also could be one of the most progressive. 
Vermont had been a rural enclave lying north of the 
Washington-New York-Boston megalopolis and south of 
the recreation sphere of Montreal. The 1960s brought inter- 
state highways, generally increased mobility and 55,000 new 
residents — an increase of only 15 percent, but five times the 
increase of the previous 10 years (46). 

Taxes continually increased in response to demands for 
expanded services. The trend toward agglomeration of the 
traditional Vermont small holding into larger farms 
accelerated, but perhaps the last straw was an announce- 
ment, in the summer of 1968, of plans for a 20,000-acre 
development on hilly land covered by thin soils, clearly 
unsuitable for septic tanks, in the southern part of the state. 
The project was being proposed by a subsidiary of the paper 
company that had owned the land for decades. 

A Commission on Environmental Control was established 
by the governor and immediately recommended State 
Health Department review of water supply and sewage 
disposal on projects of three or more lots of 10 acres or less. 
The final report of the commission recommended strong 
state intervention in the regulation of land use — an idea 
that historically would have been opposed by most 
Vermonters. Yet Act 250, the bill embodying the 
recommendations, passed almost unanfmously. 

Many factors contributed to the passage of the act. The year 



Each district commission comprises three local residents 
appointed by the governor. The chairman serves a two-year 
term; members serve staggered four-year terms. The 
commissioners work part time and receive $25 a day for 
expenses. Initial review of all permits is done by these local, 
lay citizens, and the general acceptance of the permit 
process has been attributed in part to this system. It avoids 
arousing the distaste many people have for far-removed 
bureaucratic authority (46). 

The Vermont Environmental Board is an independent 
regulatory agency composed of nine lay citizens appointed 
by the governor. Members serve four year terms; thechair- 
man is appointed for two years but serves at the pleasure of 
the governor. The board meets about four times a month 
and members receive $25 per day. The board is within the 
Agency of Environmental Conservation for administrative 
purposes and may draw upon agency's staff. In addition, the 
board has a small staff of its own including area 
coordinators, who work with the district commissions and 
the field investigators who are in charge of enforcement. 

The permit process begins when a party desiring to under- 
take a project falling under the purview of the law files an 
application with the appropriate district commission and 
notifies the affected municipality and regional planning 
agency. A copy of the application is sent to the Agency of 
Environmental Conservation, which prepares, with the help 
of other state departments, a position statement on the 
application. State level review, which includes an 
investigation of the project's impact on roads, schools, and 
the local economy, is coordinated by the Act 250 Inter- 
agency Review Committee; it meets biweekly, and includes 



-43- 



the Departments of Health, Highways, and the Agency of 
Development and Community Affairs. 

The district commissions hold public hearings on all applica- 
tions. Adjoining property owners, local and regional 
planning agencies, and local government members are 
parties to the application by law. In addition, the district 
commission may allow any interested citizen or group of 
citizens to testify and often invites comments from parties 
who apparently represent an involved interest. The style of 
the hearing varies somewhat from district to district, but 
generally it is informal and the commissioners rarely 
conduct their own investigation. Usually they act solely on 
the record presented to them. 

To approve a permit the commission must find that the 
project is consistent with criteria in the statute. Briefly, the 
project must not cause undue air or water pollution, place 
an unreasonable burden on existing water supplies (the 
project must have an adequate supply of water), highways, 
schools, or other government services, result in excessive 
erosion or have an undue adverse effect upon scenic, 
historic or cultural values of an area. The application must 
conform to state plans, when adopted, and the attorney 
general has ruled that an application also must conform to 
adopted local and regional plans. However, most sub-state 
plans are too general to offer much guidance (40). 

The district commission may deny an application, approve 
it, or approve it with conditions. The latter alternative is used 
most of the time, and the power to impose conditions has 
been applied broadly by the commissioners. Conditions 
have included protective covenants and specifications for 
plumbing and electrical wiring. The type and specificity of 
conditions appears to vary from district to district and some 
say this is a reasonable reflection of the differing concerns 
throughout the state. 

The decision of a district commission may be appealed to 
either the Environmental Board or a county court. Further 
appeal can be made to the state Supreme Court. The law 
grants appeal to the applicant, a state agency, the regional 
and municipal planning commissions and the municipality 
affected. The board, however, generally accepts comments 
on an appeal from any party which appeared before the 
district commission. Acting on an appeal, the board 
schedules a new hearing and bases its decision on the same 
criteria that govern the district commissions. New issues or 
additional proof may be presented to the board. 

Act 250 also directs the Environmental Board to prepare and 
adopt a series of three plans to guide district council and 
board decisions. First, an interim capability plan setting 
forth the ecological constraints on development. Second, a 
capability and development plan attempting to reconcile 
ecological capability with citizen desires and future needs 
and establishing state goals for development. Third, a state 
Land Use Plan translating the goals into detailed maps of 
land use designations. 

The exact purpose of the Land Use Plan has become some- 
what muddled. Originally, it was recommended that the 
plan be adopted by the Environmental Board and approved 



by the governor, but not the legislature — making it a 
generalized guideline not expected to be followed exactly. 
However, during the debate on Act 250 the legislature 
decided to reserve to itself final approval of the plan after 
the board and the governor had endorsed them. This 
stipulation would give the Land Use Plan the effect of law. 

Both the interim land capability plan and the capability and 
development plan passed the legislature on schedule, but 
the Land Use Plan was not enacted by the 1974 legislature. 
Actually delineating areas where certain kinds of develop- 
ment could or could not occur came as quite a shock to 
many legislators. The proposed plan aimed to encourage 
local land use plans by allowing local government time to 
act before the state acted. However, not even weak drafts 
developers tend to comply because local residents are very 
aware of their actions, but many state officials believe that 
many small developments theoretically covered by the act 
occur without review. The act does require that the 
property transfer tax form required to accompany every sale 
of land in the state include a certificate of compliance with 
or exemption from Act 250. This certificate must be signed 
under oath by the seller, and a copy is sent to the Agency of 
Environmental Conservation. 



Effects and Problems 

A major benefit of the Act 250 permit process has been the 
ability of the district commissions to enforce existing but 
previously poorly enforced state and local environmental 
controls. In addition, the Interagency Review Committee 
has created important communication channels among 
state departments to exchange views on policy and 
coordinate activities (40). 

Most Vermonters agree that the permit process has 
improved the quality of growth; many believe that it has 
slowed the rate of growth. But is is very difficult to 
substantiate the effect on the rate of growth since this would 
require knowing what has not been built as well as what has. 
A 1973 study by the Conservation Law Foundation described 
Act 250's impact as "improving development rather than 
directly forbidding it, and .. . not a mechanism for directing 
the rate and location of growth (46)." 

There are many problems with the exemptions and limits 
written into the original law. The "grandfather clause" 
could allow an increase of a third in the number of housing 
units in the state without any review, and the highway 
department insists that many new roads fall under the 
provisions of the clause. 

Acreage requirements in Act 250 bear little relation to the 
potential for environmental harm a project may offer. As 
with Montana's subdivision law, there has been a 
proliferation of projects just beyond the acreage limits in 
the act. Signs advertising "lots — 10+ acres" are as common 
in Vermont as in Montana (40). It has been estimated that 
only 20 to 30 percent of all developments comes under Act 
250's purview (46). 

The exemption of all construction for agricultural, logging, 
and forestry purposes on land at elevations of less than 2,500 



—44— 



feet reflects the view that the interests of farmers and timber 
owners coincides with the public interest if the land remains 
in open space. This is not always so. 

The costs of development also have increased as a result of 
the law; some estimate by as much as 10 percent (46). 
Although it is true that the additional requirements 
probably will result in long term savings to the community 
(if not the individual home owner), the greater initial 
development costs tend to favor the big time developer. 

The effects on the availability of housing have been mixed. 
The commissioner of housing admits a minor effect in 
raising the cost of first homes for Vermonters, but also 
points out that it may be helping to increase the supply of 
first homes. He poins to a case where a developer scrapped a 
plan for recreational home development after the district 
commission's hearing and is planning instead a project 
including first as well as second homes (46). 

The Environmental Board has tried to answer the reason- 
able complaints of developers concerning the number of 
permits required by various state and local agencies but the 
board has been only partially successful in reducing the 
number of permits required. All permits issued within the 
Agency of Environmental Conservation have been 
consolidated. 

Enforcement of the law in general and of the conditions 
attached to permits by the commissioners has been 
particularly troublesome. The act provides stiff penalties for 
violations, but the board has had to rely on the efforts of 
officials in other departments within the Agency of Environ- 
mental Conservation for field investigations. Large 
developers tend to comply because local residents are very 
aware of their actions, but many state officials believe that 
many small developments theoretically covered by the act 
occur without review. The act does require that the 
property transfer tax form required to accompany every sale 
of land in the state include a certificate of compliance with 
or exemption from Act 250. This certificate must be signed 
under oath by the seller, and a copy is sent to the Agency of 
Environmental Conservation. 

Lessons 



The Vermont experience underscores the important 
benefits derived from giving local citizens the power to 
review projects: ordinary local citizens, not so-called 
experts, and definitely not experts off in the capital. 
Vermont's existing regional planning commissions were not 
given the review power for the same reason; they had 
become experts (46). The strongest power the district 
commissions have is that of persuasion; this power can best 
be exercised by respected local residents. Vermont has 
been lucky in being able to call upon many of its citizens to 
devote long hours to reviewing plans with only minimal 
compensation. 

Vermonters also have learned that a permit process by itself 
is not enough to guide growth or control the future of their 
state. They have acknowledged the need for a growth policy 
and have completed the first two steps of a process that may 
someday establish clear guidelines for the state's future. 



They also have recognized the need to coordinate land use 
planning with other state activities, particularly taxation. In 
1973 the Vermont legislature enacted a capital gains tax on 
land speculation which has succeeded, in the opinion of 
many, in slowing speculative land sales. House Bill 651 
introduced and killed in the 1973 Montana legislature was 
modeled after the Vermont law. 

But perhaps the most important lesson of the Vermont 
experience is that when conditions are bad enough the 
citizens of a state will sanction what is for them extreme 
measures to rectify the situation. Montana is not yet suffer- 
ing the severe development pressure that Vermont faced in 
the late 1960s, but must we wait until we are before we act? 



FLORIDA 

During the 1960s, 4,500 new residents moved to Florida each 
week. By early 1974 the rate had climbed to almost 6,000 new 
residents a week with some 57,000 acres of land becoming 
urbanized each year to accommodate the influx. In the face 
of such growth many Floridians have become concerned 
that the amenities and the quality of life which make Florida 
a desirable place to live are being lost. 

The cities of Tampa and St. Petersburg waged a slowly 
escalating battle over water for about 40 years until 1971, 
when the worst drought in history struck southern Florida, 
the "most prosperous, the most populous, the fastest 
growing and most glamorous part of the state (48)." Over 
750,000 acres of Big Cyprus Swamp and the Everglades, areas 
hydraulically linked to the aquifers of the most populous 
areas of southern Florida, dried out and caught fire. 

Out of a governor's conference called to consider water 
management in south Florida grew a task force that 
eventually prepared a package of legislation and presented 
it to the 1972 legislature. In April of that year four bills were 
enacted: the Florida Land Conservation Act, the Florida 
Water Resources Act, the Comprehensive Planning Act, and 
the Environmental Land and Water Management Act (Act 
380). The latter is of major concern because it deals directly 
with the regulation of land use. Florida, another state noted 
for its conservatism, thus moved to regulate the use of land 
in a progressive, if not radical manner. Florida had been one 
of the last states to permit counties and cities to zone. 
Twenty-eight of its 67 counties and a third of its 400 munici- 
palities lacked minimum zoning or subdivision regulations 
when Act 380 was passed. However, not all local govern- 
ments waited for state assistance. 

Citizens of Dade County (includes Miami and Miami Beach) 
passed a referendum enabling residents of an area of the 
county to petition the county manager to place a 
moratorium on all building in their area until the capacity of 
public services could be examined. A dozen such 
moratoriums were enacted, affecting areas from 40 acres to 
50 square miles. Addressing the cause of land misuse, the 
citiznes of Boca Raton passed a charter amendment 
providing that no more than 40,000 dwelling units could be 
constructed in the city. 

In addition to the environmental concerns of Floridians 



there were several additional factors that allowed funda- 
mental change to take place. Citizens had lost faith in the 
ability or willingness of local government to carry out their 
wishes concerning community development. A number of 
land use scandals involving local government officials 
received wide attention in the press and on television (48). 
Reapportionment had altered the character of the 
legislature. For the first time there was strong representation 
of urban and suburban interests. Governor Reuben Askew 
introduced Act 380 personally to the legislature as his top 
priority and used his influence throughout the session. 
When the session ended with the bill stalled in the house, he 
extended the session for an additional week to allow 
passage (48). 

Act 380 is modeled after a 1971 draft of the American Law 
Institute's Model Development Code, the first effort to 
review and revise the basis of land use zoning law since 1924. 
In the Florida act, state involvement in land use decision 
making is quite selective and is triggered by a specific type, 
size or location of development. The great majority of land 
use decisions are unaffected by the act. 

The governor's task force had considered many alternative 
methods of land use control before proposing what became 
Act 380. A bill resembling F^awaii's statewide zoning system 
had been introduced in the previous session, but the task 
force decided against the Hawaiian approach for a number 
of policy and practical reasons. The task force felt that land 
regulation should remain as close to those affected as 
possible, that there should be recourse to convenient 
protection from delays and arbitrary action, and that a large 
centralized bureaucracy should be avoided. A state level 
effort centered in the capital city would satisfy none of these 
requirements. 

How It Works 

Under the Florida statute the state is involved only with 
Areas of Critical State Concern and Developments of 
Regional Impact (DRI). An area can be considered for 
designation as an Area of Critical State Concern for any of 
three reasons: 

1. The area contains or has a significant Impact on 
environmental, historical, natural, or archaeo- 
logical resources of regional or statewide 
importance. 

2. The area is significantly affected by, or has a signifi- 
cant effect on, an existing or proposed major 
public facility or other area of major public invest- 
ment. 

3. The area is designated on a state land develop- 
ment plan as possessing major development (such 
as a new town) potential. 

The Division of State Planning identifies the critical areas, 
prepares a report on proposed selections, and recommends 
boundaries and guidelines for development within the 
boundaries. The governor and cabinet review the 
recommendations; if they approve them the local govern- 
ment having jurisdiction over the area involved has six 
months to prepare and implement regulations based on the 



principles. If the local government fails to act the state will 
prepare the regulations and local government can be forced 
to implement them by court order. (It should be noted that 
the Florida cabinet is a unique institution consisting of six 
independently elected state officials. Each has his or her 
own constituency and the governor cannot count on their 
support.) The statute limits the amount of the state that can 
be designated as critical areas to 5 percent or 1 ,670,000 acres 
and further limits to 500,000 acres the amount of land that 
can be designated in any year. 

Developments of Regional Impact are any developments 
which because of character, size, or location have 
substantial effects beyond the boundaries of the county in 
which they are located. Criteria for defining DRIs based on 
county population and the size and projected impact 
(number of dwelling units, acreage, floor space, parking 
spaces) were prepared by the division of state planning and 
a special study committee, and approved by governor, the 
cabinet, and the legislature. The criteria are not all- 
inclusive, however, and a local government may designate a 
development as a DRI even though it does not fit the criteria 
exactly (49). Agricultural use of land, and highways and 
utilities on existing rights-of-way are exempted from all 
provisions of Act 380. 

The DRI process begins when a developer files a permit 
application with a local government and copies are sent to 
the state and the appropriate regional planning agency. The 
regional agency then has 30 days to prepare an environ- 
mental assessment and recommendation which the local 
government must consider before deciding whether to 
deny, approve or conditionally approve the application. 
Three situations can occur: 

1. The development is proposed inan Area of Critical 
State Concern, in which case it is subject to the 
regulations prepared for that area. 

2. The development is proposed in an area with exist- 
ing zoning or subdivision regulations. The regional 
planning agency has 30 days to prepare an environ- 
mental impact review which includes economic 
and social considerations. The local government 
must consider the recommendations of the 
regional agency when it reviews the application. 
The local government can approve, conditionally 
approve, or deny the developer's request. 

3. The development is proposed in an area without 
local controls. The local government then has 90 
days to enact controls, which produces the 
situation described in No. 2 above. If the local 
government takes no action the developer may 
proceed. The developer remains responsible for 
obtaining whatever state permits may be required 
by pollution and dredge-and-fill regulations. 

Decisions regarding DRIs and development in Areas of 
Critical State Concern may be appealed to the governor and 
cabinet sitting as the Florida Land and Water Adjudicatory 
Commission by the property owner, the developer, the 
appropriate regional planning agency, and the division of 
state planning. 



Effects and Problems 

The implementation of Act 380 has been slow to build up 
momentum. The ability of the state planning agency to 
intervene in land use decisions with status equal to the 
developer had some immediate effects. But inadequate 
funding and the pervasive weakness of regional planning 
agencies has resulted in a generally slow beginning. In 
addition there were several stipulations written into the 
statute which guaranteed delay. 

Areas of Critical State Concern could not be designated 
until the voters approved a $200 million bond issue to 
purchase endangered lands, even though the purchase of 
all critical areas was not the intent of the law. In most cases 
reasonable regulation would achieve the desired degree of 
protection. The bond issue passed in November 1972 by a 3 
to 1 majority. 

The act insured at least a year's delay in the DRI process by 
requiring the state definitions of DRIs to be approved by the 
legislature, the governor and the cabinet. Working our 
procedures for intergovernmental cooperation and naming 
the regional agencies to review DRIs added to the delay. Not 
until July 1, 1973, 15 months after Act 380 became law, did 
the DRI process begin to function. 

When Act 380 was enacted there were only two fledgling 
regional planning councils and several loosely organized 
multi-jurisdictional bodies in Florida. Now there are 10 
regional planning districts covering the state, and seven 
organized regional agencies responding to DRI 
applications. The size and capability of the agencies varies 
greatly and the inherent weakness of voluntary associations 
of "sovereign" counties plagues them all (48). 

Lessons 



Again it is much too soon to gauge all the effects of a 
fledgling land use law. Based on the experience of the first 
six months of operation of Act 380's DRI process, observers 
have reported an improvement in the quality of develop- 
ment, an increase in the cost of housing, and no noticeable 
effect on the rate of development. Proponents of subsidized 
housing claim the process has hurt their efforts without 
offering them any help. (Act 380 does not give the state 
authority to override local veto of projects of regional 
benefits, such as subsidized housing.) (48, 50) 

State officials estimate that 10 to 50 percent of all the 
development in Florida comes under the DRI process — 
obviously, more a guess than an estimate (48). As is the case 
with Montana's subdivision regulations, the limited 
coverage of the DRI process has spurred developers to seek 
ways to avoid it. Until the 1974 Florida legislature prevented 
cities from annexing undeveloped areas, developers built in 
areas without local controls or induced receptive cities to 
annex them away from county regulations and thus from the 
DRI process. The DRI size criteria still allow developers to 
reduce the size of project proposals and escape controls. 

Moreover, there are a number of technical problems with 
the law. The most significant is the lack of interim control. 
During the period between the passage of the law and its 



implementation, and now during the period between the 
designation of an Area of Critical State Concern and the 
implementation of the regulations, development activity 
increases to avoid the law (48). 

The law also is limited In Its application because it fails to 
consider three key problems of land use. First, a process 
oriented toward large development is inherently 
unresponsive to the cumulative effects of a number of small 
developments. Several projects under the DRI threshold 
may have a total effect substantially greater than a single 
DRI, yet they fall completely outside the purview of Act 380. 

Second, providing special protection for a few critical areas 
in a large state where much of the area is environmentally 
sensitive is to some degree self-defeating. In Florida it has 
resulted in a great deal of bickering over boundaries of 
critical areas when the real issues are basic state policies 
regarding the use of land. This point may not seem to have 
valid application in Montana, yet the quality and style of life 
currently enjoyed by Montanans is vulnerable throughout 
the state. 

Third, and perhaps most significant. Act 380 created a 
decision making process without defining policies to guide 
the decisions. The law stipulates the factors decision makers 
are to consider, but it does not address how they are to 
weigh them. It does not even make clear how much 
consideration a local government must give to the 
recommendations of the regional agency. Without stated 
policies, Floridians are losing the opportunity to guide their 
future, to try and direct growth to those areas where it is 
needed, and to make Florida into what its citizens would like 
it to be. 

Like Montana, Florida is a large and complex state with a 
strong tradition sanctioning freedom for landowners to 
do what they will with their land with only minimal regard 
for the rights of society at large. Under the Florida system 
local government makes the decisions regarding the 
regulation of land. With Act 380, the state established guide- 
lines that the local government must operate within, and 
provided an appeal process. But to expect land use 
decisions to be made fairly with due consideration, local 
government must have strong administration. The state 
must be willing to lend technical and fiscal support to local 
government. 

The major lesson of the Florida experience is that a land 
regulation process in a policy vacuum is insufficient remedy 
for land use ills of a state. Any serious land use policy must 
consider growth policy. Florida learned this lesson. In 
October 1973 Governor Askew opened a conference on 
growth and the environment. The 1974 legislature enacted a 
broad state growth policy, but did not pass the package of 
legislation implementing the policy (51). Nonetheless, It was 
a beginning. 

Florida also serves as an example of what can be 
accomplished with strong leadership. The passage of Act 380 
is attributed by most observers to the pragmatic and skillful 
efforts of a select group of state senators and the unflagging 
support of the governor. A final lesson is provided by )ay 



Landers, an aid to Governor Askew. "Don't study this thing 
to death ," he says. "The thing to do is to do something. It's a 
big mistake to wait." (48) 

MAINE 

Proposals for four major oil ports and refineries along their 
beautiful coast in one year was the last straw for many 
residents of Maine. While the only real deepwater ports 
along the Atlantic coast of the United States attracted the oil 
men, the hills, the abundance of lakes and streams, the 
predictable snow, long having attracted the tourist, began 
to attract the second home buyer. The new interstate 
highways brought 70 million people within a 24-hour drive 
of Maine's relatively unspoiled and quite lovely landscape. 

Maine's citizens, known for their reverence of unen- 
cumbered property rights, decided they had had enough. In 
1970 and 1971 the Maine legislature passed a package of 
three strong land use laws. A Site Selection Act and a 
Wildlands Act were enacted in 1970 and amended in 1971, 
and a Mandatory Zoning and Subdivision Control for Shore- 
land Areas Act was enacted in 1971. The 1974 legislature 
added a Register of Critical Areas Act to the package. 

Maine towns had consistently resisted land use regulation. 
Only 15 percent of the municipal corporations in the state 
were zoned in 1971 and, of 497 units of local government, 
over 400 had no planning organization (40, 52). The Maine 
Yankee's penchant for local government is indicated by 
noting that Maine, with a population of approximately one 
million, is organized into almost 500 unites of local govern- 
ment in a land are of about 10 million acres. (The state 
includes a little over 21 million acres but 51 percent of the 
state is without local government.) In Montana, a 
population of 700,000 is spread over 93 million acres and 
organized into 182 local government units. 

By mid-1972 only 15 percent of Maine's coastal towns had 
adopted land use ordinances; in 1970 the figure had been 
even lower. Unwilling to act locally but knowing a lack of 
action would bring exploitation, the citizens turned to the 
state government for help. The Site Selection Act, which 
requires developers of all large industrial and commercial 
projects to obtain a permit from the Maine Environmental 
Improvement Commission, was the response. Passage of the 
bill was eased by deletion of a provision which would have 
explicitly included "residential" development, and 
inclusion of a liberal "grandfather clause" and exemptions 
for the powerful forest products and electric power 
industries (40, 52). 

How It Works 

The Site Selection Act is administered by the Department of 
Environmental Protection under the direction of the Board 
of Environmental Protection. The board and department 
also have been assigned the responsibility for the mechanics 
of Maine's anti-pollution laws including water quality 
permits, municipal storm and sanitary sewers approval, air 
quality standards, and permits for dredging, mining and 
development within wetlands. 

The Site Selection Act requires the board to "control the 
location of . . . developments substantially affecting local 



environment in order to insure that such developments will 
be located in a manner which will have a minimal adverse 
impact on the natural environment of their surroundings." 
Developments controlled by the law include: 

any coinmercial or industrial development, 
including subdivisions . . . which require [sic] a 
license from the [Board of Environmental 
Protection], or which occupies a land or water area 
in excess of 20 acres, or which contemplates 
drilling for or excavating natural resources, on land 
or under water, excluding . . . pits of less than 5 
acres, or which occupies on a single parcel a 
structure or structures in excess of a ground area of 
60,000 square feet. 

Early on, the board construed "commercial" development 
to include residential subdivisions larger than 20 acres. The 
board contended that the subdivision of land for the 
purpose of selling lots is obviously a "commercial" activity, 
and that the term "residential" had been dropped from the 
law because it was redundant. The act also has been 
extended to developments of public agencies, and the 
provisions applying the act to any development requiring a 
permit from the board under any law greatly expanded Its 
reach. Additionally, small projects that might create un- 
acceptable environmental impact have been reviewed on 
occasion (52). 

A project under the act requires a special permit, in addition 
to any others required by law, and must satisfy four criteria 
specified in the law: 

1. The developer must have the financial capacity and 
technical ability to meet state air and water 
pollution control standards. He must have made 
adequate provisions to dispose of solid waste, to 
control offensive odors, and to secure and 
maintain a sufficient and healthful water supply. 

2. The developer must have made adequate 
provision for traffice movement out of or into the 
development area. 

3. The developer must have harmoniously fitted the 
development into the existing natural environ- 
ment to prevent adverse effect on existing uses, 
scenic character, natural resources and property 
values in the municipality or in adjoining 
municipalities. 

4. The proposed development must be built on soil 
types suitable to the nature of the project. 

The board may deny, approve, or approve with conditions 
the site choice of a developer. Extensive use has been made 
of the power to attach conditions to permits. Permit applica- 
tions are circulated to all state agencies having useful 
expertise. Although many officials resent the additional 
work load, they appreciate the opportunity to make 
enforceable recommendations. For example, the soil 
conservationists have seen the preservation of topsoll on 
building sites, a long-term goal, made a requirement (40). 



The act has been interpreted to require a hearing by the 
board on a permit denial, but not on an approval. However, 
the board holds hearings on all major and controversial 
permits. The law allows 30 days for appeal of a decision of 
the board to the Supreme Court of Maine. The court's 
review is limited to the record of the hearing and board 
order. In an early case the court affirmed the 
constitutionality of the Site Selection Act. 

The Board of Environmental Protection comprises 10 private 
citizens appointed by the governor with the approval of the 
Executive Council (which may be controlled by the 
opposition party). The members serve three-year terms and 
receive modest per diem and travel expenses. The law 
stipulates that two board members are to be chosen from 
each of the following interest groups: manufacturing, 
conservation, local government, general public, and air 
pollution experts. The commissioner of the Department of 
Environmental Protection, an appointee of the governor, i5 
chairman of the board but votes only in case of a tie. 

The permit process is initiated by the developer when he 
files an application, called a Record of Intent, consisting of a 
25-page form designed to elicit maximum information from 
the developer. The developer is encouraged to meet with 
the staff of the department before filing the application. He 
also is responsible for obtaining the comments of the local 
government. The Department of Environmental Protection 
coordinates the permit clearance and recommendations 
among state agencies. 

The Wildlands Act as amended in 1971 established the Land 
Use Regulation Commission (LURC) to regulate land use 
throughout the approximately 50 percent of the state that 
lacks local government. Rougly 90 percent of this un- 
organized area is privately owned, primarily by large forest 
products companies. 



that government prepares and adopts development 
regulations as restrictive as those of the state. 

The Mandatory Zoning and Subdivision Control for Shore- 
lands Act requires local governments to adopt subdivision 
regulations and zoning controls for areas within 250 feet of 
any navigable waters by July 1974. If a local government fails 
to adopt controls, or if enacted controls are found un- 
acceptable, the Board of Environmental Protection and the 
LURC, after consultation with the State Planning Office, will 
adopt regulations to be enforced by the local government. 

The Register of Critical Areas Act has just gone into effect. It 
initiates a statewide inventory of important scenic, 
scientific, and historic, and critical natural areas. Localities 
must develop plans for the protection of designated areas 
within six months afer listing In the register (54). 



Effects and Problems 

The Site Selection Act clearly established state level control 
over the siting of major industrial and commercial develop- 
ment. Even with an initial staff of two the board quickly 
became known for its effectiveness. In 1971, the retired 
president of the Maine Homebuiiders Association called 
the board the most powerful instrumentality in the state 
(40). 

Surveillance of development activity throughout the state is 
primarily through voluntary compliance and informal 
channels. A local conservationist might call the board when 
a new project appears imminent in his area; the field 
personnel of various state agencies report new activity. The 
board is plagued with permit enforcement problems and a 
system for issuing certificates of compliance to projects 
completed in accordance with the permit terms is being 
considered. 



The commission Is an independent seven-member body 
within the Department of Environmental Protection. The 
law directs the commission to complete a comprehensive 
land use guidance plan, to delineate temporary land use 
guidance districts and adopt interim land use guidance 
standards by January, 1975. There are four types of land use 
guidance districts, or zones: protection, management, 
development and holding. Only harmonious land uses are 
permitted within each district, and specific rules, the land 
use guidance standards, control development in each. The 
act carefully outlines the district delineation process and 
makes quite clear that its purpose is the "preservation of the 
ecological balance" (53). 

All development within the unorganized area of the state, 
excluding commercial forestry and agriculture occurring in 
management districts, requires a permit under the 
Wildlands Act (unless covered by the Site Selection Act). 
Review of permit applications is based on the four criteria of 
the Site Selection Act plus conformance with the land use 
guidance standards for the district. 

The LURC acts as both state and local government for the 
unorganized areas. However, when a local government Is 
formed development is regulated by the commission until 



The decisions of the board have been criticized for 
aggravating Maine's housing shortage and for ignoring 
social and economic considerations. Unfortunately, the Site 
Selection Act does not include social or economic concerns 
in the criteria for considering a permit application. In an 
economically depressed state the lack of concern for social 
and economic considerations may lead to questions of 
whether the board is truly representative. 

Maine natives are being caught between rising land taxes 
and inflated property costs with little opportunity for 
additional income. In the eyes of long-time residents who 
can no longer afford to build houses on the land, mobile 
homes are seen In distinctly different light than they are by 
recent immigrants from New York City. If the board 
continues to exercise its power without achieving a true 
planning perspective In decision maklrig, it may lose Its 
present wide support. 

Probably the greatest single shortcoming of the Site 
Selection Act Is the lack of criteria and performance 
standards against which the long-term and cumulative 
effects of developments can be judged. At some point, for 
some locales the board will have to decide that additional 
industrial or commercial development will not be allowed. 



—49— 



yet this decision will have to be expressed by repeated 
permit denials ratherthan by an open declaration of policy. 

On the other hand, the Wildlands Act links regulation to a 
desired future. Landowners know the range of uses to which 
their land may be put and they have available to them a 
process for altering that range. The problem connected with 
this law pertains to the authority of the Land Use Regulation 
Commission over forest lands in management districts when 
the owners become more interested in recreational 
development than in commercial forestry. 

In general, however, the Board of Environmental Protection 
has centralized and focused state authority, reduced state 
agency competition, and produced a symbol of state 
identity in the area of environmental protection. The 
agency has a significant influence on potential develop- 
ment simply through its existence. 

Lessons 



The highly centralized approach of the Site Selection Act 
seems very appropriate for a small state lacking a 
regionalized population and where a high value is placed on 
the protection of natural resources. Actions of the Board of 
Environmental Protection are closely covered by the news 
media and the average Maine citizen knows that its 
members are the key land use decision makers in the state. 
Of course, the success of the board, like that of all boards 
and commissions,dependson the quality of its members. So 
far the members have taken their responsibility seriously, 
have given thoughtful consideration to staff reports and 
appear to be sensitive to public concern (52). 

But even in Maine the trend is away from decision making at 
the state level and toward increased decision making at the 
local level pursuant to guidelines and standards reviewed or 
prepared by the state. The Mandatory Zoning and 
Subdivision Control for Shoreland Areas Act is an example 
of this trend. 

The Maine experience also demonstrates the limits of a 
purely regulatory approach. The board, acting under the 
Site Selection Act, cannot respond to the need for increased 
job opportunities and adequate housing, nor can it address 
the question of whether an area should continue to grow. 
The Land Use Regulation Commission, operating under the 
Wildlands Act, can respond to all three questions and 
substantially more. 

OREGON 

Well-known for their "visit but don't stay" advertising, 
Oregonians also felt strongly enough about the misuse of 
their state's land to enact a package of innovative and far- 
sighted land use laws. 

In addition to a land use bill, the 1973 Oregon legislature 
enacted legislation protecting farmland from taxation at 
urban or suburban rates; protecting the buyers of 
subdivided land; modernizing subdivision regulations, and 
redefining the role of city and county planning commissions 
and providing for the representation of a variety of interests 
on the commissions. 



The state previously had moved only slightly into the area of 
land use regulation. In 1969 the legislature declared that all 
cities and counties must zone their lands by December 31, 

1971 or the state would step in and zone. However, the law 
did not provide a mechanism for reviewing or coordinating 
plans among localities, or appropriate money to carry out its 
intent. The 1971 legislature set an important precedent for 
direct state involvement in local planning when it 
established the Oregon Coastal Conservation and Develop- 
ment Commission to develop comprehensive plans for the 
coastline. Although the members of the commission are 
primarily coastal dwellers, the commission reports directly 
to the legislature. 

During 1972 the public was made aware of many problems 
resulting from the misuse of Oregon's land. Along a short 
section of coastline the state health department found 34 
sites where raw sewage flowed directly on to ocean 
beaches. A cursory check of subdivision activity east of the 
Cascade Mountains discovered about 160,000 acres of arid 
rangeland and desert subdivided into 43,000 parcels in 
connection with an estimated 1,000 illegal promotional 
schemes. Oregonians also began to fear that the Willamette 
Valley, the heart of the state and home to half Its population, 
was fast becoming a continuous suburban sprawl from 
Portland to Eugene — just like California's Santa Clara and 
San Fernando Valleys (55). 

The governor's fifth Conservation Congress in November of 

1972 was devoted to land use. At the congress pleas were 
made for strong action; State Senator Hector MacPherson 
and a group of citizen volunteers completed preparation of 
what was to become Senate Bill 100, the land use bill. 

After an extremely difficult passage, involving substantial 
revision and compromise, a land use package emerged from 
the legislature and was signed into law. 

How It Works 

The heart of the package. Senate Bill 100, created the 
Department of Land Conservation and Development 
operating under a Land Conservation and Development 
Commission (LCDC). The commission, consisting of seven 
citizens appointed by the governor with the consent of the 
senate, is charged with developing and adopting by January 
1, 1975, goals and guidelines for the use of land in Oregon, 
assuring widespread citizen involvement in all phases of the 
land use decision making process, coordinating state and 
local land use planning, and inventorying land use through- 
out the state to identify areas of critical state concern for 
consideration by the legislature. 

To accomplish the first two charges the commission has 
organized a large, well-planned, and well-financed public 
involvement effort. Initially, 28 public meetings were held 
throughout the state. The results of the meetings were 
analyzed and tentative goals were drafted. Another series of 
meetings took the goals back to the public for comment and 
revision. In addition, a state Citizen Involvement Advisory 
Committee representing a very broad range of interests has 
been established. Public participation at the local level is 
encouraged by requiring counties to submit a citizen 
involvement plan to the LCDC for review. 



-50— 



Commission coordination of state and local planning efforts 
is to be accomplished through two means. Local govern- 
ment units must adopt and submit land use plans to a 
regional coordinating body for review. The regional body 
may consist of the county, a voter-approved regional 
planning agency, an association of counties, or a voluntary 
association of governments. The regional body will review 
the plans for conformity with the statewide goals adopted 
by the LCDC. Any local government not in conformance has 
one year to revise its plan. After one year the LCDC may 
grant an extension of time, if progress is being made, or the 
commission may prepare and administer a plan for that 
iocaltiy until the local government prepares one consistent 
with the statewide goals. The cost to the LCDC of preparing 
a plan for a locality is borne by the local government. 

State agency planning activities and actions that affect land 
use are directed by SB 100 to conform with the statewide 
goals and guidelines adopted by the LCDC, and the 
commission is directed to coordinate state agency planning 
to insure conformance. However, at this time, the 
coordinating role appears to be through permit authority 
for activities of statewide significance rather than direct 
involvement in the planning process of other state agencies. 
The bill authorizes the LCDC to issue and enforce permits 
for designated activities of statewide significance such as the 
planning and siting of public transportation facilities, public 
sewage, solid waste, and water supply facilities, and public 
schools. The commission also may suggest to the legislature 
additional categories of activities that should require 
permits. 

Senate Bill 100 also directs the commission to hear appeals 
by state agencies, regional coordinating bodies, counties, 
cities, special districts, and groups and individuals affected 
by any plan, provision or ordinance which they feel is out of 
conformance with the statewide goals. A city orcounty may 
appeal a decision of the Department of Land Conservation 
and Development to the LCDC. 

Senate Bill 100 also created the joint legislative committee 
on land use, to which the LCDC reports monthly and which 
acts as the commission's liaison with the legislature. The 
joint committee was charged with investigating and 
presenting recommendations to the 1975 legislature for 
methods to compensate landowners adversely affected by 
land use regulation. 

Among the many innovative ideas incorporated into the 
other land use legislation passed by the 1973 Oregon legis- 
lature was a change in taxation of farmland that provides for 
an Exclusive Farm Use (EFLI) zone, automatically assessed at 
its value for farming rather than for any other use. Farms 
outside the EFU zone may apply for a similar tax assessment. 
When land use is changed in areas receiving this special 
assessment, a penalty is paid up to 10 times the previous 
year's taxes, or the difference between what was paid and 
what could have been assessed, depending on whether the 
land is inside or outside of an EFU zone, respectively. 

Senate Bill 487 requires local ordinances and regulations to 
comply with adopted comprehensive plans. House Bill 2548, 
pertaining to county planning commissions, and House Bill 



2965, pertaining to city planning commissions, provide that 
not more than two commissioners may be engaged in the 
buying, selling or developing of real estate or engaged in 
the same kind of profession, business, or trade. Conflict of 
interest standards also are established for the commission 
members. Permits issued by the commissions must comply 
with the adopted comprehensive plan. 

House Bill 2086 permits a local governing body to review 
substantially undeveloped subdivisions or portions of sub- 
divisions which do not conform with current subdivision 
standards. The local governing body may require revision of 
the subdivision plat or it may vacate the plat if it cannot be 
revised to conform with current standards. 

Effects, Problems and Lessons 

Long term effects of Oregon's effort to regulate land use 
cannot be foretold. The legislative battles over the bills and 
the ensuing programs for public involvement have 
produced an unprecedented public awareness of land use 
issues. The hearings held throughout the state by the LCDC 
to formulate statewide goals and the meetings to take the 
draft goals back to the people can only lead to a general 
acceptance of the responsibility and obligation to direct the 
futureof the state through the regulation of the use of land. 
Oregon is perhaps the first state in the nation to establish an 
institutionalized process to define statewide goals and 
guidelines on land use. 

The Oregon experience also demonstrates the need for 
patience. Change requires time and efforts on many fronts, 
and moreover, it requires leadership. In Oregon the passage 
of strong land use legislation required the efforts of several 
senators and the unceasing support of the executive branch 
and Governor Thomas McCall (55). 

In a recent interview. Governor McCall refuted the 
assertion that Oregon's land use laws are part of a no growth 
policy. He called it instead a "wise growth policy," one that 
produces enough jobs to take care of mild in-migration and 
Oregon's own young people. Years earlier he had argued 
that a little belt-tightening then would give Oregon the 
ability to pick and choose in the future — that is, now. 

Now we Oregonians are at the point where we can 
look at some tremendously good firms and maybe 
we can let a limited number into the state . . . We 
are in a position to pick. We can go down to Los 
Angeles and say, 'If you want to become a member 
of our club we'd like to have you, but we don't like 
rattle and bang and smoke and dirt . . .' That's our 
whole philosophy. Instead of panting madly. (55) 



COLORADO 

Many Coloradans are beginning to wonder what has 
happened to the Colorado that attracted them. Since 1950 
the state's population has almost doubled to two and a 
quarter million persons, 80 percent living along the Front 
Range of the Rockies. Almost 90 percent of the Front Range 
is urbanized (56). 



Denver, once a compact, attractive city known for its clean 
air and magnificent view of the mountains, today can be 
easily mistaken for Los Angeles: sprawling for as far as tfie 
eye can see, or lost in a blanket of smog. The future may hold 
an even more ignominious fate for the once fair city — 
being an indistinct blur in the center of a single urban 
megalopolis stretching from Fort Collins in the north to 
Pueblo in the south. 

The Colorado Land Use Commission was established by the 
1970 Colorado legislature to "guide the growth and settle- 
ment of the State and assure the best and wisest use of the 
State's land now and in the future." (56) At the commission's 
request the 1971 legislature increased from seven to nine 
the number of commission members and altered the 
mandate of the commission from the preparation of a state- 
wide zoning map to the preparation of a state planning 
program involving all levels of government. The 
commission also was given temporary emergency power to 
issue cease and desist orders, with the approval of the 
governor, and to stop development activities constituting a 
significant danger to health, safety or welfare. The land use 
planning program report, A Land Use Program for 
Colorado, was delivered at the end of 1973. 

The land use report represents three years of work and more 
than $1.5 million in research. The report identifies four areas 
of issues inseparable from the land use question: environ- 
ment, economics and population, natural resources, and 
social concerns. Based on hearings and meetings with 
interest groups throughout the state the commission 
recommended goals in the four areas and a land use 
program to achieve the goals. 

The commission asserts that there are really five Colorados, 
that is, five distinct regions, often with characteristics and 
problems having more in common with similar regions in 
adjoining states than with the rest of Colorado. The 
commission recommended programs for achieving goals in 
each of the broad areas for each region as well as for the 
state as a whole. 

The report also lays out the legislation, organizational 
mechanisms, and actions needed over a five-year period to 
Institute the land use program. Major premises of the 
programs are that land use decisions should be made at the 
lowest level of government that has the staff and budget 
capacity to carry them out (generally local and regional 
government) and that the program should focus on 
"enhancing the quality of life, not just on restraining the 
quantity of growth." (56) 

The commission called for the establishment of a land use 
agency at the state level responsible for overseeing the 
entire land use program. Specific functions would include 
the designation of critical areas and activities of state 
concern and establishing and enforcing a development 
permit system for both. The state agency also would provide 
technical assistance to regions and local governments and 
set development standards. Within the agency there would 
be a permit review board to hear appeals on decisions 
regarding permits for activities of state concern or develop- 
ments within critical areas. 



Also at the state level there would be established a special 
land agency, constituted as a state-owned public 
corporation, to acquire land for specified public purposes 
including: protection of critical areas, providing 
recreational opportunity, control over highway-related 
commercial development, and public access to existing 
public lands. The agency powers also would be used to 
guide development by assembling areas currently under 
fragmented ownership and selling them to developers after 
attaching covenents sufficient to insure quality develop- 
ment. Such an approach is one of the few constructive 
alternatives available to government when a developer does 
not own the land most suited for his proposed develop- 
ment. 

Within each of the five regions identified by the land use 
commission the report suggests establishing a regional 
planning office staffed by personnel from the state land use 
agency and other state departments. The regional offices 
are to act as communication and coordination channels 
between the state and local governments and to administer 
the development permit system for critical areas and 
activities of state concern. In addition the regions would 
provide technical assistance to local governments, 
coordinate federally required (A-95) project reviews, and 
prepare regional plans in cooperation with the state and 
local governments. 

The recommendations of the commission would leave the 
responsibilities and prerogatives of local government 
largely unaffected; only when development had significant 
regional impact would the traditional authority of local 
governments be disturbed. 

Many of the concepts contained in the report of the 
Colorado Land Use Commission were introduced as bills in 
the 1974 Colorado legislature. Out of legislative 
compromise arose House Bill 1041, weak beyond anything 
imagined by the commission or its staff, but acceptable to 
almost everyone. 

House Bill 1041 declares that "the protection of the utility, 
value, and future of all lands within the state, including the 
public domain as well as privately owned land, is a matter of 
the public interest," and encourages local governments to 
designate and administer critical areas and activities of state 
interest pursuant to guidelines tendered in the act. 

How It Works 

The land use program outlined in the bill is completely 
voluntary. The legislature appropriated slightly over $2 
million for the Department of Local Affairs (includes 
Division of Planning) to be distributed equally among those 
of Colorado's 23 counties that desire to participate in the 
designation program. Of the appropriation , $500,000 is to be 
retained by the department to assist local governments. 

Critical areas may be designated by local governments from 
among mineral resource and natural hazard areas; areas 
containing or having a significant impact on historical, 
natural, or archaeological resources of statewide 
importance; and areas around key facilities when develop- 



—52- 



merit in such areas may affect the facility or the surrounding 
community. 

The definitions of mineral resources and natural hazards are 
quite broad, although the former explicitly excludes goe- 
thermal resources. The administration of natural hazard 
areas is to be consistent with guidelines prepared by state 
agencies having expertise in relevant areas, such as the 
Water Conservation Board, Soil Conservation Board, State 
Forest Service, and the State Geological Survey. 

Historical, natural, and archaeological resources are 
identified and administered by the state historical society or 
department of natural resources acting in conjunction with 
the appropriate local government. 

Key facilities are defined as airports, major facilities of a 
public utility, interchanges of arterial highways, and mass 
transit terminals, stations, and fixed guideways. The law 
outlines in some detail how areas around such facilities are 
to be administered. 

The bill allows local government to designate any of the 
following as activities of state interest: siting of new or 
additional water and sewer facilities, solid waste disposal 
facilities, airports, mass transit systems, highways, and public 
utilities; development of new communities; water projects; 
and nuclear detonations. Criteria for the administration of 
activities of state interest are outlined in the act. 

Local governments are required to report their progress in 
implementing H. B. 1041 to the Land Use Commission six 
months after the passage of the act. The commission is to 
report to the legislature. Local governments also are 
required to submit to the commission, upon designation of 
a critical area or an activity of state interest, copies of the 
designation order and adopted administrative regulations. 
The commission must review the order and regulations and 
may recommend modifications to insure compliance with 
the act and with state guidelines. The local government is 
left the option, however, of complying with the 
recommendations of the commission, or rejecting them. 
Local governments are explicitly allowed by the act to adopt 
regulations morestringentthanthoseoutlined in H.B. 1041. 

The Land Use Commission may request a local government 
to designate an area or activity within its jurisdiction and the 
local government must hold a designation hearing and issue 
a decision. If the local government fails to designate, or after 
designation fails to promulgate regulations, the commission 
may seek judicial review of its original request. 

The act provides interim controls by requiring a moratorium 
on development in a designated critical area or a dis- 
continuance of a designated activity of state interest from 
the time of designation until final adoption of develop- 
ment guidelines. If the Land Use Commission has taken a 
locality to court no development is permitted during the 
time the court is reviewing the case. 

Once a local government has designated critical areas or 
activities of state interest then development within those 
areas or including those activities requires a special permit 



from that local government. A standard permit application 
form is provided by the commission for use throughout the 
state. The local government having jurisdiction over the 
development site is required to hold a hearing (the cost of 
which may be charged to the developer as part of a filing 
fee) and prepare a written decision based on its findings. 
Approval or denial of a permit is based on the local govern- 
ment's regulations, and the decision is subject to judicial 
review under the standards for the review of any other local 
government activity. 

Effects, Problems and Lessons 

House Bill 1041 has not been law long enough for know- 
ledgeable discussion of its effects. The bill is, however, 
vague in numerous areas and leaves much to the inter- 
pretation of the administering agencies and the courts. 

Obvious problems include a lack of standards for judicial 
review, a lack of guidelines for the required cooperation 
between local government and state agencies, and a lack of 
procedure for resolving conflicting decisions by counties on 
projects that cross county lines. 

House Bill 1041 is the watered down version of what was 
once a strong land use bill. However, powerful legislators 
made it clear during the session that this bill offered local 
governments the opportunity to act voluntarily; if they 
failed to take advantage of the opportunity the legislature 
would enact mandatory legislation and give the state a much 
stronger role. 

THE AMERICAN LAW 

INSTITUTE MODEL LAND 

DEVELOPMENT CODE 

History 

The scope and role of land use planning has changed greatly 
since the 1920s, yet the enabling legislation on which land 
use planning and decision making is based has changed 
little. Two model acts, the Standard State Zoning Enabling 
Act (SZEA) and Standard City Planning Enabling Act (SPEA), 
are the basis for zoning and planning enabling legislation in 
most of the 50 states, Montana included. The acts were 
prepared by the U.S. Department of Commerce; SZEA in 
1922, SPEA in 1928 (57). These acts hardly can be applied to 
today's land use issues, let alone tomorrow's. 

Since 1963 the American Law Institute (ALI), a highly 
respected professional organization well-known for legal 
research, model codes, laws and ordinances, and 
continuing legal education, has been preparing a Model 
Land Development Code which it intends to present as an 
alternative to SZEA and SPEA. Successive drafts of the code 
have been reviewed by the full ALI membership and a wide 
spectrum of other interested parties. The first official draft, 
covering six of the proposed 12 articles of the code, was 
approved by the full membership in May. The model code 
attempts to solve the basic weaknesses of SZEA and SPEA 
that have been pointed out repeatedly in major studies 
during the last 10 years. 



Status Quo 

State statutes modeled after SZEA and SPEA authorize local 
government involvement in land use decisions only to 
prohibit undesirable development. The ability to encourage 
desirable development, an essential planning tool, is absent. 
A dominant orientation toward short-term local interest has 
made attack on regional problems very difficult, if not 
impossible, and the lack of a specified procedure for making 
decisions has resulted in administrative processes contrary 
to accepted concepts of fairness and orderly procedure. 
From SZEA and SPEA comes the concept of the static 
comprehensive master plan, a map purporting to represent 
the desired distribution of land uses in an area at some 
future date. Yet neither SZEA nor SPEA attaches any legal 
significance to master plans, so it is unreasonable to expect 
the plans to be successful at guiding land development. In 
any event, the forces of growth, the shifts in the land market, 
the changes in peoples' expectations, and the inability to 
forecast the future with accuracy would seem to doom such 
a rigid approach to failure. 

Premises 

The basic premise of the All model code is that the great 
majority of government decisions regarding land use should 
be made at the local government level, but local 
government needs new machinery to handle today's land 
use issues. The decision making process proposed by the 
code would require explicit analysis and disclosure of social, 
economic and environmental consequences of decisions. 
The code hopes to reduce the impact of politics in decisions 
regarding the use of private land and substitute professional 
analysis based on general standards established by the state 
legislature. Under existing law local government officials 
need not justify their decisions to anyone and are under no 
obligation to explain the basis of their position concerning 
proposed development. 

Moreover, the code asserts that there is a legitimate state 
interest in development that occurs in certain areas and in 
specified types of development that have social, economic, 
and environmental impacts beyond the boundaries of the 
local government. But even in these cases, the local govern- 
ment would retain review and enforcement powers. 
However, the code would require local government to act 
pursuant to state policies, and subject local decisions to 
appeal to a state board. Maintaining review authority at the 
local level, even with regard to the legitimate interests of the 
state, would reduce duplication of permits and hearings and 
would not introduce additional costs and time delays in the 
land development process. 

The code also would recognize and clarify the interests of 
individual citizens, citizen groups, and other units of 
governments in local land use decisions and, very 
significantly, would make state and local government 
development projects subject to the same regulations as 
private developments. 

The most pervasive feature of the code is its insistence on 
administrative and adjudicatory uniformity. Regardless of 
the policy chosen by local government, under the code all 
action would be in accordance with a statutory process 



identical, within a narrow range, to the process used by all 
other local governments within the state. 

HOW IT WORKS 

Local general purpose governments could choose to adopt 
a land development ordinance as modeled in the code and 
designate a Land Development Agency (LDA) under the 
ordinance. The land development ordinance would 
consolidate and reorganize the administration of zoning 
and subdivision law and the land development agency 
would replace planning boards, zoning boards of appeal 
and other similar functions. The local governing body 
would designate itself, or any committee, commission, 
board or officer of the local government as the LDA, but the 
agency would have to have final authority and responsi- 
bility for any decisions made within its jurisdiction under the 
land development ordinance. Part of the intent of the code 
is to reduce the numberof agencies from which a developer 
would have to receive permission to proceed. 

Although the code would leave to local discretion the 
organization of the LDA, it stipulates in great detail the 
disclosure and hearing procedures to be followed by the 
agency. Within the hearing and disclosure requirements lie 
the protections offered the developer and the general 
public from arbitrary and purely political decision making. 

The local governing body also could designate any agency, 
committee, commission, department, or person to prepare 
a local land development plan, and under the code such a 
plan would be adopted by the local government and vested 
with legal significance. Plans would have to be based on a 
number of studies specified in the code and include an 
analysis of the probable economic and social conse- 
quences of adoption. The long range plan would have to be 
revised every five years, and include a short-term program 
of specific actions to achieve some facet of the long-range 
plan. 

Adopted local land development plans would have to be 
submitted to the state for review and comment and checked 
for consistency with the state land development plan if 
there were one. To induce local governments to prepare 
and adopt plans the code would reserve to those govern- 
ments with adopted plans certain additional powers that 
would allow the local government wider flexibility in 
responding to and guiding development. 

The code also would restructure the ability of local govern- 
ment to acquire and dispose of land in the furtherance of 
the development objectives of the community. One 
objective would be to assist large scale developers in 
amassing land for their projects. Land could be acquired by 
a variety of means including purchase, gift, interagency 
transfer, exchange, and eminent domain but most of this 
section of the code is devoted to procedures for disposing 
of land. Most existing law is very weak in this area. The code 
provides for flexible disposal to insure that the land would 
be used for the intended purpose while providing 
protection for the public interest. 

At the state level the code proposes a State Land Planning 



—54- 



Agency (SLPA) as part of a broad state planning agency in 
the governor's office. Although the code does not 
encompass social and economic planning, the drafters 
assumed that there exist state social and economic planning 
functions that could be combined with land planning in a 
single agency. 

The SLPA would be directed to assist local governments, 
perform an informational role by preparing and distribut- 
ing a weekly monitor of development activity in the state, 
appoint local land development agencies in specified 
circumstances when a local government fails to, maintain a 
register of permits required by land developers and, upon 
the request of a developer, organize and preside over multi- 
permit hearings. A multi-permit hearing would enable a 
developer to respond to all permit granting agencies at a 
single hearing. 

The SLPA could prepare a state land development plan for 
all or part of the state. Such a plan would have to consider 
adopted local land development plans and the plans of 
other state agencies. The code specifically states that local 
governments having a plan would be encouraged by the 
state plan to pursue their development policies to the 
maximum extent feasible consistent with the general 
welfare of the people of the state. Like the local plan, the 
state land development would have to include a short-term 
program to achieve some facet of the long-range plan. If the 
program were not implemented the plan would become 
void. 

To obtain legal significance the state plan would have to be 
adopted formally. The code suggests several alternatives: 1) 
approval by the governor and transmittal by him to the legis- 
lature with automatic enactment after failure of either 
house to pass a resolution of disapproval within a specified 
time period, 2) by the governor using his executive power, 
and 3) by the legislature in accordance with the procedures 
for the enactment of general legislation. 

The code also identifies two categories of development, 
areas of critical state concern and developments of regional 
impact, where state and local conflict would likely occur 
over land use policy and proposes a procedure for conflict 
resolution on a case-by-case basis. When reviewing 
developments of regional impact or any development 
proposed in a designated area of critical state concern the 
local development agency would have to rule pursuant to 
state standards and guidelines. 

Areas of Critical State Concern (ACSC) would be defined 
based on the characteristics of spatially delineated areas. 
The state land planning agency would designate ACSCs by 
rule after holding a hearing and publishing the reasons for 
designation, the dangers and loss if not designated, the 
advantages of designation, and general guidelines for 
development of the area. An Area of Critical State Concern 
could be designated only for four types of areas: 

1. Areas significantly affected by, or having a 
significant effect upon, an existing or proposed 
major public facility or other area of major public 
investment. 



2. Areas containing or having significant impact upon 
historical, natural or environmental resources of 
regional or statewide importance. 

3. A proposed site of a new community designated in 
a state land development plan, together with a 
reasonable amount of surrounding land. 

4. Any land not covered by a development ordinance 
within a specified number of years after the 
effective date of the code. 

After designation, the local land development agency, or 
agencies, having jurisdiction over the area would be given a 
specified time to prepare and adopt regulations for the 
ACSC. The state land planning agency would review the 
regulations for compliance with the state guidelines. If the 
local regulations were found to be inadequate or were not 
prepared, the state agency would prepare and adopt them 
until adequate local regulations were adopted. However, 
even in this instance the initial decision on a development 
permit still would be made by the local land development 
agency. 

The code provides for interim controls for Areas of Critical 
State Concern from initial notice of intent to designate, to 
the time of adoption of regulations. It also provides for the 
failure of a local governing body to adopt a land develop- 
ment ordinance or appoint a land development agency. 

Developments of Regional Impact (DRI) would be defined 
by type or size of development based on the impact such 
development would have on its surroundings regardless of 
its location. The definition of a DRI, however, could vary 
among areas of the state to reflect local differences. 

The state planning agency would designate categories of 
development as developments of regional impact based on 
consideration of air, water and noise pollution, traffic 
generation, forecasted population change, size of site, 
associated development and so on. The code attempts to 
insure that the DRI process would be limited to appropriate 
type and size developments to avoid developments of 
purely local impact. Categories of DRIs also would include a 
designation of development of regional benefit, available 
upon the request of any developer upon meeting criteria 
stipulated in the code. Developments of regional benefit 
would include projects of governmental, educational and 
charitable institutions, public utilities and housing develop- 
ments for persons of low or moderate income. 

When considering a proposed DRI the local land develop- 
ment agency would base its review on the standards of its 
own local development ordinance applied to the region 
affected by the DRI and would have to balance detriments 
against benefits in a manner stipulated in the code. The state 
land planning agency could submit a report presenting the 
state's position on any DRI, and would have to submit such a 
report when requested by a local land development agency. 
The local land development agency would have to set forth 
in writing its findings and decision regarding each DRI. 

The code also proposes a state land adjudicatory board to 
hear appeals of the decisions of local land development 



agencies. The board would be entirely separate from state 
planning and would comprise five members appointed by 
the governor or by the state's highest court. Standing to 
appeal would be granted all those who could appeal in 
court and the code provides for the delay of judicial 
proceedings until action could be taken by the board. The 
board would accept primarily written submissions and 
perform a purely appellate function. If additional evidence 
were needed the board would remand the question to the 
local land development agency. It is not intended that the 
board develop the administrative machinery needed to 
hold hearings and take evidence. The board would have to 
present its findings and decision in writing. 

The state land planning agency could establish divisions of 
itself as regional planning agencies throughout the state. 
The agency would have to respond to the request of a 
number of local governments or the petition of a stipulated 
percentage of the included population to create a regional 
planning agency or change the boundary of an existing 
region. The drafters of the code feel that the present system 
of voluntary regions or councils of government is in- 
herently ineffective (58, 59). 

A regional division of the state planning agency would act as 
a communication channel between the local and state 
government, provide assistance to local government, could 
prepare regional land development plans, and could 
exercise all the other powers of the state planning agency. 

Under the code long-range state planning would be carried 
on by a planning institute associated with the state univer- 
sity or organized as an independent entity within the state 
planning agency. Long-range planning would be isolated 
from immediate pressures and crisis intervention. 

The code also has statutory language providing for 
procedures to enforce land development regulations, for 
public records of the regulations and for judicial review of 
orders, rules and ordinances. In addition the code proposes 
model legislation for establishing a state land bank. Land 
banking is a system by which a government entity acquires 
land to control an area's future growth. 



COMMENTS ON THE CODE 

During the more than 11 years of work on the code, five 
tentative drafts have been released for review and 
comment. Included in each draft has been a commentary by 
the writers explaining the choices they made and discuss- 
ing alternatives. Much of the criticism of the code has 
concerned its scope. Questioning has led to changes in the 
code. However, some questions have endured through all 
the drafts and are included in the commentary on the 
official draft. 



board insure an adequate record on which to decide if state- 
wide concerns justify overriding local interests. On the 
other hand, the system insures that those wishing to over- 
ride local decision makers must demonstrate that a 
compelling state interest is at stake. 

Local people have obvious advantages in making land use 
decisions based on their familiarity with the land and the 
conditions of the community. The drafters also argue that 
establishing state machinery to hold hearings and make 
initial decisions would be costly, duplicative and unlikely to 
account for suble local problems (Past practices of highway 
location are said to be an example of a state level action that 
has lacked local approval and participation and has resulted 
in unfortunate alignments and unnecessary intergovern- 
mental friction.) Parallel administrative systems could 
encourage the filing of development applications with the 
agency most likely to give a favorable result, or lead to 
confusion in project jurisdiction. 

Reviewers of the land development code also ask whether 
the preparation and adoption of a plan should be 
mandatory. The code leaves the plan to the discretion of 
both the local and state governments, and tries to induce 
local governments to prepare plans by granting additional 
powers to those who do so. However, many reviewers think 
the inducements are inadequate and present several argu- 
ments to support their contention: 1. Local governments 
preferring unencumbered power to bargain with 
developers would be frightened by the idea of a plan and 
the limit it might impose on their discretion; 2. The powers 
that would be denied to non-planning governments are 
precisely those all governments should be encouraged to 
exercise (59, 60, 61). Another incentive could be the 
granting of the complete range of powers to all 
governments with the stipulation that actions of planning 
governments would be presumed constitutional by courts 
until proved arbitrary, while non-planning governments 
would have to prove reasonableness (60). 

Others who favor mandatory planning have argued that 
land resource values are particularly vulnerable in areas 
where current residents are not yet conscious of the dis- 
advantages of suburban sprawl or second home develop- 
ment and so will not see the need for land use regulations 
until the damage is done. 

The drafters acknowledge these arguments and counter 
with several of their own. If the code and law based on the 
code were to state that local governments "shall" prepare 
and adopt plans, local governments that failed to plan could 
be taken to court. The drafters contend that it is difficult to 
imagine a court directing a board of county commissioners 
to prepare a plan. 



Many reviewers who see a need for a strong state role in 
land use decisions have questioned the likelihood that local 
people responsible to local government will administer 
state policy without an unacceptable local bias. The drafters 
respond that tight procedural requirements, the require- 
ment for written findings and a decision after a formal 
hearing, and the availability of an appeal to a state level 



The drafters also argue that for many small jurisdictions it is 
impossible to find and employ competent planners, and 
that in static or declining areas mandatory planning would 
simply be make-work. Regarding land resource values, the 
code establishes procedures allowing the state to exercise 
regulatory authority over areas and categories of develop- 
ment that present current problems. Otherwise, it isargued. 



—56— 



the state should not casually interfere with the prerogatives government level; and by acknowledging a state interest in 

of local government. certain land use decisions and establishing a procedure for 

state intervention in those decisions. 

Conclusion 

The American Law Institute's Model Land Development It should be noted that Florida's Environmental Land and 

Code proposes that each state establish a new framework Water Management Act (discussed above) implements in a 

for making land use decisions by consolidating zoning and slightly modified form the parts of the code dealing with 

subdivision law, and requiring administrative and Areas of Critical State Concern and Developments of 

adjudicatory uniformity and accountability at the local Regional Impact. 



///. A LAND USE POLICY FOR 
MONTANA'S FUTURE 



ACCOMMODATING 
CHANGE WHILE 
PRESERVING OUR VALUES 

Strong state and national pressures will force Montana to 
change. Growth is but one wave of an inevitable storm of 
changes that will buffet Montana in the course of evolving 
times, fashion and human affairs. The question is not "shall" 
we grow, but "how." In the minds of many, the "how" — 
the quality and opportunities of the future — will be 
determined in great measure by the uses to which we put 
our land; by the type and arrangement of man's activities 
over the face of the state. 

Today, decisions significantly influencing the use of land in 
Montana are made in a fragmented, uncoordinated manner 
by 182 local governments, 19 state departments and assorted 
independent agencies, at least 18 federal agencies, seven 
Indian reservations and by about 700,000 residents and an 
undetermined number of non-residents. The system 
guiding these decisions is the same system that gave Los 
Angeles to California and Denver to Colorado. If history is 
any guide to the future, it is unlikely that this system will 
treat Montana much better. Are the specters of the past part 
of the future Montanans want for themselves and their 
children? The available evidence seems to indicate they are 
not. 

A change in the land use decision making process clearly is 
called for, but the direction of that change is the subject of 
heated debate and controversy. There is, however, no 
debate over where the responsibility for change lies; it lies 
with state government. The power to regulate the use of 
land was not included among those powers constitutionally 
granted to the national government by the 10th 
Amendment, and thus is presumed to be a power reserved 
to the states. Most states have allowed this power to lie idle 
or have delegated it to local government. During the last 
five years, however, there has been a growing movement 
among states to recapture and exercise the power to 
regulate land use. 

Local government has proved to be too easily dominated by 



special interests and too dependent on local taxes to 
consider the long-term and wide-ranging effects of land use 
decisions. What increases the tax base today is all too often 
desired regardless of the price that might have to be paid 
tomorrow. In addition, the ability of local governments to 
make decisions affecting significantly the lives of persons 
living outside their jurisdictions defies a basic tenet of our 
form of government. Representative democracy requires 
that officials govern only those that they represent. 

The time has come for Montana to put its house in order, to 
lend rationality and accountability to its land use decision 
making processes. Montanans must prepare themselves to 
accommodate and guide growth and change while 
preserving the economic base that will sustain the state over 
the long term and preservethe values which make Montana 
the unique and desirable place it is. 

THE LEGAL BASIS 
FOR STATE ACTION 

The authority of government to regulate the use of land 
legally derives from the inherent police power of govern- 
ment — its authority to exercise reasonable control over 
persons and property in the interest of public security, 
health, safety, morals and welfare. Although the American 
ethos of land ownership holds that society will be served 
best if landowners have unbridled freedom to do as they 
please with the land, our law has long recognized that land- 
owners' rights are subject to limitation through the police 
power. 

As early as 1631 the colonists had enacted laws regulating 
the use of land. Overzealous planting of valuable and 
exportable crops, such as tobacco, was occurring at the 
expense of the community's food supply. In 1631 the 
Virginia House of Burgesses passed an act requiring each 
white adult male to grow two acres of corn, or forfeit an 
entire tobacco crop as penalty. In 1692 Boston enacted an 
ordinance similar to a present day zoning ordinance 
confining the location of slaughter houses, stills and other 
odoriferous uses to areas where they would least offend 
local citizens (62). 



The exercise of the police power is limited by provisions of 
both the Montana and U.S. Constitutions. Article II, Sec. 17 
of the Montana Constitution declares that "No person shall 
be deprived of life, liberty, or property without due process 
of law." Similarly, the 14th Amendment to the U.S. 
Constitution declares that "No state shall . . . deprive any 
person of life, liberty, or property, without due process of 
law; nor deny to any person within its jurisdiction theequal 
protection of the laws." Moreover, the U.S. Supreme Court 
has held that the wording of the 14th Amendment makes 
the "compensation clause" of the 5th Amendment 
applicable to the states. The compensation clause declares 
that private property must not "be taken for public use 
without just compensation." 

Because of the limitations on its use, the police power is now 
commonly defined as the inherent power of government to 
regulate human conduct, without a taking of property, in 
order to protect health, safety, morals, or the general 
welfare. An early decision of the Montana Supreme Court 
supplies an excellent discussion of the police power: 

The police power is broad and comprehensive, and 
is exercised to promote the health, comfort, safety 
and welfare of society . . . Under it the conduct of 
an individual and the use of property may be 
regulated so as to interfere to some extent with the 
freedom of the one and the enjoyment of the 
other. All property is held under the general police 
power of the state to so regulate and control its use 
in a proper case as to secure the general safety and 
the public welfare f Oty of Helena v. Kent, 32 Mont. 
279, 80 P. 258 (1905). 

Laws enacted or actions taken in the exercise of the police 
power also must be reasonable, not arbitrary, and must be 
beneficial to the community as a whole. Many court actions 
challenging police power regulation of land hinge on the 
meaning of "reasonable" and on the question of what 
constitutes a taking of land. 

The Montana Supreme Court has addressed these issues 
and provided some guidelinesforjudicial resolution of such 
actions: 

In gauging the reasonableness of the statute in 
question, we must not look back solely to past 
precedents, but must also look ahead. In short, the 
police power as such is not confined within the 
narrow circumspection of precedents, resting 
upon past conditions which do not cover and 
control present day conditions obviously calling 
for revised regulations to promote the health, 
safety, morals, or general welfare of the public; 
that is to say, as a commonwealth develops 
politically, economically, and socially, the police 
power likewise develops, within reason, to meet 
the changed and changing conditions. What was at 
one time regarded as an improper exercise of the 
police power may now, because of changed living 
conditions, be recognized as a legitimate exercise 
of that power (Bi///ngs Properties, Inc. v. 
Yellowstone County, 144 Mont. 25, 394 P. 2d. 182 
(1%4). 



In the case cited immediately above, the court held that the 
statutory requirement for park dedication prior to sub- 
division plat approval (Sec. 11-602, R.C.M., 1947) was 
constitutional. The plaintiff had argued that this require- 
ment was really an unconstitutional exercise of the power of 
eminent domain without compensation rather than an 
exercise of the police power. The court explained that if a 
subdivision creates a specific public need for parks and play- 
grounds it is not unreasonable to place on the subdivider 
the burden of providing them. 

The question of when regulation of private property 
becomes a "taking" that requires compensation is a 
continuing legal debate. The arguments are presented in 
judicial opinions, in law review articles and in studies such as 
The Taking Issue: An Analysis of the Constitutional Limits of 
Land Use Control {62). For most of this century the criterion 
used in resolving this question was one of balancing the 
public purpose served against the reduction in value of the 
land regulated, provided that the land was not rendered 
worthless. 

The legal definitions of "reasonable" and of "taking" 
change with society's changing needs and wants. The 
authors of The Taking Issue analyzed federal Appellate 
Court decisions in which the taking issue was discussed and 
were able to see evidence that a "quiet revolution in judicial 
attitudes" concerning the right of government to regulate 
land use had occurred after 1970. The change in judicial 
awareness certainly was not spontaneous — 1970 also 
marked significant changes in social and political aware- 
ness of environmental concerns. 

During the last 50 years, the Montana legislature has 
enacted measures designed to regulate the use of land to 
benefit the public health and welfare. Recent examples are 
the Montana Subdivision and Platting Act; the act providing 
for the review of sanitation and water supply in sub- 
divisions; and the act providing for the regulation of land in 
the floodplains of rivers. (These laws are discussed in the 
state agency review earlier in this study.) 

The authority of government to regulate land use has been 
tested in the Montana courts in cases centered on the 
delegation of zoning powers to local governments. In one 
of the earliest zoning cases, the court found that the 
authority of incorporated cities to enact zoning ordinances, 
so long as the ordinances have a "real and substantial 
bearing upon the public health, safety, morals, and general 
welfare of the community," is constitutional {Freeman v. 
Board of Adjustment, 97 Mont. 342, 34 P. 2d. 534 (1934) ), 

During the 1960s two additional Supreme Court cases 
addressed theconstitutionality of Montana 'szoning laws. In 
the first case the court held that, while zoning itself was a 
legitimate exercise of the police power, the manner in 
which this power had been delegated to counties was un- 
constitutional. The court said too much discretion had been 
granted to planning boards, and legislative power had been 
unconstitutionally delegated to counties {Plalh v. Hi-Ball 
Contractors, 139 Mont. 263, 362 P. 2d. 1021 (1961). The law 
was repealed and replaced. The 1972 Constitution now 
allows granting of legislative powers to counties). In a 



companion case, the court held that the grant of zoning 
power to counties made under a different law was 
constitutional in that the law set out guidelines sufficient to 
insure that county commissioners were acting in an 
administrative rather than legislative capacity {City of 
Missoula V. Missoula County. 139 Mont. 256, 362 P. 2d. 539 
(1961) ). 

The Montana Supreme Court has found that the state has 
the authority to regulate the use of land for certain purposes 
and that the scope of those purposes necessarily changes 
over time. So in these times of increased awareness and 
concern over the impact of land use decisions on the public 
health and welfare, it seems evident that the court would 
find properly executed state action to regulate the use of 
land both reasonable and permissible. 

The Growth Question 

Inevitably linked to any discussion of land use is the 
question of growth, for feeding growth always has required 
large scale changes in the use and ownership of land. A 
thorough discussion of growth and Montana's future is 
beyond the scope of this work (later the study recommends 
that a commission be established to study the topic), but a 
discussion of land use would be incomplete without explor- 
ing the basic positions and arguments that surround the 
growth issue. 

Growth, change and novelty long have been viewed by 
Americans with fascination and hope. Change meant more 
of everything for everyone. But times have changed, and so 
have some old assumptions. Certainly, there are many 
Montanans who no longer believe that more is always better 
and that growth is a panacea for economic and social ills. 

The argument over growth Is bounded on two extremes: by 
those favoring the maximum exploitation of the state's 
resources at the quickest possible rate, and by those favor- 
ing a return to prehistoric conditions, or at least to the good 
old days. Unfortunately, the good old days are much better 
in retrospect than they were in reality. Obviously, neither 
extreme would be acceptable to the great majority of 
Montanans, nor is either likely to occur. 

Realistic bounds on the state's options are illuminated by 
the contrasting arguments on the role of the market in land 
use decisions. Some believe that the market provides the 
best regulation of land use because the "highest and best 
use" of land is defined as the use for which someone is 
willing to pay the most money. Others argue that the market 
does not and cannot work in the real world as it does in 
theory and that, in any event, the market, as presently 
constituted, is incapable of considering costs to future 
generations, degradation of environmental health and 
intangible and subtle social effects. 

Accepted economic theory says that a competitive market 
must satisfy two primary conditions to operate efficiently. 
The first condition requires that there be sufficient buyers 
and sellers so that no one individual can cause a change in 
prices by increasing or decreasing the supply of a 



commodity. The second requires that ail buyers and sellers 
have complete knowledge of the quality and prices of avail- 
able goods and services. Rarely is either condition satisfied 
in any market. The land market is no exception. 

Parcels of land in a given geographical area are unique with 
respect to a number of variables: water availability, soil type, 
scenic quality, distance to market and jobs, vegetation, 
neighborhood attractiveness, and so on. This uniqueness, or 
lack of substitutability among parcels, limits the availability 
of each particular kind of land. 

Land buyers also are unique. Each has different preferences 
with respect to the characteristics of land. Since there may 
be only a handful of parcels meeting a buyer's needs avail- 
able at a particular time, sellers often may be able to deter- 
mine local land values. A market characterized by a lack of 
substitutability among products, few sellers, and many 
buyers is not competitive. 

It is also practically impossible for land buyers to have 
complete knowledge of the quality and price of all land on 
the local market. Many landowners may not list their 
property for sale among real estate agencies although they 
might sell if asked. Agencies may not know about or choose 
to deal in certain kinds of land even though a likely buyer is 
at hand. In other words, competition suffers when buyers 
and sellers cannot communicate. 

In addition, the value of a parcel of land is linked closely to 
the use and value of surrounding land. Likewise, the value of 
the surrounding land is dependent on the use and value of 
that parcel. This interdependency of land values interferes 
with the ability of a competitive market to assign prices 
efficiently. The proper functioning of markets requires that 
the value of a person's property be neither benefitted nor 
decreased by the economic decisions of others. We are all 
well aware that this is not the case with regard to land. 

One landowner's decision to subdivide and develop a 
trailer court, for example, affects the market value of his 
neighbor's property. A homeowner's decision to make a 
duplex out of his house and rent apartments may lower the 
value of his neighbor's property. These uncompensated 
damages, or in some cases benefits, are known as 
externalities. Externalities are the effects of a decision which 
are not included in calculating the costs or benefits of that 
decision. 

Market decisions are motivated by individual self-interest 
and the desire to maximize profit. This can easily exclude 
consideration of long-term public interest, irreversible 
commitment of land may involve substantial future costs to 
society. The subdivision of prime farm and ranch land is but 
one example. Such division is rarely reversed and then only 
at great cost. Who will pay if today's decisions are wrong? 
Today's market does not represent future generations, even 
though they must pay the price of today's mistakes. 

Those who argue against the market's ability to allocate land 
also contend that the use of land must be perceived in 
relation to biological processes and a humble philosophic 
conception of man's place in the universe. Only if the 



—61 — 



world's natural processes continue to function In health and 
diversity will human society continue to develop. Hence, 
the slow- and no-growth advocates are attempting to 
protect complex processes they see as vital to the survival of 
civilization. 



Another aspect of the growth issue characterized by sharply 
contrasting positions concerns the question of jobs, job 
diversity and the migration of the state's youth. 



One side argues that Montana needs growth to provide 
more employment or more secure employment. During the 
1950s and 1960s increases in jobs lagged behind growth in 
Montana's labor force. Many Montanans had to leave the 
state to seek opportunity and a livelihood. Even though jobs 
are being created more rapidly today than in the previous 
two decades, the state unemployment rate remains above 
the national average and the job market lacks diversity. The 
necessary diversity can come only if Montana eases its 
historical dependence on mining, agriculture, forestry and 
tourism. Of course these basic industries are crucial to 
Montana's future, but to satisfy an increasingly urban 
population wider occupational choice is needed. 



Others who think about jobs and diversity wonder what toll 
a policy of headlong expansion of occupational choice 
would extract from the Montana way of life. Often cited is 
the facetious comment of a Colstrip rancher who pointed 
out that he did not feel compelled to create social problems 
in Rosebud County to provide employment for his son, a 
recently graduated sociologist (63). It is possible to have 
growth in limited areas of the economy; growth in service 
jobs, in jobs that require inventiveness and creativity and 
growth in jobs that consume a minimum of energy, natural 
resources and land. 



Also questioned are the reasons cited for migration of the 
state's youth. There have been few studies of this question 
and the most recent declares that: 



For the young, migration is seen as an expression of 
freedom and an opportunity to experience and 
consider life style alternatives . . . Therefore, it may 
be unrealistic to assume that local employment 
opportunities or other attractions will induce 
young people to remain near home. It is apparent 
in Upper Midwest communities that expanding 
employment opportunities tend to attract new 
people, rather than keep the young at home (64). 



The following sections of the study outline and recommend 
a land use policy and a land use decision making process for 
Montana. But a land use policy is only one tool of a growth 
policy. Somewhere between the extremes, the citizens of 
Montana must isolate a growth policy that will provide long 
term goals and priorities for government decision makers, 
including those who will be making decisions about the use 
of land. 



A PROGRAM AND A 
POLICY FOR MONTANA 

Something must be done if Montana is not to become 
another "Anyplace, U.S.A." State government has the 
authority and, many would argue, the responsibility to take 
action. But what should the role of state government be? 

Earlier, this study discusses the efforts of other states to 
restructure their land use decision making processes. There 
is much to learn from such examples, but each state Is 
unique and each must chart its own course. What is 
desirable in Georgia may be ridiculous in Nebraska, and 
what is radical and controversial in California may be old hat 
in Wyoming. 

The Montana legislature has found that there are specific 
categories of resource systems and development impacts 
that are so wide ranging or of such importance that they 
must be regulated at the state level. Certainly the legis- 
lature will and must continue to identify similarsystemsand 
act to protect the public welfare. However, the traditions of 
this state and many theories of governmental structure do 
not favor an ever increasing state role in decision making. 

For example, a system of statewide zoning (as done in 
Hawaii) has been mentioned from time to time asa solution 
to the land use problems of Montana. Such a suggestion 
ignores the vast cultural and traditional differences between 
the two states as well as the sheer difference in size. The 
practical problems of such a scheme are overwhelming. 

How many man-hours would it require for an agency in 
Helena to develop what is essentially a zoning map for every 
county in the state, and then resolve all the disputes that are 
sure to arise over boundary line changes and other 
decisions? What public relations problems will result when a 
citizen of Baker realizes he must come to Helena for a 
seemingly minor decision? 

Moreover, the Environmental Quality Council thinks it is 
undesirable to centralize all land use control at the state 
level. It finds that such a scheme would contradict 
Montana's strong local government tradition. 



Assumptions 

Three fundamental assumptions, therefore, underlie the 
recommendations presented in this study: 

1. Governing should be done by that level of govern- 
ment which is the closest to the people yet capable 
of performing the desired function. In Montana, 
for most landuse issues, local government can 
meet this requirement. 

2. There are land use issues in which the people of the 
state in general have sufficient interest to override 
occasionally the narrow interests of a locality. 

3. Actions of government agencies should be subject 
to the same scrutiny and regulation as the actions 
of private individuals and organizations. 



—62— 



Adhering to these assumptions, a system of land use 
decision making is proposed which would allow Montanans 
to take control of their future without unnecessarily 
disrupting the traditions of the state or interfering with the 
legitimate expectations of its citizens. 

Based on the three assumptions, the state would be free to 
work in eight land use decision making areas: 

1. Decisions affecting or affected by past or projected 
major public facilities or other projects represent- 
ing a major public investment. 

2. Decisions concerning areas containing or having a 
significant impact upon historical, natural, or 
environmental resources of regional or statewide 
importance. 

3. Decisions concerning areas that embody a 
significant natural hazard. 

4. Decisions concerning areas proposed as sites for 
new towns. 

5. Decisions which have significant impacts beyond 
the jurisdictional boundaries of a local govern- 
ment. 

6. Coordination of all levels of government including 
state agency actions. 

7. Creation of an arena for resolving conflicts arising 
in the first six areas. 

8. The formulation and articulation of growth and 
development policies. 

Consolidating the allowable areas of state intervention into 
administrative functions yields four activities in which the 
state should have at least a supervisory and sometimes a 
dominant role: 

1. The designation and regulation of areas of state 
concern. 

2. The designation and regulation of developments 
of greater than local impact. 

3. The provision of an appeals procedure and a 
Montana Land Use Commission to resolve conflicts 
and insure that statewide interests are considered 
by local decision makers and that local interests are 
considered by state decision makers. 

4. The creation of a continuous statewide goals 
formulation process. 



government and a wide spectrum of private interest groups 
in a comprehensive effort to construct goals. State govern- 
ment is the logical leader of such a program. 

The Environmental Quality Council recommends that 
legislation be enacted to implement these functions. 



Areas of State Concern 



Areas of State Concern (ASC) are defined as localities or 
resource systems whose uncontrolled development would 
result in irreversible loss or damage to a significant resource 
of a region or of the state as a whole. Included are: 

• Areas affected by or affecting substantial public 
Investments such as educational, medical and 
penal institutions; convention, civic and sports 
complexes; state-owned game ranges, and major 
airports. 

• Areas including or having significant impact on 
historical, aesthetic, natural or environmental 
resources such as proven mineral reserves, 
significant agricultural, grazing, and timber lands, 
shorelines, and essential ecological systems. 

• Areas where development probably would 
endanger life and property because of natural or 
man-made hazards such as active fault zones, land- 
slide and avalanche pathways, fire-proneareasand 
airport approach zones. 

• Areas proposed by the state in conjunction with 
the federal government or private interests as sites 
for new town development. 

Once categories of areas of state concern are established, it 
is necessary to decide who may suggest areas for 
designation and who will designate. There are several 
options in both cases. 

DESIGNATION 

Areas of State Concern could be suggested for designation 
by anyone: groups of citizens, local governments, state 
agencies. In the inerest of increasing public participation in 
government, it is recommended that the right to request 
review of an area for designation be extended to anyone. 
However, the criteria for reviewing requests should be 
sufficiently stringent to minimize the number of times 
government would have to respond to poorly considered or 
casual requests. 



The first two activities require the establishment of new 
administrative functions: decision making processes in 
which the state's role would be primarily one of super- 
vision and assistance. Only after local government was given 
and had refused the opportunity to accept the responsi- 
bility of governing would state government assume an 
active role. The third activity would require an essentially 
passive state role; the state would provide an arena for 
resolving conflicts in the land use decision making process. 
The fourth activity, also a process, would include all levels of 



A request to designate an area of state concern should 
include the reasons for designation, the dangers and losses 
if the area were not designated, the advantages of 
designation and general guidelines for regulating develop- 
ment in the area. 

In keeping with the principle that governing, if possible, 
should be done by the government closest to the people, all 
requests for designating an ASC should be submitted to the 
local government or governments having jurisdiction over 



-63— 



the area. The local government would review the request 
pursuant to state guidelines and decide whether the request 
merited furthher attention. In the affirmative case, the local 
government would issue a notice of intent to hold a hearing, 
notify the state planning agency (discussed below), accept 
statements concerning the area from all interested parties 
(including government agencies), hold a hearing, and 
recommend granting or denying the designation request. 
The recommendation, accompanied by written findings, 
the hearing record, and copies of all submissions pertain- 
ing to the area, would be transmitted to the state Land Use 
Commission (described more fully below) which would 
make a final determination. 

If the local government found the request for a designation 
undeserving of further consideration, the parties or agency 
making the request could appeal to the state Land Use Com- 
mission which could concur with the local government or 
direct the local government to hold hearings and offer a 
recommendation. If a local government refused to comply 
with a decision of the commission, the commission could 
seek judicial remedy or direct the state planning agency to 
hold hearings and submit findings. 

Alternatives for lodging the ASC designating authority 
include the local government (with automatic appeal to the 
Land Use Commission), the governor, the legislature, a state 
agency, or any combination of these. Each of the choices has 
significant drawbacks. If final determinations of local 
governments can be appealed to a state level commission 
then the state may be habitually overruling local govern- 
ments, creating another source of intergovernmental 
friction. The governor and the legislature rarely would be 
able to devote full attention to land use issues; and their 
involvement would unnecessarily extend the time required 
for designation. The Montana legislature has tended to 
avoid charging a single administrator (such as the governor) 
with responsibility of the magnitude of designating an ASC. 
Traditionally this has been the type of task assigned to a 
quasi-judicial board. 

The Environmental Quality Council recommends that the 
final designation of an Area of State Concern be made by 
the Land Use Commission. 

The commission would consider the original request, 
material submitted to the local government, the record of 
the local hearing, and the recommendation of the local 
government. If additional evidence was required, or if the 
local government had violated established procedure, the 
matter would be returned to the local government for 
further hearings. The commission could be petitioned to 
reconsider its decision upon the presentation of new 
evidence or evidence of a procedural error on its or local 
government's part. Those who would be allowed to petition 
would include affected landowners, the party filing the 
request for ASC designation, the local government 
involved, and the state planning agency. The decision of the 
commission would be an order on designation 
accompanied by findings specifying the reasoning used in 
the order, the advantages and disadvantages of designation, 
the loss if not designated, and general criteria for the area's 
development regulations. 

If an Area of State Concern were designated, the local 



government or governments having jurisdiction over it 
would be given (say) six months to prepare detailed 
development regulations based on the designation order 
and the guidelines promulgated for that category of area by 
the state planning agency. Financial and technical assistance 
would be provided by the state to help prepare the 
regulations. As an option, local governments could request 
the state planning agency to act as a consultant for the 
preparation of regulations. 

After approval by the local governing body, the ASC 
development regulations would be circulated to state 
agencies and interested parties for comment. The 
regulations would either be approved by the Land Use 
Commission or returned to the local government for 
revision. Once the regulations were approved, the local 
government would administer and enforce them through a 
permit system. 

if a local government refused to prepare development 
regulations, the Land Use Commission could direct the state 
planning agency to prepare them and direct the local 
government to enforce them. If a local government refused 
to enforce ASC development regulations, the Land Use 
Commission could either direct the state planning agency to 
enforce them or seek a court order requiring compliance. 

To direct the state planning agency to enforce regulations in 
an area some distance from the capital city seems cumber- 
some, but the alternative of requiring a state government 
unit to take a local government to court is distasteful. Yet 
laws that are not enforced are worthless. A sure remedy 
must be provided. 

Any process for designating Areas of State Concern must 
include provision for interim controls; it would be folly to 
delineate an area as an exceptional resource and then leave 
it unprotected for any length of time. It is recommended 
that interim controls be instituted at the time local govern- 
ment issues a notice of a hearing in response to a request for 
an ASC designation. The development regulations 
suggested in the request for designation could be used as 
interim controls, or the state planning agency could 
promulgate general controls for each category of ASC. 

Provision must be made to rescind the order designating an 
Area of State Concern. It is recommended that this process 
be initiated by a request to the local government or govern- 
ments involved for removal of the designation. Subsequent 
action would parallel that required following a designation 
request. Provision also must be made to drop laggard 
proceedings. If development regulations were not 
prepared and approved within (say) 18 months after the 
local government issued a notice of hearing in response to a 
request for designation, the process would be terminated 
and the request denied. 



Developments of Greater 
Than Local Impact 

Developments of Greater than Local Impact (DGLI) are 
defined as proposed developments which, regardless of 



—64- 



where they occur, have significant effects beyond the 
boundaries of the local government having jurisdiction over 
the development site. Major shopping centers, large sub- 
divisions. Industrial complexes, and public works projects 
are DGLI examples. Also included under this land manage- 
ment concept are procedures for insuring local input to 
state land use decisions. 

Currently, this type of development is reviewed 
Independently by state agencies for compliance with 
specific technical criteria and by local governments for 
weighing against unspecified value considerations. Usually, 
local government review occurs without benefit of a 
technical review. The Environmental Quality Council 
recommends a consolidation of these two complementary 
aspects of decision making — technical review and value 
assessment. 

It is recommended that the legislature stipulate general 
guidelines for designating Developments of Greater than 
Local Impact and that the state planning agency be respon- 
sible for promulgating specific criteria. A DGLI would be 
determined by the number of persons likely to reside or be 
employed at the development, size of site, likelihood of 
associated development, traffic generation, and the 
environmental impacts of the development. These criteria 
would vary from one regional area to another. What might 
be a Development of Greater than Local Impact in Broadus 
might not be one in Missoula. 

A developer whose project appears to have greater than 
local impact would be required to complete a permit 
application provided by the state planning agency. The local 
government having jurisdiction would review the applica- 
tion on the basis of state guidelines and decide for or against 
classification as a DGLI. However, these guidelines should 
not be all-inclusive and a local government should be 
allowed flexibility in classifying a development as a DGLI. 
The decision on the classification should be appealable to 
the Land Use Commission by any citizen. 

DETERMINATION 

After determining that a proposed development qualifies 
for DGLI classification, the local government would send a 
copy of the permit application to the state planning agency 
and issue a notice of intent to hold a hearing on a Develop- 
ment of Greater than Local Impact. Either the state or the 
developer would make copies of the permit application 
available publicly. State agencies and all other interested 
parties would be allowed to submit a review of the proposed 
project and participate in the hearing. 

To insure that local government officials make their value 
decisions in light of the results of technical considerations. It 
is recommended that all state agencies with permit 
authority pertaining to the proposed development be 
required to complete their investigations and present their 
determinations at or before the local government's hearing. 
The Environmental Quality Council thinks that local officials 
making value determinations ought to have the final say in 
this area, subject to appeals based on whether procedures 
were reasonable and thorough. 



Within (say) 30 days after the hearing, the local governing 
body would have to decide to deny, approve, or approve 
with conditions the development application. The local 
government would be required to issue an order stating its 
decision and the findings to substantiate it. In coming to its 
decision the local government would have to consider the 
impacts of the development beyond as well as within its 
territorial boundaries. Carefully considered criteria for 
implementing this requirement should be included in the 
law. There are at least two approaches to this task. 

The legislature could stipulate a number of criteria that the 
local government would have to find adequately satisfied 
before a permit were issued. For example, local govern- 
ment could be required to determine that the proposed 
development: 

1. Would not place unreasonable burden on existing 
public services, such as highways, schools, and 
police and fire protection. 

2. Would have sufficient water available for its fore- 
seeable needs. 

3. Would not have significant adverse effects on the 
natural environment and would not cause undue 
air or water pollution. 

4. Would not adversely affect existing land uses, 
scenic characteristics, natural resources or 
property values. 

5. Would have adequate sewage and solid waste 
disposal facilities. 

The Environmental Quality Council recommends, how- 
ever, that local governing bodies be required to determine 
that the probable benefits of the project exceed the 
probable detriments. Presumably, this is the thought 
process employed now by county commissioners and city 
fathers, only it is done implicitly without step by step analysis 
and disclosure of the benefits and detriments. The 
legislature should require the local governing body at least 
verbally to define the benefits and detriments of a project In 
a number of areas, for example: 

1. Favorable or adverse effects on other persons or 
property owners. 

2. Immediate costs for additional local government 
services versus the expected long-term tax base 
increase. 

3. Favorable or unfavorable impact on the human 
environment, including a recognition of 
intangibles: community character, beauty and 
ugliness, convenience and necessity. 

4. The appropriateness of the development given 
alternative locations within the local jurisdiction 
and elsewhere. 

A decision of local government on the DGLI could be 
appealed to the state Land Use Commission by the 
developer, the owner of the property to be developed, 
adjacent property owners, the local government, the state 



planning agency, and any person or group that participated 
in the local government's review of the project. The Land 
Use Commission would review the permit application, 
material submitted to the local government, the record of 
the local hearing, and the order and findings of the local 
government. The commission could concur, overrule, or 
modify the decision of the local government based on its 
findings that the local government erred in procedure or in 
its assessment of benefits and detriments. The decision 
would be delivered in writing accompanied by an explicitly 
presented assessment and balancing of local and regional 
(or statewide) benefits and detriments accompanying the 
proposed project. 

Reviewing State /Agency Decisions 

Much has been made during the lastfewyearsof thegoal of 
decentralization and allowing local governments greater 
involvement in the exercise of state power. Yet in Montana 
today only District Councils offer an organized channel for 
local governments to influence state agency decision 
making — and there is only one officially certified district 
council. Certainly, there are many valid reasons for 
decisions to be made solely at the state level and there are 
certain federal regulations that legally may be administered 
only by a state agency. However, many decisions which 
significantly affect the use of land are being made without 
the involvement of the local government closest to the 
effects of the decision. 

In keeping with the principle that state government actions 
should be subject to the same regulations as private actions, 
the EQC recommends that appropriate state agency 
projects be subject to the DGLI process. However, actions 
which the legislature has clearly determined to be of such 
magnitude and effect that only state government can 
adequately assess their consequences should be excluded. 
Projects regulated by the Utility Siting Act and the 
determination of the alignments of interstate and primary 
highways fall into this category. 

In addition, the lack of coordination between the state and 
local levels of government forces private developers to 
make repeated, sometimes costly presentations of their 
projects. For example, current laws on water, sewage and 
solid waste disposal facilities in new subdivisions require a 
developer to submit much the same information to both the 
local government and the Department of Health and 
Environmental Sciences. The county commissioners, who 
should be making the final decision regarding a sub- 
division, often are legally bound to approve or disapprove a 
project without knowing the results of the health depart- 
ment's investigation. This process takes the decision making 
away from its rightful place in local government. 

A similar situation probably will occur in the regulation of 
indirect sources of air pollution as required by the federal 
Clean Air Act. Under the proposed process for implement- 
ing this act, the Board and Department of Health will have 
the final say on major commitments of land areas for major 
shopping centers, large subdivisions, industrial complexes, 
airports and other developments. This decision will be made 
solely on the basis of air quality standards. 



The Environmental Quality Council thinks that major 
commitments of land involve more than air or water quality, 
or the suitability of the site for reclamation Technical 
standards for these considerations must be satisfied, but 
major commitments of land involve value judgments that 
cannot be made equitably by bureaucrats. Value judgments 
should be made by elected officials or groups of citizens 
selected for that purpose. 



Appeals Procedure and 
State Level Organization 

LAND USE COMMISSION 

The Environmental Quality Council recommends that a 
Montana Land Use Commission be created to hear appeals 
concerning Areas of State Concern and Developments of 
Greater than Local Impact. The commission would provide 
an arena where statewide interests could be presented and 
protected if local governments refuse the responsibility of 
governing or reach decisions based only on parochial 
interests. 

In hearing appeals the commission would resolve conflicts 
among state agencies and between levels of government. In 
this capacity the commission could coordinate and lend 
consistency to major land use decisions throughout the 
state for the first time. 

For example, the location of an interstate highway inter- 
change probably would be a Development of Greater than 
Local Impact (although the highway alignment itself 
probably would be exempted from DGLI designation). The 
local government (say a county) having jurisdiction over an 
area where an interchange is proposed would hold a DGLI 
hearing at which the Department of Highways would 
present its plans, probably including alternative locations. 
Interested citizens, other (perhaps adjacent) local govern- 
ments and other state departments would present their 
positions on the proposed interchange locations. The 
county planning staff or the state planning agency would 
organize the hearing testimony in a useful form for review 
by the county commissioners. The commissioners' decision 
would be presented in writing and substantiated by findings 
based on the local and regional benefits and detriments of 
the location actually chosen by the commissioners. The 
criteria for making this determination would be similar in 
scope to those in the Utility Siting Act (Sec. 70-801. ef seq., 
R.C.M. 1947) which directs the Board of Natural Resources 
and Conservation to make decisions on siting energy 
conversion facilities. Those holding that the county com- 
missioners violated aestablished procedure or failed to 
make their decision pursuant to the statutory guidelines 
could appeal to the Land Use Commission. 

If a preliminary review of the appeal found that it raised 
substantial issues then the Land Use Commission would 
determine, by review of all relevant testimony and advice, 
whether the county commissioners had reached a 
sustainable decision. 



The Land Use Commission should comprise five citizens 
appointed by the governor with the consent of the senate. 
The commission's members should represent the geo- 
graphic diversity of the state. The commission should be 
protected by law from domination by any interest group. 
Ideally, a commission resolving conflicts among state 
departments would be attached to the governor's office. 
However, Montana has had few functional agencies 
attached to a governor's office and such placement might 
violate the intent of executive reorganization. It is 
recommended, therefore, that the Land LJse Commission 
be attached to the Department of Administration for 
administrative purposes only and provided that this place- 
ment be made only to satisfy the requirement that all boards 
and commissions be attached to a department (Article VI, 
Sec. 7, Montana Constitution). The commission would 
require a small staff to screen appeals, compile material for 
the consideration of the commission and generally perform 
housekeeping chores. 



The planning agency also would issue detailed rules for 
reviewing requests to designate Areas of State Concern, for 
classifying projects as Developments of Greater than Local 
Impact, and for evaluating benefits and detriments 
associated with DGLIs. Interim development control guide- 
lines for categories of ASC also would be needed to 
encourage comparable regulation statewide. 

The state planning agency would publish a newsletter 
detailing activities of local governments and the Land Use 
Commission on requests to designate ASCs and to classify 
projects as DGLI. But the newsletter would be only part of 
the state planning agency's expanded informational role. 
The agency also would be responsible for maintaining a land 
use planning information center. The center would allow 
access to the vast quantitities of information about Montana 
being gathered by the 19 state departments and would be 
available to all state agencies and local governments to help 
them make the complex land use decisions they would face. 



The primary responsibilities of the commission would be 
designating Areas of State Concern, reviewing develop- 
ment regulations for designated areas and hearing appeals 
of local government decisions. Appeals could be made 
concerning decisions on initiating the ASC review process, 
the designation of a particular project as a DGLI, the 
decision on a DGLI, the handling of permits within Areas of 
State Concern and the enforcement of the regulations 
developed for a DGLI. 



Reviewing a request for designating an Area of State 
Concern would involve assessing the statewide or regional 
values of an area and its capability to support use while 
retaining those values. Determining and ranking values 
could be done equitably only by the people, their elected 
representatives or by citizen commissions. Analyzing the 
capability of an area to support a land use would require 
assessment of the natural and cultural systems, their inter- 
action, and the changes that would result from the use. 



The commission also could be directed to approve rules 
promulgated by the state planning agency concerning 
Areas of State Concer and DGLI. However, involvement of 
the commission in administrative action would violate the 
intent of executive reorganization and might compromise 
its role as an appellate body. 



STATE PLANNING AGENCY 

The Environmental Quality Council recommends that the 
role of the state planning division of the Department of 
Intergovernmental Relations be clarified and expanded. 
The planning agency envisioned in this study is unlike the 
majority of existing state agencies in that it would be 
analysis-oriented rather than mission-oriented. Its primary 
"mission" would be to provide analytical services at the 
request of local governments. 

The state planning agency would have to be able to work 
closely with local governments in the compilation and 
preparation of material for the local governing body 
concerning Areas of State Concern and Development sof 
Greater than Local Impact. The agency also would have to 
act as a consultant and render assistance to local govern- 
ments in the preparation of development regulations for 
ASCs and in the evaluation of DGLIs, and respond to 
directives from the Land Use Commission for the 
preparation of development regulations when a local 
government fails to do so. The state planning agency also 
might represent other state departments at local govern- 
ment hearings concerning Areas of State Concern and 
DGLIs. 



The regulation of an Area of State Concern would entail a 
balancing of: values, the impacts of land uses, the capability 
of area's systems, and the expectations of property owners. 

Similarly, the evaluation of Developments of Greater than 
Local Impact would require assessing statewide or regional 
values represented in local natural and cultural systems, and 
assessment of the requirements and impacts of land uses. 

Cultural system values are embodied in the community's 
life-style, its cohesiveness, the protection of public health 
and the cost of providing public services such as roads, 
schools and police and fire protection. Natural system 
values include unquantifiable aesthetic factors and psychic 
needs, the ability to sustain a use over the long term and the 
work that nature does for man without charge, such as 
providing rainfall, breaking down wastes, and providing 
wild game. The complex web of cultural and natural system 
values present at a locality has only a certain capability to 
withstand the impacts of land use; exceed the capability and 
the values are lost. 

For example, a locality that can withstand the impacts of 
economically viable agriculture and retain its cultural and 
natural values must at a minimum be accessible, reasonably 
close to markets and supply centers, include soils that can 
sustain cultivation or grazing without eroding or becoming 
saline, and be part of a hydrologic system that can withstand 
volume reductions and still dilute agricultural runoff 
without excessive damage to aquatic life. 

On the other hand, each use that humans make of land has 
specific requirements for raw materials, labor force, waste 



—67- 



disposal, access and natural environmental support. 
Continuing the example, economically viable agriculture 
requires (at a minimum) markets, petroleum, fertilizer and 
machinery (from cultural systems), and productive soils, 
relatively flat topography, water and a certain climate from 
natural systems. 

The DGLI process is intended to decide the siting of projects 
based on the best possible matching of natural and cultural 
capabilities of localities with the requirements and impacts 
of land uses. Some natural and cultural system values are 
protected now by minimum standards in laws concerning 
air and water pollution control. However, it is not possible 
to protect every value in all siting decisions. When deciding 
among values it is essential that decision makers have the 
best available information on capabilities, requirements, 
and impacts. 

Unfortunately, the existing state personnel with the training 
and experience to work with local governments and to 
compile and interpret the data needed for these decisions 
are dispersed between two state agencies. The people with 
the necessary skills in natural science, sociology, economics, 
and land use planning are within the Energy Planning 
Division of the Department of Natural Resources and 
Conservation. As the name of the division implies, it is a 
planning agency. Those with skills in intergovernmental 
coordination and other aspects of the land planning are 
with the Planning Division of Department of Intergovern- 
mental Relations. 

In the interests of governmental efficiency the Environ- 
mental Quality Council recommends that the Energy 
Planning Division and the Planning Division be 
consolidated into a State Planning Division. 

This consolidation would enable energy planning, which is 
involved in utility siting decisions that will affect significantly 
the future of the state, to be associated with a broad state 
planning effort hinged to the needs and desires of local 
government. In addition, the Montana Land Use Com- 
mission, because it would have specific responsibility in 
land use and would develop extensive expertise in the area, 
should assume administration of the Utility Siting Act now 
administered by the Board of Natural Resources and 
Conservation. 

Since the primary mission of the proposed State Planning 
Division is to assist local government, the division logically 
belongs in the department with responsibility for liaison 
between state and local government. If local governments 
are given the responsibility of governing in an area as 
sophisticated and demanding as land use analysis, the state 
must be prepared to deliver substantial direct assistance to 
local government on request. With such expanded 
responsibility and mandate, the title Department of 
Planning and Local Affairs would best identify the role of the 
Department of Intergovernmental Relations. 

A LEGISLATIVE COMMITTEE 

To expedite legislative involvement in the state land use 
decision process, it is recommended that a joint legislative 



committee on land use be created. The Land Use 
Commission would report to the committee annually. To 
insure representation of the legislative groups with a major 
interest in land use while preventing domination by any one 
group, this committee should include the chairpersons 
and/or vice-chairpersons of the House and Senate 
committees on Fish and Game, Highways, and Natural 
Resources, and the Senate committee on Local Govern- 
ment. 



Outlining A Policy 
Statement 



Working together to form an interlinked decision making 
system, the functions of designating Areas of State Concern 
and Developments of Greater than Local Impact, and the 
activities of the Land Use Commission, would implement a 
state policy for making land use decisions. This policy would 
be consistent with the Montana Environmental Policy Act 
and would declare that: 

1. An individual's right to property is basic, 
guaranteed by the U.S. and Montana Constitutions 
and accompanied by certain responsibilities. 

2. The state has a limited but legitimate interest and 
responsibility to intervene in land use decisions 
when interests and values of citizens in a region or 
throughout the state are significantly affected. 

3. Elected local officials and citizen commissions are 
responsible for decisions determining and protect- 
ing the values of the people. 

4. State government encourages, and supports with 
technical and financial assistance, the efforts of 
local officials to govern responsibly. 

Policy consistent with the Montana Environmental Policy 
Act must recognize that sustained economic productivity 
depends on the maintenance and enhancement of environ- 
mental integrity, that each person is entitled to a healthful 
environment, that today's citizens are the trustees of the 
environment for succeeding generations, and that an 
objective of government must be to strike a balance 
between population and resource use. 



Statewide Goals and 
Priorities: Growth and 
Montana's Future 

The Environmental Quality Council's Land Use Question- 
naire found a compelling unanimity in the desire of local 
officials to preserve the agricultural values of the state. 
Recent statements by the governor and other officials, and 
editorials in the press, indicate that Montanans want control 
of the state's future. Governor Thomas L. Judge has 
summarized the need and the desire very well: 



All of Montana's planning programs and related 
laws, significant as they are, cannot define the level 
of growth and subsequent quality of life that we 
desire. They cannot decide whether we want a 
population of 700,000 or several million. They 
cannot choose between an agricultural or an 
industrial society. Only Montanans can make such 
choices, but until our objectives are clearly 
articulated, our best planning efforts cannot but 
remain disjointed at best, and divergent at worst 
(65). 

Montana stands today at a crossroads. Decisions made over 
the next few years on the use of land will commit the state 
irreversibly. Before too many of these decisions are made, 
Montanans must define, as best they can, their goals and 
values. More than half of the 50 states have such programs. A 
clear, unified articulation of our values and goals would 
offer policy guidance to local governments, the legislature 
and the governor. Incorporated in legislation, the 
articulated goals and priorities of values could resolve the 
inconsistencies and correct the impotence of the state's 
overall land use policy. 

This study recommends a policy and process for making 
certain land use decisions, but these are just tools — 
guidance is needed from a broader perspective. A policy for 
making land use decisions can guide Montana to any of a 
number of futures; Montanans must choose their most 
desirable future and direct the process to achieve it. 

Protecting regional and statewide interests in Areas of State 
Concern and in Developments of Greater than Local Impact 
can insure that Montana is not overwhelmed. But the firm 
guidance of a growth policy is needed to prevent the step- 
by-step disintegration of subtle and unique relationships 
that now exist between the state's citizens and the land. No 
case-by-case review process can accomplish this. To bend 
the future to their will the people of Montana must be 
willing to establish a priority of values and hold decision 
makers accountable for the difficult job of trading low 
priority values for high priority ones. 

Montanans need an institutional forum for asking and 
exploring answers to two fundamental questions concern- 
ing growth and development: What do we want tomorrow's 
Montana to be like? and What kind of growth should occur 

where^ 

The Environmental Quality Council recommends the 
creation of a Commission on Growth and Montana's Future 
to provide this forum. 



ADDITIONAL TOOLS TO 
GUIDE LAND USE 

In addition to the land use decision making process 
recommended by this study, there are numerous tools the 
legislature could use or provide to local governments to 
guide land use. 



Taxation 



Taxation by itself cannot solve Montana's land use 
problems, but recognition of the land use implications of 
the taxing power and its deliberate use can assist in guiding 
land use decisions. The equalization of assessment 
procedures throughout the state was a significant step, and 
directing that assessments be coordinated with local 
planning efforts would be another step. The greenbelt law 
(Sees. 84-437.1 to 84-437.17, R.C.M. 1947) is also an example 
of the use of taxing power to influence land use decisions. 

USE VALUE ASSESSMENTS FOR 
FARMLANDS 

Montana's greenbelt law provides statutory authority for 
the "use value" assessment of agricultural land. This law is 
intended to keep farmland in production by reducing the 
property tax burden from what it would be if the agri- 
cultural land were taxed at market value. This burden is 
particularly heavy near growth areas where land is in 
demand for suburban purposes. The legislature has 
assumed that decreasing the tax burden on farmland 
decreases the incentive to place agricultural land in non- 
agricultural uses. However, there are serious questions 
whether the greenbelt law is influencing land use decisions 
in the way the legislature intended. Major problems appear 
to be: 

1. Lack of prohibitions against the application of the 
bill to areas planned by local governments for the 
extension of urban services and uses. This failure 
encourages speculation and induces conflict 
between local planning and state tax policy. 

2. The three statutory requirements for agricultural 
land classification, only one of which must be met 
to receive the classification and a tax reduction, are 
too loose. One requirement is that the land must 
have been assessed as agricultural land for the 
previous three years, and currently must be used 
for agriculture. But the requirement does not 
consider acreage put to use or gross farm income. 
Thus a small parcel of land historically devoted to 
agriculture but sold for a building site can receive 
agricultural classification if a single horse is grazed 
there. A second requirement holds that the owner 
must have a minimum annual gross income of 
$1,000 from the agricultural use of the land, 
regardless of acreage, to qualify for the greenbelt 
tax break. Under this criterion most of a 100-acre 
parcel could be sold or used non-agriculturally 
while still retaining the tax break. The third 
requirement allows agricultural classification if at 
least 15 percent of the owner's income is derived 
from farming. This provision discriminates against 
farmland owners who need non-farm income to 
survive. 

3. The rollback tax penalty, assessed when greenbelt 
land is put to non-agricultural use, is insufficient to 
discourage the removal of land from agricultural 



—69- 



production. The 
demonstrate this: 



following two examples 



Example 1 

A farmer owning 100 acres of irrigated land in Missoula 
County considers selling 500 acres to a developer for $350 
per acre. The land originally cost the farmer $50 per acre. 

Based on the 1972 average tax per acre of irrigated land in 
Missoula County and the 1972 Missoula County mill levy the 
tax on the 500 acres in agricultural and residential use can be 
calculated (20). From this calculation the penalty under the 
greenbelt law for converting the land from agriculture to 
residential use can be determined. 

County Mill Levy: 164.96 

Average tax per acre on irrigated land: $1.71 

The tax on 500 acres of average irrigated land in Missoula 
County in 1972 was 500 times $1.71, or $855. 

When sold for residential use at $350 an acre, the market 
value of 500 acres is $175,000. To determine what the 1972 tax 
on this land would have been it is necessary to calculate the 
assessed value (40 percent of the market value), the taxable 
value (30 percent of the assessed value) and multiply the 
taxable value by the mill levy. 

$175,000 times .4: $70,000 assessed value 

$ 70,000 times .3: $21,000 taxable value 

$ 21,000 times .16496: $3464 in taxes 

The difference in the tax for the two uses equals $3464 minus 
$855, or $2609. Based on the penalty provision of the 
greenbelt law a four-year rollback penalty for the 500 acres 
would be $2609 times 4, or $10,436. 

Subtracting the original cost of the land ($25,000) from the 
selling price ($175,000) leaves the farmer a capital gain of 
$150,000. Would a penalty of $10,436 affect the farmer's 
decision to sell out and realize a $150,000 capital gain? 

Example 2 

A rancher owning 1,000 acres of non-irrigated land in 
Yellowstone County considers selling 500 acres to a 
developer for an average of $250 per acre. Original purchase 
price of the land averaged $30 per acre. 

Based on the 1972 average tax per acre on non-irrigated land 
in Yellowstone County and the 1972 Yellowstone County 
mill levy, taxes on the 500 acres in agricultural and 
residential use can be calculated (20). From this calculation 
the penalty under the greenbelt law for converting the land 
from agriculture to residential use can be determined. 

County Mill Levy: 145.12 

Average tax per acre on non-irrigated land: $ .81 

The tax on 500 acres of average non-irrigated land in 
Yellowstone County in 1972 was 500 times $ .81, or $405. 



When sold for residential use at $250 per acre the market 
value of the 500 acres is $125,000. The 1972 tax on this land is 
determined as in Example 1: 

$125,000 times .4: $50,000 assessed value 
$ 50,000 times .3: $15,000 taxable value 
$ 15,000 times .14512: $2176 in taxes 

The difference in tax for the two uses equals $2176 minus 
$405, or $1771. Based on the penalty provision of the green- 
belt law a four-year rollback penalty for the500acres would 
be $1771 times 4, or $7084. 

Subtracting the original cost of the land ($15,000) from the 
selling price ($125,000) leaves the rancher a capital gain of 
$110,000. Would a penalty of $7084 affect the rancher's 
decision to sell out and realize a $110,000 capital gain? 

Correcting Greenbelt Law Deficiencies 

Some specific suggestions for correcting defects in the law 



1. Increase the allowed minimum acreage figure 
from 5 to 10 acres. 

2. Do away with the percent-of-income option to 
qualify and tie the historical use option to a 
minimum gross income figure related to land 
classification and number of acres. The more 
productive and expansive the land the higher the 
minimum income figure. 

3. Tighten other criteria for determining who is a 
bona fide farmer. The following can serve as 
indicators to guide reform of the greenbelt law 
requirements: 

» If the property is sold at a per acre price 
substantially higher than the market price for 
similar agricultural land, this may suggest a 
purchase for other than agricultural use. 

• Can the property qualify if it is being leased? If so, 
should there be a minimum number of years that 
the current owner must have owned the land? 

4. Revise the penalty provision to comply with one of 
the following options: 

• Extend the current rollback period from four years 
to at least eight or 10 and add an interest payment 
on the amount owned plus a flat charge for each 
acre transferred out of agricultural use. 

• Require the owner applying for agricultural 
classification to enter into an agreement that the 
property will remain in agricultural use for a period 
of (say) 10 years. At the end of the period the owner 
could change classification if he intends to change 
the use of his land. If the use were changed before 
the end of the agreement, there would be 
substantial penalties, perhaps a 15-year rollback 
plus interest and a penalty. 



• Relate the penalty fee to the productivity of the 
land. The more valuable the agricultural land the 
tougher the penalty fee to encourage the retention 
of productive agricultural properties. 

It must be remembered that a "use value" assessment 
procedure will not, by itself, preserve agricultural land. 
Experience in other states has been that land given special 
tax treatment vi'ill be sold or converted to another use when 
the price is right. 

There are other uses of the taxing power to guide land use 
decisions: 

TAXING JURISDICTIONS 

Even after equalization of assessments, property tax burdens 
still could be significantly different between a $25,000 
residence outside the city and a similar residence inside the 
city limits. This is due to the differing tax jurisdictions: one 
being the county with a school district; the other 
comprising the county , a school district and the city. The city 
is able to levy taxes in addition to the amountalready levied 
by the county and school districts. Boundaries between 
taxing jursidictions are arbitrary and usually bear little 
resemblance to the geographical boundary of the area 
served by public facilities. Today, there is a real need for 
authority to tax on the basis of services received. Exercising 
the authority would require delineation of "service areas" 
in which all residents would be taxed equally to support 
equal public services. 

LAND VALUE TAXATION 

Land value taxation would shift the tax burden from 
buildings and improvements to land. Property owners 
would be encouraged to build on vacant lots where there is 
a bona fide demand for office space and housing. Property 
taxes would rise very little once the structures were put up. 
This would improve the financial health of building projects 
in general. A second effect would be to make the 
speculative holding of land for- future development 
extremely costly and thereby decrease the economic 
incentive for "leap frog" sprawl caused by the holding of 
developable land for capital gains. 

Land values for tax purposes would be influenced heavily by 
the property's location and the public facilities and services 
available to it. Land value taxation is an equitable way to 
return to the public some of the publicly financed benefits 
normally accruing only to the private landowner. This taxing 
system would have to be complemented by an assessment 
policy giving deference to agricultural land so that farmers 
near population centers would not be burdened with 
unrealistic property taxes on large land holdings. Tax zones 
could be drawn around population centers with the ratio of 
tax on the land to the tax on improvements approaching 
equality the farther the distance from the city center. 

DEVELOPMENT IMPACT TAX 

A (fcvelopment impact tax would be levied on new con- 
struction to ease the burden on local governments trying to 
provide services demanded by new residents. The tax ( ould 



be related to variables such as number of units, floor area, 
number of acres, projected capital investment, and 
employment. The guiding principle would not be to dis- 
courage building but to shift the financial burden of growth 
to the chief economic beneficiaries of that growth, namely 
the developers. However, the ability of developers to pass 
additional costs along to consumers raises a question 
concerning fairness of requiring new residents to pay costs 
not charged to older residents. 

In addition, this tax may not be appropriate or desired in 
many Montana communities. It could raise building costs 
during a period of already rapidly increasing building and 
mortgage costs. However, the tax could be offered as an 
option available to local communities as part of their 
existing permit procedures. If a community were to 
determine that additional growth would mean an increase 
in the costs of local government, it could levy the develop- 
ment impact tax. 

A SEVERANCE TAX ON TIMBER 

Montana's private forest lands currently are taxed on the 
basis of market value of the standing timber, and the market 
value of the land. This tax system is an incentive to harvest 
timber in order to reduce property taxes. Good forestry 
practices may be discouraged when owners realize that 
taxes may increase as the quality of timber improves. 

Considering the value of well-managed forest land for 
Montana's water resources, wildlife, recreational oppor- 
tunities, and wood products industry, a severance tax based 
upon the value of the wood at the time of the harvest in lieu 
of the present market value tax would mitigate the adverse 
economic, social and environmental impacts of the current 
system. By applying the severance tax to timber harvested 
from federal lands as well, additional revenue would arise 
from timber cuts that are currently escaping state taxation 
altogether. The timberland tax system also would become 
simpler to administer — there would not be need to deter- 
mine market values for standing timber. 

A problem would remain of how to mitigate the effects of 
reduced local taxable valuations on school district budgets. 
The receipts from harvested timber could be returned to the 
counties and school districts to offset tax revenue lost by 
removing standing timber from the property tax rolls. 
However, bonding capacities, bond repayment schedules, 
and voted levies still are dependent upon local taxable 
valuations. A careful analysis of these relationships would be 
required before a severance tax on timber would be 
prudent. 

TAXES ON MOBILE HOUSING 

Currently, trailer houses are taxed as personal property on a 
sliding scale which reduces the assessed value gradually to 
reflect depreciation in the structure's market value: a six- 
year-old mobile house is assessed at about 25 percent of its 
original cost. A new one is assessed at 40 percent of its cost. 
Although this scale represents one reality of the market- 
place (that trailers depreciate), single- and multiple-family 
dwellings and apartment units (permanent housing) 
normally appreciate with age. Thus, while permanent 



housing increases local taxable valuation over a period of 
time, mobile houses tend to decrease local taxable valuation 
over time. All housing types, however, demand similar 
public services. 



During periods of increasing costs to maintain a given level 
of public services, communities in which mobile homes 
constitute a large share of the housing will experience a 
widening gap between taxable valuations and public service 
costs. As the gap grows, so will the tax burden on owners of 
permanent housing. 



Today, trailer houses represent a greater percentage of 
new housing than ever before in Montana's history. 
Continued high rates of inflation probably will exacerbate 
this trend as permanent housing remains out of the reach of 
a growing percentage of young families. 



A taxation system for mobile housing based on market value 
may result in financial problems for local governments in 
the long run. This fact should be acknowledged today, and 
an effort begun to determine how best to tax mobile 
housing in order to prevent its long-term subsidization by 
owners of permanent housing. 



LAND GAINS TAX 

Individuals whose primary income is from sources other 
than the sale or development of real estate are provided an 
incentive to speculate in real estate by the capital gains 
provisions of the federal income tax code. For these 
individuals the maximum tax levied on the actual financial 
gains from the sale of real estate is 25 percent. For 
individuals whose normal income might be taxed at rates 
above 25 percent, these tax provisions make land an 
attractive investment. Encouraging investment in real estate 
also inflates land values in areas where property is already in 
demand. 



Montana tax laws treat capital gains realized from the sale of 
land as federal codes do. In 1973, Vermont enacted a land 
gains tax to discourage the rapid turnover of land. Under the 
Vermont system, an additional tax above others is imposed 
on gains from the sale of land (excluding parcels of less than 
1 acre to be used by the taxpayer as his principal residence). 
The rate of taxation depends on the amount of time the land 
IS held, and is scaled upward as the gain increases. 



A land gains tax makes speculation in real estate less 
attractive as a tax shelter while preserving the freedom to 
buy and sell land for a profit. The tax could be designed so 
that homeowners residing on less than 1 or 2 acres of land 
are not subject to the tax; the first 20 percent of capital gain 
is not subject to tax; and anyone holding land for more than 
seven years is not subject to tax. 



What follows is a suggested scale for a Montana land gains 
tax: 



Tax Rate on Capital Gains as a Function of Holding Period 
and Percent Cain 



Time held by 


First 


Next 


Over 


Seller (years) 


20-99% 


100-199% 
Tax Rate (%) 


200% 


Less than 6 mos. 


55 


70 


85 


6mos. -lyr. 


47.5 


60 


72.5 


1-2 


40 


50 


60 


2-3 


32.5 


40 


47.5 


3-4 


25 


30 


35 


4-5 


17.5 


20 


22.5 


5-6 


10 


10 


10 


6-7 


5 


5 


5 



Other Tools 



Zoning, long a process used to guide the growth of cities, 
has been the subject of increasing criticism in recent years. 
In rural areas, zoning has never proved satisfactory and is 
particularly unpopular with agricultural people. Several 
other tools for guiding land use and for the equitable 
protection of agricultural land have been developed and 
are being tested throughout the United States. 

TRANSFERABLE 
DEVELOPMENT RIGHTS 

Transferable development rights is an innovative tech- 
nique to guide land use by creating a market in 
"development potential" that can be transferred from one 
locality to another. 

In legal theory, the right of property ownership is made up 
of a number of constituent rights. One of the constituent 
rights is the right to develop or change the use of land. Like 
mineral and surface rights, development rights can be 
separated from land ownership. This severability has long 
been recognized in certain cases and has been demon- 
strated by the purchase or condemnation of particular 
property rights by government to secure scenic easements, 
and in the private sector when one individual obtains a right 
of way for a private road across another's property. 

Numerous planning and legal authorities have suggested 
that a market be created for the transfer of development 
rights by the normal market mechanisms. For example, a 
local government might designate an area for open space or 
agriculture and prohibit other types of development. Land- 
owners in the area designated would continue to own their 
land but would be compensated for the loss of develop- 
ment potential by being allowed to sell their unusable 
development rights to other landowners who might wish to 
develop in areas where development is allowed. By 
purchasing additional development rights, a developer 
could increase the degree of development allowed on his 
property. 

New York City adopted in 1968 a resolution allowing the 
transfer of an historic landmark's air rights to non- 



contiguous lots. In vertically oriented downtown 
Manhattan the air space over an historic landmark includes 
a very valuable development right. The object of the 
resolution was to encourage preservation of landmarks by 
allowing their owners to transfer their unused air rights to 
another lot and thereby build higher than would otherwise 
have been allowed. 

The town of Southhampton in Suffolk County, New York 
has adopted a local zoning ordinance permitting transfer of 
development rights to preserve prime agricultural land. In 
certain areas farmers are allowed to transfer the develop- 
ment potential of their entire farm to a small portion of their 
acreage and then sell the portion with the increased 
development rights. The remainder of the farm must be 
dedicated in perpetuity to a public land trust. The farmer 
and his heirs have the first option to lease the dedicated land 
at nominal fees for agricultural purposes. The program is 
entirely voluntary and allows several farmers to cooperate in 
preserving their farms for large-scale farming operations. At 
the same time, agglomerating the development rights from 
several farms produces clustered development areas with 
low public service costs. 

In 1971 Illinois enacted a law permitting the use of develop- 
ment rights transfer to aid historic preservation. The 
legislatures of Maryland, New Jersey and Colorado have 
considered bills providing authority and procedures to 
establishing transferable development rights, but all were 
killed or postponed in committee. 

The 1974 Michigan legislature enacted a law providing for 
farmland development rights agreements and open space 
development rights easements (Act No. 116, Public Acts of 
1974). 

Transferable developments rights is a new and relatively 
untried concept, still to be tested in court, but deserving of 
further consideration. (A report on transferable develop- 
ment rights can be found elsewhere in this book. It was 
prepared by Dave Kinnard, EQC Legal Assistant.) 



LAND BANKING 

Land banking is a general term applied to programs in which 
a government entity acquires and holds land to influence 
and direct the future growth of a region. Land banking 
provides government with a flexible and abolute control 
over land that cannot be achieved through regulation. 

Land baning has been used to insure an adequate supply of 
land at a reasonable price for future use, to facilitate the 
efficient and economic extension of public services into an 
area before it is developed and to capture for the public the 
increase in land value which results from providing public 
services. Land held in the bank can be pre-planned and 
resold to developers to achieve specific purposes. Buy- 
Lease Back is a variation of land banking used primarily to 
protect agricultural land from development. Farms 
threatened by suburban sprawl are purchased by the 
government and rented back to farmers under long-term, 
low-cost leases. 



Although of limited use so far in the United States, land 
banking is an important land use tool in several European 
countries and in Canada. 

Prominent among efforts at land banking has been the 
development and expansion of Stockholm, Sweden. 
Eighteen well-planned new cities, each with a population of 
250,000, have been built on land acquired by the city's land 
bank. The Netherlands also has a public land acquisition 
program dating back to the beginning of this century. 
Nearly every municipality in the Netherlands has developed 
an active land banking program which is administered by an 
independent government agency. Denmark, the United 
Kingdom, and Israel have initiated programs to guide urban 
growth through the large-scale public acquisition of land. 

Canada, however, provides persuasive evidence close 
to home that land banking can give order to urban growth. 
Since the 1930s, a substantial number of Canadian 
municipalities have guided their growth by large-scale land 
banks. The land banking program in Saskatoon, Saskatche- 
wan, has been so successful that approximately 80 percent 
of the city's residential development and 95 percent of the 
industrial expansion has been on land bank land. 

In 1972 the Province of Saskatchewan established a 
provincial land bank to accomplish two goals. The first goal 
was to provide a continuous opportunity to sell land at 
average market prices regardless of local market conditions 
and provide an effective method of transferring land from 
generation to generation. Second, and probably the most 
important goal, a new system of land tenure was to be 
established enabling farmers to hold land securely through- 
out their farming lives without having to invest large 
amounts of scarce capital in land. Rent for 1974 on banked 
land has been set at 5.75 percent of land value. Buildings and 
improvements are sold to the lessee, and after five years the 
lessee has the opportunity to purchase the land as well. 

Land banking is not entirely alien to the United States. 
About a third of U.S. cities over 50,000 inhabitants have 
programs to acquire land for schools and parks long before 
the land is needed. This is a form of land banking. 
Acquisition of industrial land by municipalities attempting 
to attract industry is another example. The major U.S. effort 
at land banking to date has been the urban renewal 
program. 

Some states have enacted legislation allowing the use of 
land banking for urban development. Foremost is the New 
York Urban Development Corporation Act of 1968 
(amended in 1973). The Urban Development Corporation is 
a public corporation directed to deal with a broad range of 
urban problems including lack of civic facilities, shortageof 
housing, physical deterioration, and a lack of industrial or 
commercial development. The corporation has been 
authorized to initiate and carry out its programs through the 
issuance of up to $1 billion in bonds and notes. 

A highly innovative program adopted by the town of South- 
hampton, Suffolk County, New York combines land 
banking with transferable development rights to protect 
agricultural land in one of the last actively farmed areas on 



-73— 



Long Island. This program is described earlier under the 
heading of transferable development rights. 

Although most land banking experience has been in 
directing urban growth and development, the same 
approach could be used to protect agricultural land around 
urban areas and recreational resources in Montana. (A 
report on land banking can be found elsewhere in this 
book. It was prepared by Dave Kinnard, EQC Legal 
Assistant.) 

CONSERVATION EASEMENTS 

Easements are well-established means to acquire certain 
rights over land. Conservation easements are voluntary 
legal agreements between landowners and state 
government or between landowners and private 
organizations to prevent certain land uses. Under 
conservation easements the landowner gives up rights to do 
certain things with his land. 

Conservation easements usually reduce the market value of 
land but provide landowners with a way to protect the 
future of their land. In addition, land with a conservation 
easement usually is allowed a tax break — recognizing its 
reduced market value. Conservation easements are used in 
several states to protect open space and acres of special 
natural and educational value. 

DISCLOSURE 

No matter how good the decision making process, the 
public interest still requires protection from unrepre- 
sentative influence by interest groups. To build this 
protection into Montana's governmental process, a strong 
public officials' financial disclosure law is vital. Only 
through disclosure can the public know when decision 
making boards, such as the Land Use Commission 
recommended in this study, become dominated by a single 
interest group or persons of similar interest. 



Given the increasing price of gold and the likeli- 
hood that gold dredging (hydraulic mining) may 
occur again in Montana, the laws regulating these 
activities need to be updated. Currently, dredge 
mining is regulated under the hard rock miningact 
(Sec. 50-1201 et seq, R.C.M. 1947)which does not 
include specific consideration of the effects of 
dredge mining. 

Recent controversies over the allocation of water 
in the Yellowstone River raise the specter of the 
construction of new reservoirs. The primary 
consideration of existing Montana law concern- 
ing dams is the safety of the structure. Dams 
proposed by state agencies, counties, 
municipalities, or other subdivisions of the state 
must submit their plans to the Fish and Game Com- 
mission to be analyzed for impact on fish habitat. 
Possible actions resulting from this analysis are 
described under the state agency review of the Fish 
and Game Commission in this study. Montana's 
laws regulating the construction of private dams 
need to be revised in light of today's concerns over 
stream and river preservation. 



References Cited 



I Environmental Qualily Council. 1972. f/rsl Annual Report. Helena. 

I Quality Council. 1973. Second Annual Report. Helena 
I Quality Council. Third Annual Report. Helena. 



5 Boyle. Robert H. 1973 "Buv Now and Cn 



■ Sports llluslraled duly 23). Pp. ' 



i Crowing." Indepe 



I Record Vol. 32. I 



Other Needs 



10 Personal f 



In preparing the Montana Land Use Policy Study, issues 
came to the attention of the study team that do not fit neatly 
into the recommendations of this report. Some needs for 
action are identified in this section: 



12. Montana Depart 



I Relations Untlal 



1. Controlling erosion, sedimentation, and the filling 
and dredging of lakes and streams was ranked as 
the third most pressing land management issue by 
local officials responding to the environmental 
Quality Council's Land Use Questionnaire. Yet 
Montana's laws sorely lack provisions to 
accomplish these goals. 

2. The location of public schools can have significant 
impact on the use of surrounding lands. Yet local 
governing bodies do not have statutory authority 
to review these decisions. Even in areas where land 
use plans have been legally adopted, school 
districts are not required to locate new facilities in 
accordance with those plans. 



ions 1973. 



Montana Dnparlmcnl o( Revenue Undalei). Unpublished worksheet beinRUso 
preparation of the departments rw.-rity-Sixl/i Bieni.rj/ (ie/x.rt. publis 



Qctemher, 1974. 



Montana Department of Intergovernmenlal Relai 
of subdivision records to 1973 compiled 
PlanningOrganization. Helena. (Unpublished). 



ions. Undated. Computer 
by Flathead County A 



American law Institute, American Bar Associ. 
Reguldlion i}f Development — //, Study Materials 
November 15, 16, and 17. 1973. 



.Ed. 1974. "Flori 



-So-Quiel Revolu 



Montana Crop and Livestock Reporting Service, U.S. Department of Agriculture and 
Montana Department of Agriculture. 1974. "Number of Farms and Land m Farms. 
Montana." (lanuary 9). Helena. Montana. 

Montana Board of Equalization. 1966. 7"wen(y-Seconc/ Biennial Report of the 
Montana Slate Board of Equalization for the Period July 7, 7964 to June 30. 7966. 
Helena. 



Stuart. David G. Undated. Impact sot Large Recreational Developments Upon Semi- 
Private Environments: The Callatin Canyon Case Study. Center for Interdisciplinary 
Studies and Montana Agricultural Experiment Station, Montana State University. 
Bozeman. Montana. 

itry 462. Spring 1974. 
. 1974. Draft Report September 1974 Denver 



iiladelphia. Pennsylv. 



f'l Land Development Code: Tentative Draft J 



Tillson, Gregory D.; Youmans. Russell C: and Thomas. Marion D. 1972. local Tax 
Impact of Recreational Sub-Divisions Special Report 365, Oregon State University 
Extension Service, Corvallis. Oregon. 

Boulder Area Growth Study Commission. 1973- Public Finance and Optimum Size 
Business Conditions Vol, ^ oi ExploringOptions for the Future: A Studyof Growth in 
Boulder County 1206 Euclid Street. Boulder. Colorado 

Bradley. Richard C. 1973. The Costs of Urban Growth Observations and judgments 
Pikes Peak Area Council of Governments. 27 East Vermino. Colorado Sprmgs. 
Colorado. 



Heeler, David, and Bangs, Frank. 1972. "Local Planning and Development Control; 
One Bad Apple Spoils the Barrel." Pp. 27-41 in Land Use Controls Annual 7977. 
American Society of Planning Officials. 1313 E. 60th St., Chicago. Illinois. 



Raymond, George M 19 
Controls Annual 7977 
Chicago, Illinois. 



ling Officials. 1313 E. 



Gustafson. Neil C, and Cohan, Mark E. 1974. Population (viobility in the Upper 
Midwest: Trends. Prospects and Policies. Upper Midwest Council, Federal Reserve 
Bank Building, Minneapolis, Minnesota. 



U.S. Environmental Protection Agency. Undated. "Approval and Promulgation of 
Implementation Plans: Prevention of Significant Air Quality Deterioration." Title 40. 
Chapter I. Part 52. Draft revision. Washington. DC. 



Additional References 



Montana Departmen 

Staff of tfie Subcommittee on intergovernmental Reiations of the Comm 
Government Operations, U.S. Senate. 1972. Property Tax Administration ant 
ment Practices m Montar^a Wasfiington. D.C; Government Prmting Offic 

1974. Sates Ratio Report Helena. V 



Bosselman, Fred, and Callies, David. 1971 
Controls. Prepared for the Council or 
Office. Washington, D.C. 



iirs Study 



' Use 



Government Printing 

ng and Control." HUD Challenge- 

. . But it Failed." P/anning 39(8): 20. 

Rale 
p. 7. 

Oehser, Paul H. 1973. "The Adirondacks." American forests 
ed C. 1973. "Another Point of View." American forests. 79(10): 47-48. 
, 1717Massa- 



Adirondack Park Agency. 1972. Slate Land Master Plan. Ray Brook, New York. 
American Law Institute. 1972. A Model Land Development Code: Tentative Draft No. 



Philadelphia, Pennsylvania 
Philadelphia. Pennsylvania 
Philadelphia, Pennsylvania 



1 Model Land Development Code: Tentative Draft ^ 
I Model Land Development Code: Tentative Draft !■ 



Anonymous. 1974 "Florida's Environmental Land Water Management Act Implements 
Article 7 of the Proposed American Law Institute Model Code." AlP Newsletter, 9(1): 7-9. 
(January). 



Arnold. Robert K. 1971. "Economic Evaluation of Alternative Land LJses." Comments to 
Local Agency Formation Commission Statewide Conference, Monterey, California, 
November 18-19, 1971. Institute of Regional and Urban Studies. 610 University Ave,, Palo 



Arnold, Victor. 1974. "Staff Summary of the Commission on Minnesota's Future 
Activities." Paper presented at the quarterly meeting of the Commission on Minnesota's 
Future, July 19, 1974, Duluth, Minnesota. State Planning Agency. 550 Cedar St.. St. Paul, 



Myers, Phyllis. 1974. Slow Start in Paradise: An account of the development, passage, 
and implementation of state land-use legislation in Florida. The Conservation 
Foundation, 1717 Massachusetts Ave., N.W., Washington, D.C. 



Bair, Frederick H., |r. 1972. "New Wine in Old Bottle, Old Wine in New Bottles, No Wine in 
Some Bottles, and Several Good Ideas." Pp. 15-26 in land Use Controls Annual 1977 
American Society of Planning Officials, 1313 E. 60th St.. Chicago. Illinois. 

ural Resources Council. 20 Willow St.. 



Bosselman. Fred P, 1973. "Elements of State Land Use Planning." Pp. 183-187 In Soil 
Conservation Society of America. 1973. Natioml Land Use Policy: Obiectives. 
Component),. Implemeniation. Proceedings of a conference sponsored by the Society. 
November 27-29. 1972. in Des Moines. Iowa. 

Boulder Area Growth Study Commission. 1973. fudgmenls about Growth Vol. IX of 
Exploring Options for the Future: A Study of Growth in Boulder County. 1206 Euclid St., 
Boulder. Colorado. 

Boulder Area Growth Study Commission. 1973. Legal-Political Aspects Economic 
Incentives and Disincentives. Vol. VI. of Exploring Options for the Future: A Study oi 
Growth in Boulder County. 1206 Euclid St.. Boulder, Colorado. 



1 Wonderland,' 



riplinary Studies, Montana State Un 



MONTANA LAND USE POLICY STUDY 

APPENDIX A 

Statewide Subdivision Inventory: Summary 
of Methodology and Recommendations 



Energy Policy Emerges in a Growth State." Science. 184: 

iw (II); Florida is a Major Testing Ground." 5c/ence 782 

Colorado Legislative Council. 1973. Report to the Colorado General Assemb/v 
Recommentlations for 1974. Vol. 7. 

Economic Research Service, U.S. Department of Agriculture. 1970. Economic Impact oi 
Second-Home Communities — A Case Study of Lake Latonka. Pennsylvania Washington. 
D.C: Government Printing Office. 



Cilmore. lohn S.. and Duff, Mary K. 1973. Policy Analysis for Rural Development and 
Growtfi tiianagemenl in Colorado. Denver Research Institute, University of Denver, 
Denver, Colorado. 



. 1974. Slateo^aivaii Croivth 



Institute for Social Science Research. 1974. A Comparative Case Study of tfie Impact of 
Coal Deve/opmeni on itie Way of Life o/ People in the Coaf Areas o^ Eastern Montana and 
Nortfteaitern Wyoming. University of Montana, Missoula, Montana. 



1 Service. 1973. 
■isions in Utah 



Mark, Shelley M. 1973.' 



aii." State Covernrr 



1 Policy. 1973. Second Annual Report 116 West 



the Envi'ronn 
ment of Agri 



I J., and Rettig, R. Bruce. Undated. "Linkages Between the Economy and 
: An Analysis of Economic Growth in Clatsop County, Oregon." Depart- 
ural Economics. Oregon State University. Corvallis. Oregon. 



Rosner, Monroe. 1974. "Fiscal Impact Model: A Simulation Approach to Analyzing the 
Local Fiscal Impact of Second-Home Development," Paper presented at 40lh Annual 
National Planning Conference. May 15, 1974. American Society of Planning Officials 1313 
E. 60th St., Chicago, Illinois. 

! Law." State Government 46 



Sinclair, Robert O., and Meyer, Stephen B. 1972. Nonresident On 
Vermont. Bulletin 670, Agricultural Experiment Station, Un 
Burlington, Vermont. 



(Prepared by Redd Hamman, Research Assistant, 
Environmental Information Center) 

During the summer of 1974, an extensive research project 
focusing on Montana subdivision trends was undertaken by 
the Environmental Information Center, a Helena-based, 
environmental information and education group. The 
Environmental Quality Council has reviewed the data 
assembled by the EIC and relied upon the results of the 
research. 

Using definitions and recording procedures established in 
the Montana Subdivision and Platting Act, researchers 
examined subdivision data in 35 of Montana's 56 counties. 
Official subdivision plats and certificates of survey indicated 
that as of September 1974, a total of 334,017 acres statewide 
were subdivided into 114,085 lots. Inconsistencies in 
recording practices and the fact that land sales currently 
under contracts for deed are often not recorded, led the EIC 
researchers to estimate that as many as 500,000 acres might 
be subdivided in Montana. 

The standard procedure for each county inventory was to 
examine the subdivision plats on file in the Clerk and 
Recorder's Office and list the number of subdivisions per 
county, the filing dates of the plats, the number of lots, and 
the total acreage. 

Next, certificates of survey were examined for the same 
information. Not all certificates represent residential 
development so additional factors were considered. First a 
40-acre maximum lot size was designated to eliminate most 
agricultural land transactions. This limitation was ignored 
where a county had a separate subdivision file which 
included developments with 40-acre plus lot sizes. Any 
certificate obviously not representing residential develop- 
ment was eliminated. Examples of these were surveys of 
electrical substations, boundary redefinitions, and right of 
way surveys. But it should be noted that in most cases it was 
very difficult to determine what the certificate of survey 
actually represented. If a short statement of purpose were 
required by law this problem could be eliminated. Even with 
these precautions, some certificates of survey representing 
items other than residential development may have been 
tallied. But any such errors are far outweighed by the 
number of unrecorded subdivisions. These recording 
deficiencies mean that the actual development acreage 
greatly exceeds the recorded amount. 



U,S. Bureau of Reclamation and Center for Interdisciplinary Studies. 1974. Interim 
Summary of Recommendations Projecting Social and Municipal Service Needs and Cost 
and Revenue Calculations in Six Counties wfiere Major Coal Development is Anticipated 
Billings. Montana. (Draft). 

Williams. Anne S.. et al. Undated. Task Group Report Impacts of Residential and Second 



In an effort to obtain some information on non-recorded 
development, the final step in the inventory was to consult 
the assessor, reclassification officer or the county planning 
staff. These officers sometimes have additional information 



—76- 



from tax records or personal knowledge; in fact, several 
significant developments were discovered which would 
have been missed without their help. 

A major gap in the inventory process was caused by the 
nature of the contract for deed sale. The use of this contract 
buries many land transactions for years and makes 
information concerning contract for deed land transactions 
almost impossible to find. A law requiring a notice of deed 
to be filed at the Clerk and Recorder's Office within some 
specified time after Initiation of the transaction would allow 
up-to-date information to be compiled. 

A lesser problem could be solved by eliminating the acreage 
limitations on the legal definition of subdivision. Instead, 
subdivisions should be defined as divisions of land for 
residential use. This would clear up the present confusion 
concerning certificates of survey. If this recommendation 
were adopted residential development could be 
represented by subdivision plats — leaving certificates of 
survey to represent other kinds of development. A state- 
ment of purpose for the survey should be included. 

Four other ideas were generated during the survey. First, 
interest was shown by the county assessment and 
reclassification officials In requiring land price information 
to be recorded on subdivision plats and certificates of 



survey. This information would reduce greatly the appraisal 
problems involved in rapid land use changes. Tax 
assessment information could be provided with the 
application for development. 

Second, the Stillwater County Planning Board requires a 
Soil Conservation Service soil profile to be included with the 
development application. The SCS soil profile is a valuable 
information source. The profile is available only for areas 
where the Soil Conservation Service has completed surveys, 
but at some point soils information will be available for any 
development in the state. 

Third, a running count should be kept at the county level on 
subdivision activity. Once primary information is compiled, 
a periodic updating would be relatively simple. This 
information could provide data on cumulative impacts of 
subdivisions for the Department of Health, among other 
state agencies. 

Fourth, standardization of the filing instrument would help 
greatly in keeping information current. Data on acreage, 
soils, living units and other items could be handled more 
easily if a common format were required at the county level. 
Plat size could be standardized thus easing filing and 
handling of these instruments. 



Public Land Banking 

A Solution for Montana's 
Land Use Problems? 



Introduction 



by 
David Kinnard 
Legal Assistant 



One of the most tenacious ideas in American history was that every free 
person should be entitled to become a landowner or farmer. The concept 
of land ownership was steeped in thejeffersonian belief that society would 
be served best if individual landowners had unbridled freedom to do as 
they pleased with the land. The fundamentally laissez-faire policy of land 
use which characterized the nation's historical development still 
predominates today. With it has come an artificial shortage of land and a 
resulting leapfrog pattern of urban growth termed "urban sprawl." 

Traditional land use management tools, particularly zoning (the real 
workhorse of such tools), have proven inadequate — often resulting in 
more problems than solutions for ordering urban growth. Planning for 
orderly development requires that management tools be flexible enough 
to take into account the forces operating in the land market. Zoning has not 
provided the needed flexibility. A variety of alternate methods of land use 
control have been proposed, among them a system called public land 
banks. 



ypl^ L^nd Bdnk ! neither is the problem it is intended to solve. An excellent 

law journal article published in 1943, for example, sounds 
Not a New Idea hauntinglyfamiHar: 

Wildcat speculation has resulted in either 

In land banking, a governmental entity, which can be an premature and poorly planned subdivisions or the 

,., . . . , ... overdevelopments of land in concentrated areas. 

agency of the state, county, or metropolitan government or ,-^^„ ,^^,j!; ,„^ ,;„„ ^as been occasioned by 

an mdependent public corporation, is endowed with the streets lacking differential widths and arranged in a 

authority to acquire, hold, develop, and dispose of gridiron pattern to facilitate intensive land uses. 

developable land to controlthe future growth of the region Fluid transportation and crowded urban living 

and possibly exercise indirect control over the develop- conditions have caused a rapid flight of population 

ment of nearby regions. Land banking is not a new concept. to attractive outlying districts (2). 

A number of foreign governments have used land banking 

techniquessince the beginning of the 20th century, and the There are three distinct types of land banking. One is the 

concept was advocated extensively in the United States advance acquisition by governmental agencies of land for 

during the 1930s (1). If the idea of land banking is not new, traditional public uses such as parks, schools, and airports. 

—79— 



The basic intent here is to secure land for public needs and 
to save tax money by averting eleventh hour attempts to buy 
land from speculators. A second kind of land banking is the 
public acquisition of areas of critical environmental concern 
to preclude private development. Lastly, public agencies 
can acquire developable land in or near urban areas. 

Land banking is intended to achieve several specific goals. 
The first is to supplement existing land use regulatory 
programs by enabling the government to achieve specific 
and flexible control over the use of land to a degree 
impossible through regulations. In addition, land banking 
can enable the government to preserve important environ- 
mental qualities for the benefit of the people. 

A second goal is a guarantee that there will be adequate land 
at reasonable prices for use when needed. 

And finally, land banking can benefit the taxpayers in two 
ways: extending public services to an area before it is 
developed can result in high efficiency and economy 
consistent with planned growth; and government owner- 
ship and resale allows the return of the appreciation in land 
value from the public's investment in services. A simple 
measurement of the cost and benefits of advance land 
acquisition reveals what these goals can achieve as the thrust 
of a well-planned land banking system. The costs include 
the original capital used in the land purchase and the 
subsequent costs of management and administration. Costs 
also include lost taxes, even accounting for the increase In 
public services that would have been provided had the land 
been developed. Also, land banking undoubtedly affects 
the land market by the withholding land from the market — 
simply an offshoot of the goal to reduce land speculation. 

The benefits side of the coin reveals what can be accrued by 
a well-managed land banking system. The value of the lands 
in the bank can appreciate during the holding period while 
returning a profit on the interim use of land. The land bank 
also can produce some beneficial effects for adjacent lands 
during the holding period, both public and private. Another 
primary consideration is the circumvention of any costs of 
delay if an area could not be obtained when needed 
because of political or economic opposition, or if the area 
was developed in the interim for purposes incompatible 
with the planned public use. Foremost among the benefits, 
however, is that a land banking system can provide a 
mechanism for encouraging rational patterns of develop- 
ment while preserving environmental values. 

Experience with Land Banking 

Preeminent among efforts in public land banking has been 
the development and expansion of Stockholm, Sweden. 
Eighteen superbly planned new cities, each with a 
population of 250,000, have been built on land acquired by 
the land bank. Some of the land was held as long as 25 years 
and then developed only after mass transportation and 
other public facilities were available. Land banking in 
Sweden began in 1904 when the city inaugurated a policy of 
buying large areas of farm and forest land within a nine mile 
radius of the city center. The land bank is administered by a 
city-owned real estate company that operates like a private 



company but has the power of condemnation. When land is 
designated for acquisition, private owners are required to 
sell at market value. Legislation was passed allowing the 
corporation to acquire land needed for development 
before it had adopted specific plans for the area, thus aiding 
in keeping land prices reasonable. In most cases the land has 
been leased for farming until needed for development; the 
rent on the leases is used to pay off the interest on the 
borrowed capital. Rather than actually selling the land to be 
developed, the city leases the land under long-term 
contracts. As a result, almost 70 per cent of the dwellings on 
the outskirts of the city are built on leased land owned by 
the city. 

The Netherlands also has an advance land acquisition 
program dating back to the beginning of the century. Since 
then, the Netherlands has tried to anticipate the need for 
land and obtain it for the land bank. Nearly every 
municipality in the Netherlands has developed an active 
land banking program, which is in turn administered by an 
independent government department. The municipalities 
of The Hague and Amsterdam alone own more than 11,000 
acres. The success of Dutch municipalities in fostering 
orderly urban growth can be attributed to strict covenants 
or lease restrictions attached to land sold by the land banks, 
which specify intricate details of development that must be 
followed by the private developers of each parcel. 

Denmark, the United Kingdom, and Israel also have 
initiated programs to guide urban growth by the large-scale 
advance acquisition of land. However, the most persuasive 
evidence that land banking can work to shape orderly urban 
growth is provided by Canada's program, active since the 
1930s. 

A substantial number of municipalities in Canada have used 
a system of large-scale land ownership as a prime 
component of programs designed to control urban 
development. During the past two decades, Canada, like 
the United States, has experienced rapid escalation of urban 
land values and a scarcity of well-serviced developable land. 
Yet, beginning in the 1950s the federal agency involved in 
housing affairs began federal assistance programs for 
municipal land acquisitions under the National Housing 
Act. Inadequate funding and strong opposition by private 
developers prevented all but a limited implementation of 
the program. Canada's land banking program relies heavily 
on the interest and cooperation of the federal, provincial, 
and municipal governments. No national program of land 
banking is possible because planning in Canada essentially 
is a function of the nation's 10 provinces. All provinces 
except one have participated in some form of land banking. 
A general program to shape urban development is found in 
the midwestern provincial cities (3). 

Municipal land banking has been practiced in Alberta and 
Saskatchewan since the 1930s, when municipalities in the 
two provinces acquired a substantial amount of tax- 
delinquent land during the depression. The land was sub- 
divided and developed under programs similar to the 
Works Progress Administration and Civilian Conservation 
Corps in the U.S. during the depression. From this history 
evolved a strong municipal role in public land ownership 



—80— 



and development. Providing partially developed land at 
lov^er than market prices and encouraging orderly, low-cost 
land development reduced land inflation and has achieved 
a relatively high quality urban development process. 
Growth policies are directed toward integrated urban 
development by combined programs of land banking, 
staged development, annexation, and extensive 
transportation development. The legal basis of planning in 
the Province of Alberta has been the Planning Act of 1913, 
which provided for regional planning commissions to 
develop regional plansfor their areas, within a 50 mile radius 
of all major communities. A significant feature of the 
provincial legislation is its emphasis on orderly and 
economic land development. The Alberta Planning Act 
mandates that municipal plans must include: 



a schedule setting out the sequence in which 
specified areas of land may be developed or 
redeveloped and in which public services and 
facilities . . . should be provided in specified areas 
and proposals relating to the financing and 
programming of public development projects and 
capital works ... be undertaken (4). 

The act's emphasis on comprehensive planning and staged 
development in addition to its provision for municipal 
involvement in the planning process has thus provided a 
firm basis for development planning by the muncipalities. 

The planning system in Saskatchewan is less developed than 
that in Alberta, possibly because until the last 15 years, 
urbanization in Saskatchewan has been substantially less 
intense than in Alberta. The planning system of the 
provincial government of Saskatchewan is in the 
community planning branch of the Department of 
Municipal Affairs, which is essentially advisory. Saskatoon, 
Saskatchewan is the only municipality of either Alberta or 
Saskatchewan which acquired tax-delinquent land during 
the depression and initiated a land banking program which 
has continued to supply land for urban development. The 
land banking program has renewed itself over the years, as 
money from the sale of the original lands was used to 
purchase new land for development. Saskatoon's program 
has been so successful that approximately 80 percent of the 
residential development and 95 percent of the industrial 
development has taken place on city-owned land. The city's 
strong position in land development activities strengthens 
its ability to follow a long-range comprehensive master 
plan, which is administered as law. An important aspect of 
the land banking program in Saskatoon requires that land 
sold for development be sold to builders under a lease 
option agreement that requires construction within a year; 
hence, because the city retains title until the completion of 
construction, the land cannot be resold during this time. 
This device has served to prevent quick resale of 
developable land for speculation. 

The problems associated with the inefficient use of public 
services resulting from leapfrogging development, the long 
delays in providing public services to new residential areas, 
and the rising costs of residential land are similar problems 
in both Canada and the United States. The problem with 
application of land banking in the United States is that her 



cities are severely restrained in the range of allowable 
action; however, it might be possible for county or regional 
governments to carry out a land banking program similar to 
that practiced by Canadian municipalities. State 
organizations like New York's Urban Development 
Corporation or North Carolina's land assembly organiza- 
tion could supplement localized levels of government. 

Local governments in the United States lack a strong 
tradition of acquiring and reserving land as a means of 
guiding and controlling urban growth. Two factors have 
hindered the development of comprehensive land use 
policies in this country. First, governments have been 
reluctant to acquire land other than for specialized "public" 
purposes because of entrenched views on private land- 
owner rights. Second, governments have traditionally been 
unwilling to bear the cost of acquisition when the police 
power has been available for regulating land at minimal 
cost. The leading study of advance land acquisition in the 
United States indicates that about a third of the cities of over 
50,000 inhabitants carry on some kind of advance land 
acquisition (5). However, the programs aresmall and mostly 
concerned with school and parkland. A major precedent for 
land banking is in urban renewal programs, where large- 
scale land acquisition authority is based on the corrective 
purpose of eliminating urban blight rather than the creative 
purpose of encouraging a high quality environment. 
Another rather limited United States approach to land 
banking has been in acquisition of industrial land reserves. 
Confronted with the flight of industry and its workers to the 
suburbs, and the resultant weakening of the tax base, 
several cities have sought to curtail the exodus by providing 
cheap sites for industry. 

A good illustration of this approach is the Philadelphia 
Industrial Development Corporation, a nonprofit partner- 
ship of the city of Philadelphia and the Chamber of 
Commerce. The program, begun in 1959, now has a $19 
million development fund, and has enabled the city to 
replenish its industrial reserves while ensuring a constant 
supply of new industrial sites at reasonable cost, thereby 
attracting and holding industry. A similar program began in 
Milwaukee in 1964. To date, nearly three-fourths of the 
industrial reserve there is occupied by firms from the 
suburbs. In addition, while not yet having disposed of one- 
quarter of the acquired land, the city has regained half the 
costs of the program. 

Perhaps the most relevant United States experience with 
land banking has been the Puerto Rican program begun in 
1962. The Puerto Rican Land Administration Act established 
a public corporation empowered, among other things: 

To acquire real property, urban or rural, which may 
be kept in reserve towards facilitating . . . develop- 
ments of public work and social and economic 
welfare programs . . . which may be undertaken by 
the Administration itself, by the Commonwealth of 
Puerto Rico or its agencies, and by private persons 
for the benefit of the above mentioned public 
entities or of the community, including, but not 
limited to, housing and industrial development 
programs (6). 



In enacting this innovative legislation, the legislative 
assembly was concerned with wasteful urban land uses 
and their disorganizing impact on government programs. 
The land administration created under the act is authorized 
to acquire any real or personal property in any lawful 
manner, including purchase, purchase by option, or 
acquisition by lease, exchange, gift or eminent domain. The 
property so acquired may be kept in reserve to facilitate 
public works, including housing and industrial develop- 
ment programs, recreational and open space programs, and 
irrigation and reclamation programs. The only restriction on 
the maintenance of the land reserve is that lands acquired 
by condemnation for public works must be used within 15 
years. In disposing of its property, the land administration is 
authorized to establish any conditions and limitations 
regarding its use as it may deem necessary to ensure the 
fulfillment of the purposes of the act. As of June, 1970, the 
administration had acquired almost 24,000 acres, 6,100 sold 
for development under one or more public purposes. The 
land administration has been taken to court on the question 
of the constitutionality of the advance acquisition of land 
reserves for unspecified uses [Commonwealth of Puerto 
Rico V. Rosso 95 P.R.R. 488 (1967), app. dismissed 393 U.S. 14 
(1968)], and won. (This case will be discussed later in this 
report.) 

Some of the states also have begun to develop programs and 
entities to promote urban development associated with 
land banking. [See ///. Revised Stat. Ch. 67 1/2, Sec. 307.12 
(1971); Ky. Acts, Ch. 125 (1972); La. Revised Stat. Ann. Title 
33,Ch.21 (1973); N.y. Unconsol. taws. Sec. 6251 (1973); and 
Ohio Rev. Code Ann.. Ch. 349 (1972)]. Foremost among 
these is the New York Urban Development Corporation Act 
of 1968, as amended in 1973. The Urban Development 
Corporation (UDC) is a public benefit corporation with the 
legislated purpose of dealing with a broad range of urban 
problems — lack of civic facilities, shortage of housing, 
physical deterioration, and a lack of urban industrial and 
commercial development. The corporation has been given 
the power to acquire real estate by purchase, lease or 
condemnation. Unlike other development agencies, the 
UDC has the power both to initiate and to carry out its own 
programs, all of which can be accomplished through its 
powers to create subsidiary corporations, issue notes and 
bonds up to a billion dollars, and exempt its projects from 
local real estate taxes. The corporation has formulated plans 
for the acquisition of land and construction of three new 
communities, apparently believing that the development of 
new towns and the orderly expansion of existing 
communities is necessary to encourage orderly urban 
growth. 

A variation on the land banking system has been adopted by 
the Southampton Town Planning Board of Long Island, New 
York, for preservation of agricultural land on the island. The 
board saw the critical need for some means to turn back the 
steady decrease in Long Island's actively farmed land. 
Studies by the planning board led to the designation of an 
agricultural land reserve area on the local master plan. In 
order to implement this new program, two new planning 
concepts, an agricultural overlay district and the community 
land trust, were offered as tools to implement the program. 
The system allows a farmer to transfer the development 



potential to a limited portion of his total acreage if he 
transfers the remaining land to a public land trust. It is then 
possible for him to sell the limited acreage together with the 
increased development rights or keep them in existing use. 
The farmer and his heirs have the first option to lease the 
dedicated acreage for farming operations. The program is 
entirely voluntary on the farmer's part and is based on the 
cluster subdivision, transfer of development rights, and the 
community commons. The transfer of development rights is 
particularly noteworthy in that it permits several farmers to 
cooperate in preserving their farms and make large-scale 
farming operations possible. At the same time, 
agglomerating the development rights from several farms 
makes large and unified development possible. South- 
ampton, N.Y., hopes that this modified system of land 
banking will serve to preserve agricultural lands in the face 
of the intense demand for development. 

Because of the political, social, and economic institutions 
and traditions, which are the primary factor in determining a 
land use policy for a country, state or locality, not all systems 
of land use control are universally applicable. Certain 
similarities in the examples of experience with land 
banking, both in foreign countries and in the U.S. on a 
smaller scale, reveal the policy objectives that land banks 
can accomplish and the means for achieving them. 

Legal Restraints on 
Land Banking 

Many legal questions surround the implementation of land 
banking in the United States. The legal problems can be 
divided in two groups: first are those concerned with the 
acquisition of land for the program, and second are those 
concerning disposition of land for development under the 
program. 

One of the primary reasons for advance land acquisition for 
public projects derives partially from project enhanced 
values. In cases where a public project increases the value of 
adjacent lands which are subsequently taken for the 
expansion of the project, the property owner is entitled to 
receive compensation for any increases in the value of his 
property, particularly those relative to the proximity of the 
public project [U.S. v. 172.80 Acres, 350 F.2d 957 (1965)].Thus, 
it is less expensive in the long run for the public agency to 
have possession of the lands it might need for any project 
before it begins. Some of the earliest authority for advance 
land acquisition by the government is provided in State of 
Washington v. Clausen, 110 Wash. 525.. 188 Pac. 538 (1920), 
where the court sustained a land settlement act empower- 
ing the state to purchase, improve, and resell agricultural 
lands to homeowning farmers. Whether the government 
can engage in advance land acquisition for public projects 
not yet authorized is a subject of some debate, but the trend 
is in favor of such action; in New Windsor v. Ronan, 329 F. 
Supp. 1286 (1971), for example. In its decision the court 
stated: 

The state may take more than It Is positive it will 
need; it may, given the limits of human foresight. 



—82— 



take land for which a need is reasonably predicted 
but which eventually proves unnecessary for its 
project purpose (p. 1292). 

The only case thus far concerning a broad system of land 
banking is Commonwealth v. Rosso, discussed earlier, in 
which the Supreme Court of Puerto Rico unanimously 
upheld legislation providing for land banking to promote 
efficient use of land. The court held that the Land 
Administration Act was constitutional in all respects, and 
was "legitimate use of public power in protection of that 
which a community of 2,712,808 human beings existing in a 
territory of 3,435 square miles sees as a most precious value 
for survival: vital space." The court made an elaborate 
enumeration of the social, economic, and moral 
justifications for its decision. It made reference to the legis- 
lative finding that only a publicly constituted body with 
broad powers of land acqusition and regulation could assist 
the commonwealth in providing an orderly pattern of 
development and in meeting its responsibility to preserve 
the health, safety, and welfare of its citizens. In the 
discussion of legal issues, the court emphasized that strict 
limitations on governmental authority would unnecessarily 
and unwisely exalt private property in the face of common 
needs. The court found no reason to distinguish between 
the concepts of public use and public or social benefit. 
Believing that the legislature might have reasonably 
considered the reservation of land until some unspecified 
time in the future and uses for it to be of social benefit, the 
court refused to interfere with the decision of the legislature 
in establishing the land banking system. The decision was 
appealed to the U.S. Supreme Court, but was dismissed 
without dissent on the grounds that the case did not present 
a substantial federal question (393 U.S. 14). 

In most cases, a land banking system would acquire needed 
lands by purchase from the landowner. Proponents of land 
banking believe that the authority to acquire land by the 
exercise of the power of eminent domain would be crucial 
to the operation of a land bank in cases where private 
owners either refused to sell their lands or demanded 
unjustifiably high prices for the land. The proponents feel 
that the mere existence of the power of condemnation 
would minimize the number of such cases. The question of 
the legality of condemnation for land banking systems is 
untested in the courts and therefore deserves some careful 
study. 

The doctrine of "public use," which is subject to conflicting 
interpretations from state to state, is the major legal obstacle 
in land banking. The most important limitation on the 
condemnation power is the requirement that private 
property betaken only for a public use. While the public use 
requirement is well established in the law, its meaning is not. 
Rather than laying out general definitions of the term the 
courts have, for the most part, attempted to determine the 
meaning on a case-by-case basis. Before the turn of the 
century, the power of eminent domain was limited by the 
requirement that the property be put to use within a very 
few traditional functions such as the public roads, schools, 
and buildings. Soon however, came a willingness on the part 
of the courts to reshape the public use doctrine to make it 
more responsive to the changing scope of governmental 



authority. A portion of this change is noticeable in the 
court's treatment of a modified form of land banking, urban 
redevelopment. Perhaps the most noteworthy case in this 
respect is the Supreme Court's 1954 decision in the case of 
Berman v. Parker, 348 U.S. 26, which upheld the consti- 
tutionality of the District of Columbia Redevelopment Act 
of 1945. The act authorized condemnation for the purpose 
of "redevelopment of blighted territory . . . and the 
prevention, reduction, or elimination of blighting factors or 
causes of blight." The court upheld the condemnation of 
land to be transferred to a private developer for the 
implementation of the urban development project by 
saying: 

The means of executing the project are for 
Congress and Conress alone to determine, once 
the public purpose has been established. The 
public end may be as well or better served through 
an agency of private enterprise than through a 
department of government — or so the Congress 
might conclude. We cannot say that public owner- 
ship is the sole method of promoting the public 
purpose of community redevelopment projects. 
(At p. 33-34). 

Redevelopment of non-blighted areas has also been up- 
held. In Cannata v. New York, 182 N.E.2d 395 (1962), 
condemnation was authorized for the purpose of 
reclaiming and redeveloping economically deficient areas 
which impaired the sound growth of the community. The 
use of eminent domain for a land banking system was 
upheld specifically in the case discussed earlier, 
Commonwealth v. Rosso. The Puerto Rican Land 
Administration Act allowed for acquiring of land by 
purchase and eminent domain to be held in reserve for an 
unspecified time for an unspecified future use. The Supeme 
Court of Puerto Rico held that the condemnation of private 
property without a particular plan for the land and a clear 
public necessity for doing so did not conflict with the public 
use doctrine of the Puerto Rican or the U.S. Constitutions. 
The court stated that public use is synonymous with social 
benefit, social interest and the common good, which were 
the ultimate purposes of the act. 

Whether the Montana courts would take this view of 
governmental authority and social benefit is unclear. 
Historically, the legislature has prescribed a list of public 
uses under which the right of eminent domain can be 
exercised (Sec. 93-9902 R.C.M., 1947). Subsection 2 of that 
section permits, among others, "all other public uses 
authorized by the legislative assembly of the state." It can be 
hypothesized that if the legislature established a system of 
land banking which inluded the power to use eminent 
domain as a public use, that such power might then be 
upheld by the Montana courts. Ultimately, whether the 
taking of property for the stated goals of a land banking 
system constitutes a public use will depend largely whether 
the courts would concur with a legislative finding that such 
activity is beneficial to the community. 

The second area of legal question relating to land banking 
concerns the ultimate disposition of the banked lands for 
development. Two major problems surrounding land bank 



—83- 



dispositions are: dispositions that are inconsistent with land 
bank goals as defined by statute, and dispositions that 
exclude certain uses or groups from an area in conflict with 
general governmental policies. When considering a land 
banking program, the effectiveness of judicial review is 
important, both in determining the desirability of land 
banking and the actual form of that system (7). 

Administration and Finance 
Of a Land Banking System 

To accomplish its objectives, a public land bank must have 
the financial resources and legal authority to purchase or 
condemn land in a broad geographic area. It also must be 
relatively autonomous, and largely insulated from state and 
local politics and pressure groups, in order to make public 
decisions on land use. 

Legal, political, and fiscal considerations would limit 
severely the proper functioning of municipal or county 
level land banking systems. Few cities or counties In 
Montana would be in a financial situation sound enough to 
attempt land banking except on the most limited scale. 
Moreover, because many land use decisions tend to affect 
regions rather than localities, a broad system of land 
banking by counties and municipalities would be inherently 
unrepresentative. 

It also seems questionable whether state goverment would 
be any better qualified to operate a public land bank. In 
Montana, few state agencies possess the autonomy and 
financial capability to manage a land banking system. The 
creation of a special agency to manage a land bank appears 
to be ruled out by the political history of similar proposals. It 
also would seem unwise to place the land bank within the 
jurisdiction of an existing state agency such as the Depart- 
ment of Intergovernmental Relations. In fact, any agency 
where the director serves at the pleasure of the governor 
could be hindered by political pressure. In addition, 
because coordinated, long-term planning Is crucial to the 
success of a land bank, the possibility that entirely new 
agency heads would be appointed with each change in 
administration weighs against the practicality of a state 
agency form of land bank. 

Perhaps the most frequently utilized and successful 
approach to problems with interjurisdictional ramifications 
has been the creation of special purpose public 
corporations. Operating on a regional basis, they are often 
more able to meet area-wide problems successfully. While 
public corporations are agents of the state, they are not 
necessarily state agencies. Public corporations are able to 
act independently in personnel, accounting, financial 
management, and legal services mattters. In addition, 
because the corporation is not elected or responsible to the 
voters, it is relatively untied to partisan politics and tends to 
be more autonomous than any state or local agency. A 
public corporation also can gain access to a greater variety 
of financing alternatives than a state agency. Finally, a public 
corporation also can be authorized to form subsidiaries and 
affiliated nonprofit corporations to carry out specific 
projects such as developing land for future use, generating 



revenue for future acquisition and encouraging desirable 
development. The concept of public corporation is quite 
novel in Montana. 

To serve effectively, a land bank must have a considerable 
land inventory at its disposal. In view of the long-term goals 
involved and the amount of money required. It is unlikely 
that a bank could begin with all of the land necessary to 
realize its objectives. The initial funding for the land bank 
might come from a legislatively appropriated special fund 
that would be replenished as land is leased or sold. The 
capability to borrow against an assured future source of 
revenue also would be essential if the land bank were to 
begin an effective program of advance land acquisition to 
meet immediate land use objectives. Eventually a land bank 
would become self-sustaining. 



Proposals for Land Banking 
In the United States 

Many proposals recommending that state governments 
enact legislation allowing governmental entities to engage 
in advance land acquisition are cited in the American Law 
Institute Model Land Development Code. On land banking, 
the code proposes: 

The acquisition of interests in land for the purpose 
of facilitating future planning to maintain a public 
land reserve, and the holding and disposition 
thereof in accordance with the purpose of this 
Code, are hereby declared to be for the public 
purpose of achieving the land policy and land 
planning objectives of this State whether or not at 
the time of acquisition or expenditure of funds for 
acquisition or maintenance any particular future 
use, public or private, is contemplated for the land. 
Appropriations for, issuance of bonds for, taxation 
for a land reserve system, acquisition of land for a 
reserve by gift, purchase or condemnation, 
management of land so acquired, and disposition 
of land so acquired, are hereby declared to be for a 
valid public purpose (8). 

The Colorado Land Use Commission, In its 1973 report 
titled, A Land Use Program For Colorado, recommended 
the establishment of a land banking system in Colorado to 
coordinate land use control. The proposal recommended 
the creation of a public corporation with all the powers and 
authority necessary for a well-managed system of land 
banking. A bill intended to establish the system failed to pass 
Colorado's 1974 legislative session. 



Conclusion 



The land of Montana should be seen as a resource to be 
conserved and developed for its value in supporting the 
basic social and economic well-being of her citizens. To this 
end, government could assert primary responsibility, as It 
does in education and other services, for controlling the 
mechanisms of the land market and for ensuring its 
maximum public utility as it relates to public services and 



—84- 



community development. The public ownership of land, by 
a land banking system, could be one facet of a solution for 
Montana's current land use problems. Yet, land banking is 
not without its own problems. A land banking program 
requires an institution with historical perspective beyond 
partisan political reach and influence peddling. It could be 
one component of a total system of land use planning and 
regulation, but so far, Montana has demonstrated little 
desire for these things. Most land banking experience has 
been in controlling urban growth and development. As Is 
true with other untried techniques of controlling develop- 
ment, land banking will probably have quite different 
effects than either its proponents or opponents have fore- 
cast. A valid evaluation of the actual effects of a land banking 
system can result only from experimentation. 



rule 23, Sec. 311f(s), as amended (1964). 



Additional References 



American Law Institute Model Land Development Code, Commenatry (1974). 



References Cited 



I Canadian land banking was taken from Parson- 
and Budke, Harriet, "Canadian Land Banks," Planning Advisory Service Ref 
American Society of Planning Officials (1972). 

4. Revised Statutes of Alberta, Ch. 276, S. 95{c) (IV) (V). 

5. Advance Lana Acquisition by Local Governments. D. Shoup and R. Mack, 



k Land Use Program lor Colorado. Colorado Land Use Commission (1973)- 



-85- 



Development Rights Transfer 

An Analysis 



Introduction 



by 
David Kinnard 
Legal Assistant 



Land use control generally has relied on established systems such as zoning, 
subdivision regulations, and building codes. Recently, however, these 
systems have come under increasing criticism, not only from the 
landowners affected, but from concerned citizens feeling that established 
techniques do not meet many present and emerging needs, particularly, 
the protection of the environment. Therefore, a search has been going on 
for ways to achieve land use control while permitting effective organization 
of relationships between men and women and their land that will be 
acceptable to the majority of citizens. 

In order to solve some of these difficult problems, a system of Transferable 
Development Rights (TDRs) has been suggested. To its proponents, the 
TDR system seems to be regarded as an instant solution to complex land use 
problems and policies. In fact, the system is not simple and more 
importantly has not yet been tried or tested in the courts. 



The Severable Nature of 
Development Rights 



ownership, but actually is created by and derived from 
societal or legislative authority. The proponents of this 
system believe that TDRs can be based on the sameconepts 
and legal precedents as zoning. Yet to be utilized as 
planning tools, development rights must be distinguished 
"Development rights" are the rights of landowners to f^om the traditional conceptions of land and development 

change the uses of their property, usually by building values. A recent essay describes the inherent differences 

structures or allowing certain activities. Development rights between the TDR system and traditional land use 

are severable, that is, capable of being divided into legally management tools: 

independent rights and obligations, analogous to the 

historical treatment of mineral and surface rights. As a -,) The right to develop land is quantifiable and a 

concept, the term development right is applied two differ- transferable incident of land ownership (much 

ent ways. The first, involving the purchase or condemnation like mineral or sub-surface rights) and 

of particular property rights by government (such as scenic separable from the normal ownership- 

easements), already has been utilized. The second, property right, the latter largely defined in 

involving a system for the transfer of development rights in terms of present uses. 

an administratively created market, is new and relatively 

untested. 2) This development right may be severed or 

separated from the residual rights of present 
The TDR system is based on the premise that the right to use, in the same fashion that mineral or sub- 

develop a tract of land is not inherent in the land or in its surface rights may be severed. 



3) Under governmentally established guide- 
lines, development rights may be transferred 
in specific quantities, from one parcel of land 
to another parcel not necessarily contiguous, 
but in the same development rights district or 
zone (1). 

The proposed TDR system would require the preparation of 
a master plan for the concerned area, involving much more 
rigorous research and analysis than present master plans 
under the zoning system, and the setting of reasonable 
community development goals. The boundaries of a TDR 
district would be based on a mixture of natural factors 
(floodways, geologic hazard areas, groundwater recharge) 



and planning considerations (transportation linkages, 
public works extensions). Ultimately, the final master plan 
would reflect the development capacity, potential, and 
rationale for every land parcel in the district. Zoing and 
planning would continue in effect. 

A very simplified TDR district could comprise three tracts of 
100 acres each, owned by A, B, and C. Zoning and planning 
considerations might determine that the tract owned by A 
should support no more than 25 residential units, B's land 
could support 100 units, and C's tract could support 175 
units. With permissible density thus determined, the TDRs 
must be allocated to each property owner. Various formulas 
might be used for the allocation. Here are two: 



FORMULA 1 (2) 
The decision could be made to allocate total development rights evenly over the district, so many per acre. On the 300 total 
acres owned by A, B, and C, 300 development units are possible, although the densities vary between the tracts. Here are the 
results of an allocation on a per acre basis: 



Devel. Rights Density Allowed (units) 



Comments 



A 100 100 25 A holds 75 un- 

usable or surplus 
rights 

B 100 100 100 B holds rights 

necessary for allow- 
able development 
density 

C 100 100 175 C lacks 75 rights 

100 300 needed for devel- 

opment to allow- 
able density 

After the allocation of development rights, the owners can do as they wish, within the allowable density. Owner A could 
develop at any density up to 25 units and sell his surplus rights, or he might retain all 100 rights although he could use only 25. 
The other owners also could decide among several courses of action depending on their allocation of rights. 

FORMULA 2 (2) 
The decision could be made that a per acre allocation is inequitable because of differences in the nature of the land. A's 100 
acres might be largely swamp; he perhaps never has had the development expectations of C, who owns 100 acres well-suited to 
development on a variety of grounds. If it were decided that this situation should be reflected in the allocation of the 300 
development rights, (say) 70 percent of them — or 210 — could be allocated on a per capita basis. The remaining 30 percent — 
or 90 rights — could be allocated on the basis of amenability of the land to development. 

Many procedures are possible to allocate the 90 amenability development rights among A, B, and C. A's land, for instance, 
could be ranked 2 on a 10-point scale of development amenability. B's land could be ranked 5, and C's ranked 8. The sum of the 
ratings 15, can be made into the denominator of a weighted share fraction over which would be placed each individual rating, 
thus: A, 2/15 (weighted share) times 90 (available rights keyed to amenability) equals 12 rights; B, 5/15 times 90 equals 30 rights; 
C, 8/15 times 90 equals 48 rights. Other formulas are possible. Allocation of all 300 development rights would proceed as 
follows under the foregoing approach: 



General 
D.R.' 


Amenability 
D.R. 


Total 
D.R. 


Allowed 
Density 


Comments 


70 


12 


82 


25 


A holds 57 surplus 
rights 


70 


30 


100 


100 


B holds sufficient 
rights 


70 
210 


90 


118 
300 


175 
300 


C lacks 57 rights to 
achieve allowable 
density 



C. 100 

TOTALS 
•D.R. means development rights 



Obviously the impact of amenability as a factor in the allocation of rights could be lessened by making it applicable to only 10 
percent of' the available rights instead of 30 percent. Rights also might be established to mature over a period of time; some 
could be useable presently, or in 5, 10 or 15 years. Thus property owners whose lands were scheduled for belated develop- 
ment could be allocated a larger share of early maturing rights so that they could sell them and receive early remuneration 
Commercial and industrial rights might also receive special treatment based on their direct Imk to neighboring residential 
development. 



The Applications of TDR 

The actual use of the TDR system has been very limited. In 
1968, the City of New York adopted a zoning resolution (Art. 
VII, Ch. 4, Ss: 74-79, 791-793) which permits the transfer of a 
landmark's air rights to a non-contiguous lot (3). Air rights 
are one form of a development right; an historic landmark 
in downtown Manhattan, for instance, may be on a lot that is 
zoned for 50 stories, yet, to encourage the preservation of 
the landmark the property owner is allowed by the 
resolution to transfer his unused air rights to another lot 
elsewhere in the area and thereby build a higher building 
than he would have otherwise been allowed. Yet, the 
program has not figured in any transaction (4). 

The town of Southampton in Suffolk County, New York has 
adopted a local zoning ordinance (#26, Sec. 2-40-30) which 
permits an optional transfer of development rights to 
preserve prime agricultural lands. In certain cases farmers 
are allowed to transfer the development potential of their 
lands to another tract in a different district which permits a 
higher density. The farmland can then become part of a 
municipal land trust into perpetuity. The farmer can 
continue to farm on the land for a nominal rent, while 
benefiting from the development taking place on the 
second tract. 

State legislatures also have shown an interest in the TDR 
program. In 1971, the Illinois legislature approved an 
extensive revision of that state's historical preservation act 
to permit the use of development rights transfer (III. Rev. 
Stat. Ch. 24, S 11-48.2-1A). In 1972, the Maryland Senate 
considered a bill authorizing local governments to create 
transfer districts in which the development rights could be 
sold. The New Jersey legislature also considered a develop- 
ment rights transfer bill in 1973 to preserve prime agri- 
cultural land. The latter two bills eventually were killed. 
Early this year the Colorado legislature considered HB 1,116, 
a bill providing the authority and procedures for a TDR 
program, but it was postponed in committee. More 
recently, a report from the Oregon Executive Department 
to the Joint Interim Legislative Committee on Land LJse 
suggested using the transfer or acquisition of development 
rights to solve Oregon's land development problems. 

The fact that no state has enacted significant transferable 
development rights legislation can be ascribed to the 
numerous problems inherent in the still-theoretical system 
of TDRs. 



The Taking Issue 



The legal questions concerning TDRs are substantially the 
same as those concerning traditional land use zoning and 
subdivision regulations. 



The first question is the constitutional doctrine involving the 
"taking issue." The Fifth Amendment declares that ". . . nor 
shall private property be taken for public use without just 
compensation." It has been the trend in many courts to 
assume that "just compensation" means fair market value 
even when it includes speculative values and the impact of 
publicly financed facilities such as highways. As often inter- 
preted, zoning or other regulations which prevent a reason- 
able economic return from land, or which benefit the com- 
munity rather than the property owner, have been 
considered a so-called taking requiring public 
compensation. 

A second legal question arises from the doctrine of the 
Fourteenth Amendment which states that ". . . No state shall 
make or enforce any law which shall . . . deny to any person 
within its jurisdiction the equal protection of the laws." In 
order to achieve equal protection of the laws, owners of 
similar tracts of land must be treated similarly, or at least, not 
be subject to unreasonable and arbitrary discrimination. 

Because there is a serious question of the legal validity of a 
TDR system, legal precedents have been studied and cited 
to form a strong justification for the legality of a TDR system 
(2). Bulwark of this particular argument lies in the historical 
legal treatment of the erection of mill dams, the formation 
of drainage and irrigation districts, and the regulation of oil 
and gas production in recent times. 

The mill dam acts early in U.S. history provided that a private 
landowner along a stream could erect a dam for water 
power, with certain special rights arising. The pond behind 
the dam was allowed to flood adjacent landowners without 
compensation to them. The state justified this "taking" since 
the water power was for grain mills, which were required by 
state regulation to grind the grain of all comers, with a 
statutory share as a fee. This was the granting of the power of 
eminent domain to a private individual to further a resource 
use, with regulated participation guaranteed to the public. 
It appears that the multiplier effect of water power on the 
employment and industrial base of the state served to 
advance the public use concept enough to justify eminent 
domain in the hands of individuals. The courts developed 
the doctrine that this was a reasonable police power for the 
adjustment and protection of correlative rightsof individual 
owners that arose from a shared relation to a common 
resource. 

The legislative acts establishing major drainage and 
irrigation districts were linked by the premise that a majority 
of property owners could vote, under statutory authoriza- 
tion and court supervision, to impose land use goals on a 
possibly objecting minority. Within the districts individual 
properties sharing a common resource were joined in a 
unit. Individual landowner rights in the tracts involved were 



diminished radically in the furtherance of resource 
development. The courts upheld this common resource 
theory; perhaps the best judicial interpretation was 
presented by the Supreme Court in Fallbrook Irrigation 
District V. Bradley. 162 U.S. 112: 

If it be essential or material for the prosperity of the 
community, and if the improvement be one in 
which all the landowners have to a certain extent a 
common interest, and the improvement cannot be 
accomplished without the concurrence of all or 
nearly all of such owners by reason of the peculiar 
natural condition of the tract sought to be 
reclaimed, then such reclamation may be made 
and the land rendered useful to all and at their joint 
expense. In such case the absolute right of each 
individual owner of land must yield to a certain 
extent or be modified by corresponding rights on 
the part of other owners for what is declared upon 
the whole to be for the public benefit, (p. 163). 

It is noteworthy in this case that ownership and the use of 
the affected land remained with the respective owners. 
Land under a TDR system likewise would reamin in the 
hands of its owners. 

In connection with the TDR system, perhaps the most 
analogous precedent in law arose from the development of 
oil and gas resources. Oil and gas commonly are found 
together in an extensive pool or field that can underlie 
numerous surface property holdings. Early production 
practices in this country were cutthroat, each property 
owner attempting to drain as much oil and gas from his 
neighbors' property as possible. Unfortunately, the 
courts encouraged this practice by characterizing oil and 
gas as fugitive resources — practically asking for hasty and 
wasteful production methods. About 1900 states began 
regulating oil and gas production with controls that 
included compulsory pooling and unitization. In pooling, 
the number and spacing of wells, and the rates of 
production, are controlled. Unitization is the operation of 
the entire field or pool as an entity, without regard to 
patterns of surface ownership. Obviously, such police 
power regulation directly confronted individual economic 
motivations for resource development. Yet public interest 
of the highest form was involved in the prevention of 
massive wastes and of the destruction of valuable resources, 
and thus, the courts upheld most of the state-imposed oil 
exploitation controls as a valid exercise of the police power 
(5). Some believe that these legal precedents could defend 
againt any challenge that would be brought against a TDR 
system. But the intricacies of the system might bring it under 
different body of judicial precedent. 

Owners of protected land in a TDR system would have more 
development rights than they would be permitted to use 
under the community plan. Conversely, owners in areas 
designated for intensive development would have to 
purchase additional rights if they wished to develop. With 
the sale of unused rights the owners of protected land 
would receive compensation. It is impossible to know 
whether the amount received for the sale of development 
rights would equal the returns on unrestricted develop- 



ment. Nor is it clear that the resulting redistribution of 
development rights and profits would be equitable. 
Whether constitutional challenges based on any inequity 
would be upheld in the courts depends on the magnitude of 
the reduction in economic return that the courts would 
deem confiscatory. 

Challenges to the TDR system also might arise from the 
constitutional doctrine of equal protection. Developers and 
landowners within transfer districts could claim that they 
were denied equal protection if densities permitted outside 
the district were more liberal than those within the district. 
In Associated Home Builders of the Greater East Bay v. City 
of Walnut Creek. 94 Cal. Rptr. 630, the court declared that a 
legislative classification (in this case, a park dedication 
requirement) meets equal protection requirements if it is 
rational. If the TDR district were delineated by docu- 
mented economic and planning studies demonstrating that 
the area selected as a transfer district could reasonably be 
expected to become a focal point of future development, 
the district might be upheld as a rational distinction. 
Landowners and developers also could claim a denial of 
equal protection if the price paid by the builders for the 
development rights were ultimately passed on to the 
purchasers. Defending this challenge would require careful 
consideration of the magnitude of the community's land 
use problems. The legal and economic consequences of 
these redistributions in the TDR system are deserving of 
further study. 

Perhaps the most severe constitutional test for develop- 
ment rights transfer would be a challenge that the 
coordination between the transfer program and the 
community plan was unreasonable and arbitrary. Too often, 
comprehensive plans are little more than mixtures of 
prevailing land uses, representing more of the economic 
assumptions of development process than a rigorous 
analysis of need and potential and a statement of strategies 
to achieve community land use goals. It appears obvious 
that the key element in the effective operation of a TDR 
system is its integration with a truly comprehensive plan. 

TDR and The Market 

It is critical to determine whether there is sufficient demand 
for development in an area proposed as a transfer district to 
create an adequate market for development rights. To do 
this, market studies must addressing past and projected land 
absorption rates, existing or proposed public improve- 
ments within the area, and demographic patterns. Then, 
when an area is established as a likely target for intensive 
development, a transfer program must be deigned to permit 
developers to build profitably under its controls. Excessively 
stringent densities or development controls offering little 
financial advantage to the developer probably would be 
self-defeating. Secondly, the quantification of develop- 
ment rights in non-urban areas requires not only the 
measurement of density-height relationships (as in the case 
of cities), but also intensity and use. For example, pasture 
land not only must be assessed for its capability for non-agri- 
cultural uses, it must also be analyzed for its animal carrying 
capacity and other factors related to its non-urban uses. 



-90- 



The central argument of the TDR proponents is that the 
development potential of private property is partially a 
community asset which should serve the needs of the com- 
munity. Transferable development rights would vastly 
expand the economic and planning leverage of the govern- 
ment over private land use decisions. The goals of a TDR 
program are the prevention of resource wastes, the 
protection of values by wise land use management, and the 
protection of the traditional and highly prized property 
rights of landowners. In its emphasis for the free trading of 
development rights, the TDR system would extend the 
individualism of the market, as well as compensating those 
for whom development was restricted. Yet, it must be 
stressed that TDRs are experimental; untested in the 
marketplace and the courts. To date, the few applications of 
development rights transfer actually attempted have dealt 
with localized problems in specialized areas. Thoroughly 
researched, analyzed and debated, however, a system of 
TDR could do much to solve some of the land use problems 
facing Montana with equitable regard for the rights of 
property owners. 



References Cited 



Wcngert. Norman and Graham, Thomas, Tramferable Development Rights: A Viabie 
Technique tor Controlling Land Use Changes? presented to the 87lh Annual 
Research Conference of the Colorado State University Experiment Station (February 
1974). p. 3. 

Carmichael, Donald M., "Transferable Development Rights as a Basis for Land Use 
Conirols," in Exploring Options for the future. Part VI, pp. 33 and 34, Boulder Area 
Growth Study Commission (November 1973). 

ork City," 36 taw and Contemporary 



n "The Chicago Plan: 
,," 55 Harvard Law Rev, 
in air rights transfer ar 



5. Carmrchael. "Transferable Development Rights a 



Additional References 



"Development Rights Transfer i 



' 82 Yale Law journal 338 (1972). 



Public Participation and 
Environmental Quality"^ 

by 
Rick Applegate** 
Research Assistant 

"As the planet we live on becomes more and more crowded, more 
wrinkled by worries and complexities, more pressed by needs, the earth's 
valuables increasingly have to be shared. The work of government as 
manager of the public's resources becomes one of its major tasks .... But 
the people have lost effective control over these decisions to the 
professional management of bureaucracies. These structures, so largely 
independent of Congress, the President, and the courts, have a natural 
tendency to believe that they can decide for themselves. This attitude, that 

the experts 'know best,' is held by sincere and well-intentioned men 

The great danger is that an entrenched professional bureaucracy will be 
shortsighted in its perception of the public good. It may see only the needs 
of the next decade when planning for a century is essential. It may see only 
local demands when national needs demand consideration. It may see 
where immediate economic gain lies but fail to see the values of 'non- 
economic' uses. It may prove unable to adapt to changes, to innovate, to 
create." 

— Charles A. Reich (1) 



Introduction 



Citizen participation in decisions affecting environmental 
quality*** hasa history perhaps nearly as long as theancient 
traditions of communal assembly credited to prehistoric 
people of India and Africa and later institutionalized by the 
Greeks. Examples from the American past include a 1691 
town meeting in Lynn, Massachusetts, where concern was 
expressed about cutting "or carrying away any wood or any 
part of the town's Commons," and about the proper 
restraint of pigs (2). 



Especially since the 1960s, however, citizen participation in 
environmental decisions has become a point of major 
political concern. For many reasons, citizens are expressing 
redoubled insistence that they be included in the decisions 
that affect the quality of their environment and that of their 
children — a demand only slightly diminished during the 
early 1970s and one that may be renewed as a byproduct of 
the Watergate affair. 



Here available and promising avenues for public 
participation in Montana are explored and some Important 
future directions for increasing its effectiveness are 
suggested. The private sector, apart from but in addition to 
the three branches of state government and local govern- 
ment, is considered on the theory that many private deci- 
sions have powerful impacts on the public today and 
tomorrow — decisions as enormous as many made by 
government. Citizen access to the news media also is 
discussed for its importance in expressing public concerns. 

The literature on citizen participation in environmental 
decisions already is substantial (3). Fruitful avenues are 
being suggested for a greater public role in environmental 
quality decisions. Even with the substantial amount that has 
been written and accomplished concerning citizen 
participation, however, it is not clear whether it is yet a fully 
effective force in environmental policies and decisions (4). 

'Copyright 1974 by Rick Applegate. 
••Mr, Applegate has worked closely with citizen public interest and environmental 

groups for several years. The views expressed here are "■ •'■ ' •"- 

;ironmental Quality Council or its staff. 



GOVERNMENT — THE LEGISLATIVE BRANCH 



Timely public participation and involvement in the 
Montana legislative branch is crucial. The most obvious 
citizen involvement comes during elections. To increase 
voter turnout, many groups conduct registration and get- 
out-the-vote campaigns. Serious consideration has been 
given to allowing poll-booth registration on election day. 
Residency requirements have been changed to decrease 
the number of persons disenfranchised by their own 
mobility — students are permitted to vote either at their 
home or university address — although during the last 
general election some county clerks reportedly 
discouraged students trying to register. 

However important the election may be in forming the 
body of legislative opinion and guiding the content of legis- 
lation, many other aspects of public participation need the 
serious attention of those concerned with full citizen 
participation. These include the rules of legislative 
operation (adequate and timely notice of legislative 
proceedings, the frequency of sessions, the duration of 
sessions); the structure of committee meetings (the form of 
committee reports, the time frame for action on committee 
reports); the publicity given legislative resolutions; the 
openness of pre-filed legislative bills; and the disclosure of 
potential conflicts of interest. 

Legislative Operation 

Bills and Rules 

Immediately after — if not before — the election results are 
tallied, several events occur that have a direct bearing on the 
amount and kind of citizen participation in the legislature. 
For example, there is a scramble among legislators-elect to 
line up leadership positions (floor leaders, committee 
chairmanships); legislative drafting requests are received by 
the Legislative Council; and therulesgoverningthecoming 
session begin to take shape. 

The publicity given draft bills and bill drafting requests has 
been the subject of some controversy. The Legislative 
Council routinely receives many such requests from 
legislators asking the staff to draft specific pieces of 
legislation. The drafting requests do not mean the legislator 
will introduce the drafted bill, or even any version of it. For 
this reason, most legislators do not oppose opening these 
individual request files (5). Because materials are involved 
that are clearly in draft form, some arguments also can be 
drawn against the opening of the files. Cataloging the 
requests and keeping the files open seems most 
appropriate, however. 

The legislative rules, usually adopted in the early hours of 
the legislative session, generally are not subject to formal 
public scrutiny. Notice is not given and public hearings are 
not held. Yet the rules can have a substantial impact on the 
pace and openness of the session. For example, in the 43rd 
Legislative Assembly there was a three-day public notice 



requirement for committee hearings on specific bills. 
FHowever, the requirement was not construed to mean three 
full 24-hour periods, so a committee could comply with the 
rule by posting an 8:00 a.m., Friday meeting notice at 4:30 
p.m. the preceding Wednesday. In other words, the actual 
meeting notice could be — and often was — as little as 40 
hours. The result of such short notice was the hasty 
preparation of committee testimony, if not the outright 
circumscription of some testimony. 

Rules for the 44th Legislative Assembly, written for annual 
sessions, were thrown into some chaos by the electorate's 
decision in November, 1974, to limit the assemblies to every 
other year. A subcommittee assigned to the original task of 
rewriting the rules solicited and circulated comment on the 
proposed rules among legislators but failed to involve the 
public in the debate. 

Frequency of Sessions 

The frequency of legislative sessions has been a concern 
since territorial days in Montana. Montana's Organic Act 
provided for annual sessions of 40 days, but the Congress 
required in 1868 that all territorial legislatures were to meet 
only once every two years (biennially). The 1889 Montana 
Constitution specified that the legislature was to meet for no 
more than 60 days, every odd-numbered year (6). 

The 1972 Montana Constitutional Convention devoted 
considerable time to questions concerning both the 
structure and frequency of the legislature and its sessions. 
After much debate the delegates voted to abandon biennial 
sessions in favor of annual 60-day sessions. A controversial 
question whether the Montana legislature should be 
bicameral or unicameral was su bmitted to the voters and the 
traditional bicameral structure was retained. In the same 
election, the new Constitution — with its provision for 
annual legislative sessions — was approved. 

However, in 1974, several groups used the Constitution's 
revised initiative provisions (see below) to place the 
question on the ballot again. By a Constitutional 
amendment vote of 110,587 to 104,581, Montanans rejected 
annual sessions and reinstated biennial assemblies. 

The issue may come up again. A recent poll in Missoula 
indicated that as many as 16 percent of the voters may have 
cast their ballots mistakenly (7). The original vote margin was 
only 2.8 percent. If a substantial voting error can be 
substantiated there are indications that some legislators will 
try to place the question on the ballot again for a clearer 
expression of public opinion. 

Duration of Sessions 

The length of time available for legislative deliberation isan 
important aspect of public participation in environmental 
decisions. Typically, during legislative sessions, committee 
hearings, floor debates, and other activities are not patient. 
Some citizens wishing to testify about proposed legislation 
are bewildered when they are allotted 5 or 10 minutes to 



speak — or perhaps none at all. The final weeks of the 
session can be a virtual endurance race. 

The Constitutional Convention tried to ensure flexibility in 
the length of sessions by providing that sessions could be 
called anytime (presumably even the day after the end of 
the regular session), and that the assembly could extend the 
length of any session held after the regular session. 

The biennial session amendment did not change those 
provisions, but it did extend the duration of the regular 
session (now every two years) from 60 to 90 days. Whether 
the legislature will employ the available 90 days remains to 
be seen. It also is unclear whether the 90-day biennial 
session will provide th same deliberation and public 
participation opportunities of short annual sessions. 

Biennial sessions encourage a lengthy lame duck period for 
legislators. The time available for pre-session work — about 
two months from election day to early January for the 
preparation of bills and handling of committee assign- 
ments — is critically short compared with the length of the 
post-session period: 19 months until the next session. 
Except for the demands of crises that might require a special 
session, legislators will have little incentive to lend much 
attention to their work. Hence citizens may discover that 
biennial sessions discourage efforts to make government 
anticipate as well as respond to the complex problems 
facing Montana. 

Interim LeRislative Activity 

when the legislature met annually, bills could be held over 
in the interim between sessions. The interim period was a 
good opportunity for careful discussion of pending legis- 
lation by citizens and legislators. With biennial legislative 
meetings, there are no hold-over bills. However, the period 
between sessions still may be important. 

Single-member legislative districts present novel oppor- 
tunities for small scale district meetings with citizens. Some 
legislators already have scheuled district meetings to get 
help and advice. 

Whether the period between legislative sessions will be 
utilized for deliberation and debate or wasted is up to the 
legislature. The 19 month post-session period during which 
legislators are serving their elected terms seems too 
important to be allowed to remain idle. 

Committee Activity 

The 1972 Montana Constitution required government to 
adopt a new openness in legislative deliberations. Prior to 
the new Constitution, legislative committees would hear 
public testimony and then dismiss the press and the public, 
debate the bills, and vote in secret. Thus, a key segment of 
legislative deliberation was not on public record or open to 
public scrutiny. It was a classic case of government in 
darkness. Article V, Sec. 10 (3) of the 1972 Constitution 
charges that: "The sessions of the legislature and of the 
committee of the whole, all committee meetings, and all 
hearings shall be open to the public." 

The new Constitution also requires that legislative votes be 



made public. Article V, Sec. 11 (2) provides: "Every vote of 
each member of the legislature on each substantive 
question in the legislature, in any committee, or in 
committee of the whole shall be recorded and made public. 
On final passage, the vote shall be taken by ayes and noes 
and the names entered on the journal." 

The mechanics of a typical committee meeting can make the 
new openness rule somewhat less effective than theory 
promises. Sometimes committees use all the meeting time 
to hear testimony on the scheduled bills, and wait to take 
action on the bills until as much as several days later. Citizen 
groups that desire to have their presence felt may miss 
important committee deliberations on the testimony. 

One way to help resolve this difficulty could be to 
restructure legislative and committee sessions. The current 
practice is that committees meet in the morning and the 
legislature is in full session in the afternoons. Some 
committees then meet again on adjournment — which 
could be any time from 1 :30 p.m. to 9 p.m. Perhaps having 
the committees and the sessions meet on alternative days 
would allow more time for testimony. Deliberations could 
be conducted immediately following public testimony (or 
could be postponed intentionally rather than for lack of 
time), and the committees even could take breaks. 

After the committee has heard testimony, a variety of 
actions can be taken on a bill. Under1974session joint rules, 
a committee-approved bill had to be on the members' desks 
for one full day before it could be debated. In the House, 
under its rules, a committee-approved bill automatically 
was placed on second reading for debate. A bill killed by 
committee was posted for 24 hours, during which time any 
member could indicate in writing his desire to debate the 
bill. If a house member desired to debate it, the bill would 
be placed on second reading; if not, some time would be 
saved by voting on the committee report without debate. If 
this rule is adopted again, a careful watch on these postings 
is an important part of public participation in the legis- 
lature. A less visible procedure could make it next to 
impossible to follow a bill. 

Resolutions 

There are two types of legislative resolutions — both 
basically legislative expressions of intent and sentiment. 
Joint Resolutions have to be approved by both houses. They 
must be introduced by the bill introduction deadline and 
must be transmitted to the opposite house by the transmittal 
deadline. In the 43rd legislature these deadlines were 18 
days and 40 days respectively. Joint resolutions also can be 
used to amend or repeal executive agency administrative 
rules. 

Simple resolutions can be introduced anytime and need be 
adopted only by one house to become effective. Because 
they are handled very informally, the progress of a simple 
resolution through the legislature frequently eludes citizen 
attention. Simple resolutions have not been subject to 
mandatory public notice and hearing requirements. If 
adopted, a simple resolution can operate as a significant 
policy club over an agency. At least one legislator has urged 
that the use of resolutions be limited. Unless simple 



resolutions are subject to strict public notice and hearing 
requirements, their use should be abandoned. 

Disclosure and 
Conflicts of interest 

Financial disclosure and conflict of interest are two of the 
most complex questions facing the legislature. In addition, 
both questions have an important bearing on the effective- 
ness of public participation in environmental decision 
making because environmental concerns often involve 
large economic effects with serious potential for conflicts of 
interest. 

Disclosure laws can deter unethical conduct, enable the 
public to more closely examine the affairs of candidatesand 
officials, and enable the assessment of conflicts of interest. 
The states use various approaches to disclosure and conflicts 
of interest (8). Fewer than half of the states have disclosure 
laws. Montana has no disclosure law, a weak statute on 
conflict of interest, and a rule requiring legislators to declare 
a conflict and subsequently abstain from voting on the 
matter in question. The rule is rarely used, however. The 
Montana Constitution requires: "The legislature shall 
provide a code of ethics prohibiting conflict between public 
duty and private interest for members of the legislature and 
all state and local off icers and employees" (9). The provision 
has not been implemented fully as of this writing. 

All states with disclosure laws require legislators to make 
disclosures — many also cover elected officials and 
appointees whose salaries exceed a specified amount. Some 
disclosure laws cover the spouse and minor children and 
one state law covers principal employers. 

Among the state laws disclosure usually pertains to income, 
accounts, trusts, business interests, directorships, fees for 
services, honoraria, gifts, real estate, stocks, bonds, 
commercial paper and capital gains. Debtors and creditors 
typically are not disclosed under the existing state laws. 

Although the business of disclosure is difficult — often 
involving thorny questions of privacy — it is an important 
way to stimulate openness and public confidence in govern- 
ment. Disclosure laws can be and are enforced in the states, 
but conflict of interest requirements present very difficult 
problems when applied to specific cases of alleged conflict. 
They will probably remain unenforceable without the 
evolution of even stricter disclosure laws. 

Referendum 

One form of what has been called citizen legislation is the 
referendum. A referendum question Is placed on the ballot 
by vote of the legislature. Use of the process usually 
indicates that the legislature wants a reading of public 
sentiment. However, citizens also can undertake referenda 
to review legislative enactments — except on appropria- 
tion bills — by acquiring signatures of 5 percent of the 
people in a third of the legislative districts with a total 



number representing at least 5 percent of the qualified 
voters statewide (10). This must be accomplished within six 
months of adjournment. 

Electors can suspend the effect of a legislative enactment by 
submitting petitions signed by at least 15 percent of the 
qualified electors in a majority of the state's legislative 
districts. The disputed act then would not take effect unless 
and until approved at the election. 

State constitutional amendments also are ratified or 
defeated by this procedure (11). Amendments are placed on 
the ballot by a two-thirds vote of the legislature and can be 
adopted or killed by majority vote. Two constitutional 
amendments adopted in the most recent general election 
had some direct relation to environmental quality issues. 
The first converted a legislatively created trust fund — 
fueled by a tax of one-half percent on the gross value of 
certain non-renewable resources — to an "irrevocable" 
trust. The trust fund now can be accumulated without the 
danger of a raid on the fund by some future session of the 
legislature. 

The environmental connection of the second amendment is 
more tenuous. The 1972 Constitutional Convention 
completely abolished "sovereign immunity" — a doctrine 
that protects state and local government from suit in cases of 
negligence or other wrong. The adopted amendment will 
allow the legislature to reinstate the immunity in specific 
cases by 2/3 vote. In other jurisdictions, there have been 
efforts to block citizen lawsuits against agencies based on 
the doctrine of sovereign immunity. They have been largely 
unsuccessful (12). Careful attention to legislative efforts of 
reinstatement of the doctrine is essential because blanket 
reinstatement could remove some existing citizen remedies 
for wrongful governmental conduct. 

Whether these referenda were adequately explained to the 
public before the election is unclear. Perhaps increasing the 
level of public debate and insisting on full press coverage 
would help assure that the people understand the full impli- 
cations of proposed constitutional amendments and other 
issues placed on the ballot. 

Initiative 

The initiative is a form of direct citizen lawmaking. The1972 
Constitution made It easier for initiatives to be enacted by 
popular vote. Article 3, Sec. 4 provides that an initiative must 
be signed by 5 percent of the qualified electors in one-third 
or more of the state house districts, a total including 5 
percent of all qualified electors in the state; and cannot be 
challenged as to sufficiency after the election is held (13). 

The state Constitution itself can be amended by initiative, 
but the requirements are more stringent than for enacting a 
statute by initiative. Petitions containing the full text of the 
amendment must be submitted with the signatures of 10 
percent of the qualified electors of the state. That number 
must include 10 percent of the electors in each of 2/5 of the 
state legislative districts. The signatures are checked by the 
Secretary of State and the amendment is then published for 
two months before the regular statewide election (14). 



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There have been two attempts at constitutional amend- 
ment initiatives since the passage of the 1972 Constitution. 
The successful initiative amended the Constitution to create 
a 90 day biennial session. The other initiative effort — to 
express displeasure with the legislature's ratification of the 
proposed Equal Rights Amendment — was stricken from the 
ballot by the state Supreme Court because it failed to 
present a question that properly could be resolved by public 
vote (15). 



Conclusion 

Reform of the legislative process to increase the scope and 



effectiveness of citizen participation could entail some slow 
down in the lawmaking procedure. Although legislative 
efficiency always can be improved, the worthwhile goals of 
legislative speed and careful deliberation probably are 
mutually exclusive. Volumes of legislation — and who can 
say which bills are unnecessary or unneeded without full 
consideration — must be disposed of in 90 days. On a mere 
$4,6 million budget,* the legislature is supposed to maintain 
itself as the source and overseer of executive power and 
policy. Alternative legislative structures and procedures 
increasingly may become necessary to insure effective 
citizen participation in the Montana legislature. 

'Less than 1 percent of the executive branch budget. 



GOVERNMENT— THE JUDICIAL BRANCH 



The judicial branch is often overlooked as an important 
arena for citizen participation. However, the jury was 
historically an effort to establish some degree of citizen 
participation in judicial proceedings, juries in medieval 
times were "panels of neighbors — knowing busybodies, 
who perhaps had personal knowledge of the case" (16). 
Even when the role of the jury changed to a largely impartial 
one and the rules of evidence expanded, the primary effort 
was to include a panel of representative and reasonable 
citizens to weigh the evidence and render the verdict. 

Recently a number of proposals have been advanced for 
greater citizen involvement in the judicial branch. These 
include easing citizen access to the courts; tightening 
standards for judicial review of agency action; allowing 
alternatives for lawyer fees and costs; and even creating 
special environmental courts. 

The Importance and 
Extent of Citizen 
Environmental Litigation 

Citizen lawsuits, especially those concerning environ- 
mental protection, are rarely without controversy. 
Challenging agency and private decision making in the 
courts (17) is a relatively new approach for Montana citizen 
groups, which generally have confined their environ- 
mental advocacy to the legislative and executive branches. 

Montana citizens undertook a variety of lawsuits on 
environmental issues in 1973-74. Two subdivisions and a 
National Park Service road were enjoined; the Federal 
Bureau of Reclamation's industrial water marketing 
program, a coal strip mine, a weather modification program, 
and a major rail spur were challenged; and the Gallatin 
River was declared navigable — all the result of citizen 
action in the judiciary. 

These cases raised important questions about federal and 



state agency compliance with environmental laws. For 
example, Department of Health noncompliance with the 
state Water Quality Act and its own departmental 
regulations was alleged in a suit against Karst Village sub- 
division in Gallatin County. The court compelled the 
department to complete certain studies before taking 
action on the subdivision. 

Subdividers usually are required to furnish land for public 
parks. An attempt by the Karst developer to dedicate the 
Gallatin River channel as a public park was turned aside 
(after the county commissioners went so far as to accept the 
deal) when citizen groups convinced the court thatthe river 
is legally navigable and therefore already public land. In 
essence, the Karst decisions illustrate the value of citizen 
group vigilance in correcting erroneous and incomplete 
decisions by state and county government. Another action, 
again pending against the State Department of the Health, 
raises points of law similar to those in Karst. 

This type of litigation serves a number of important 
purposes. It puts agencies on notice that they are not free to 
avoid compliance with applicable laws and regulations. It 
helps assure full implementation of legislative enactments. 
It keeps the incessant developer and private interest 
pressure from overwhelming agency decision making. It 
serves an educational function too, clarifying and creating 
awareness of environmental requirements and deficiencies 
in state law. 



Access to the Courts 

By now, there seems little doubt that public interest groups 
and individual citizens are finding it easier to win "standing" 
in federal courts (18). This nationwide trend toward 
liberalized standing, however is yet to be felt in Montana 
state case law. 

The judicial determination of standing basically concerns 
determination of the proper parties in a legal dispute. In 
reaching conclusions on standing the courts typically try to 



assure the adversity of the parties and the adequacy of their 
ability to represent the issues in a case. 

The most recent federal case on standing was the first direct 
U.S. Supreme Court ruling on this issue in an environ- 
mental lawsuit (19). In the case, Sierra Club v. Morton, the 
court held 4 to 3 that the Sierra Club had failed to show that 
the interests of its members would be damaged by the 
governmental action sought to be enjoined. The court siad: 

petitioner did not allege that the challenged 
development would affect the club or its members 
in their activities, or that they used [the area], but 
maintained that the project would adversely 
change the area's aesthetics and ecology .... A 
person has standing to seek judicial review under 
the Administrative Procedures Act only if he can 
show that he himself has suffered or will suffer 
injury, whether economic or otherwise. In this 
case, where petitioner asserted no individualized 
harm to itself or its members, it lacked standing to 
maintain the action (20). 

Thus the court, by a slim majority, refused to expand the 
typical requirements for standing: personal stake in the 
outcome (21) and injury in fact (22) affecting an interestthat 
"may reflect aesthetic, conservational, and recreational 
values" (23). In so doing, the court rejected the club's 
contention that it should be allowed to sue on behalf of the 
public based solely on its long-standing commitment to 
conservation and environmental quality (24). 

Three members of the court disagreed, as have a number of 
recent law review comments (25). The minority would have 
granted standing to parties who have a "meaningful 
relation" to the values they are seeking to defend; who will 
"adequately represent" those values; and who can "speak 
knowingly" concerning them (26). 

Access to the courts was considered by the Montana 
legislature in 1971 and 1973. Each time, a bill to grant 
increased standing has passed onehouseonlyto bekilled in 
the other. Yet another bill will probably be introduced in 
1974 and, if so, some important points should be kept in 
mind. Legal standing basically concerns who has a right to 
be heard in court (27). The law should assure a genuine case 
or controversy; genuinely adversary parties; and that the 
parties will speak knowledgeably on the matters at issue. To 
accomplish these objectives, however, it is not clear 
whether it is necessary that one who has a history of 
principled stands on related environmental issues must 
demonstrate a personal interest in the controversy as well. 
The Supreme Court, In its recent decision, did not attempt 
to establish that the Sierra Club would be an ineffective 
plaintiff. 

Class Action Suits 



class action lawsuits are not new, but they are undergoing 
some new difficulties in the federal courts. These 
difficulties, including stricter class pre-suit notification 
requirements in federal cases, probably will lead to 
increasing use of state courts for class action suits. 



Class action typically is taken to obtain relief on behalf of a 
large group of similarly affected persons who could not 
afford individually to seek judicial resolution. Each 
individual member of the class may be subject to a relatively 
small injury —too small to justify individual legal action; but 
the damage may be widespread and quite costly overall. The 
only really effective remedy in such case is to permit a small 
group to sue on behalf of the large group. Montana law 
provides for class actions in the Rules of Civil Procedure (28). 

There are four requisite characteristics of a class action: (1) 
the parties are too numerous to be joined; (2) there exists a 
reasonably defineable class; (3) there is a common, 
justiciable interest within the class; and (4) the plaintiffs 
adequately would represent the class. Having met these 
prerequisites, a small group can sue for an award that is to be 
made to the large class of affected individuals. 

Adverse impacts may not be sufficient to permit the hiring 
of lawyers and the pursuit of legal action — say , where there 
is widespread air pollution damage to home gardens, 
vegetation, or housing fixtures. In that case, maintaining a 
viable class action remedy is essential if there is to be any 
remedy at all. Reviewing the sufficiency of Montana law on 
class actions should be a high priority (29). 

intervention 

when plaintiffs and defendants have been accepted by the 
court, there is always the chance that someone else who has 
an interest in the outcome may want to participate. He may 
not wish to leave it to the court-accepted parties to argue 
the issues. One way to accomplish this is the motion for 
intervention. 

Typically, intervention is made difficult because the judicial 
process functions best when small groups present and 
defend their cases in an adversary setting. Control of the 
lawsuit also must be maintained by each party. However, 
where clear interests and injuries to property rights may not 
be represented, there is a means for additional parties to 
join the action. 

In general, public interest intervention is being liberalized 
by court interpretation along lines similar to the evolution 
of standing. This process could be expedited by legislative 
enactment (30). 

Amicus Curiae 

Another way to participate in court action without accruing 
all the expenses charged to a full party is the submission of 
an amicus curiae (friend of the court) brief (31). Lawyers and 
sometimes, laymen can assist the court at its discretion by 
submitting information or conducting studies. Typically, 
when asked, the court will consider whether the proposed 
submission of information would be timely, helpful, and 
relevant. Consent of the parties to the pending legal action 
often helps. Through amicus, citizen groups can help assure 
that relevant opinions on matters of law are placed before 
courts hearing cases having public interest implications. 

For example, the Chemehuevi Tribe in Arizona recently 
argued before the U.S. Supreme Court that the Federal 
Power Act requires a Federal Power Commission license for 



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coal-fired generating plants using federal water. Several 
Montana groups felt that the court should have information 
on the northern plains coal situation in addition to the data 
on the southwest submitted by the tribe. Accordingly, the 
groups hired a lawyer, secured the consent of the parties in 
the case, and submitted an amicus brief. 

The chief limitation of amicus intervention is that the friend 
of the court must take the case as is. Suggesting additional 
causes of action or remedies usually is not permitted. And 
ordinarily, a friend of the court does not qualify for 
compensation for court costs, and is not allowed to petition 
for a rehearing or appeal. 

Judicial Review of 
Agency Action 

Standing to sue or intervene is a threshold determination 
only. Once the public interest group or citizen is admitted 
to court, a host of other questions arise. One of the most 
important is the extent of judicial review of the agency 
action. How rigorously will a court scrutinize an agency 
decision and what will lead the court to overturn or remand 
a decision? 

Standards for judicial review of rules and contested cases in 
Montana are found in the state Administrative Procedures 
Act. Basically, in contested cases, these standards require 
the exhaustion of administrative remedies and commence- 
ment of the action within 30 days of the decision. They also 
provide for submission of the hearing record, additional 
evidence, a non-jury trial, and a restricted scope of judicial 
review: 

The court shall not substitute Its judgment for that 
of the agency as to the weight of the evidence on 
questions of fact. The court may affirm the decision 
of the agency or remand the case for further 
proceedings. The court may reverse or modify the 
decision if substantial rights of the appellant have 
been prejudiced because the administrative 
findings, inferences, conclusions or decisions are: 
(a) in violation of constitutional or statutory 
provisions; (b) in excess of the statutory authority 
of the agency; (c) made upon unlawful procedure; 
(d) affected by other error of law; (e) clearly 
erroneous in view of the reliable, probative, and 
substantial evidence on the whole record; (f) 
arbitrary or capricious or characterized by abuse of 
discretion or clearly unwarranted exercise of 
discretion; or (g) because findings of fact, upon 
issues essential to the decision, were not made 
although requested (32). 

The judicial review provisions for rules allow a declaratory 
judgment petition, the decision on which is reviewable in 
the same manner as decisions on contested cases (33). Of 
course, the Administrative Procedures Act is not and should 
not be the only route for a party to seek judicial review of 
agency action. Nonetheless, where the act does apply, it 
does not encourage — and may unduly limit — public 
interest lawsuits. 



The typical federal judicial review asks whether agency 
action is arbitrary or capricious. For decisions based on 
adjudicatory hearings, the standard of substantial evidence 
sometimes is applied; that is, the agency's decision will not 
be overturned if it is supported by substantial evidence. 
Neither of these typical approaches involves a searching 
review of the agency's deliberations. 

A standard of judicial review stricter and more substantive 
than any that preceded it, was announced in the Calvert 
Cliffs case (34). It combined the arbitrariness determination 
with the announcement that a court could reverse the 
agency's decision if it "clearly gave insufficient weight to 
environmental values." Under Sierra Club v. Froehike, an 
even more probing standard was announced(35). In that 
case, the court examined the agency decision under what 
has come to be known as the "substantial inquiry" or "hard 
look" standard. Under this standard, the court asks whether 
the agency acted within its statutory authority; whether the 
decision was arbitrary, capricious, abusive of discretion, or 
otherwise not in accordance with the law; whether the 
decision was based on consideration of all relevant factors; 
and whether there was an error of judgment. Probing 
standards of review should be an important part of public 
scrutiny of agency actions (36). 

Burden of Proof 

The burden of proof in public interest litigation is as 
important as the judicial review standard. In fact, the two 
mesh in critical respects. Traditionally, the burden of proof 
rests with the plaintiffs. This makes sense in most typical 
litigation. But, a recent federal district court case in Texas 
offers a persuasive rationale for shifting the traditional 
burden of proof — even though the decision was reversed 
recently by the Fifth Circuit Court of Appeals (37). 

The district court took notice of the substantial resources 
available to federal agencies — expert staff, time, files, 
reports, etc. — and contrasted these to the very limited 
resources available to the public interest plaintiffs. 
Recognizing this, the court required of the plaintiffs only a 
prima facie showing that a statute — in this case, the 
National Environmental Policy Act — was being, or was in 
danger of being, violated. At that point, the burden of proof 
would be shifted to the agency and, using all the resources 
only it could muster, the agency would be required to 
establish its substantial compliance with the pertinent act: 

Once a prima facie showing has been made that 
the federal agency has failed to adhere to the 
requirements of NEPA, the burden must, as a 
general rule, be laid upon this same agency which 
has the labor and public resources to make the 
proper environmental assessment and support it 
by a preponderance of the evidence contained in 
the impact statement (38). 

This shift in the burden of proof has yet to be widely 
accepted; however, it has been advocated elsewhere and 
for solid reasons. There is simply no way that public interest 
groups will be able, by themselves, to stay effectively 
involved in the increasing number of agency decisions 
unless the agency is bound by some action forcing require- 



merits. The National Environmental Policy Act, and the 
nearly identical Montana Environmental Policy Act, were 
adopted to force certain kinds of action in the 
administrative realm — detailed studies and public 
justifications on major actions with significant environ- 
mental effects (39). Now the same principle needs to be 
backed up by a similar requirement in the judicial branch. 
Enacting a statute prescribing the district court approach to 
burden of proof would fill this need. 

Lawyer's Fees and 
Court Costs 

Lawsuits will remain extremely expensive for public interest 
groups regardless of changes in standing, intervention and 
judicial review. The cost of a typical federal district court 
case, from temporary restraining order through the full 
hearing on the merits, can run easily to five figures. Thus, 
citizen litigation can be carried out in only a few of even the 
most important cases which arise. 

As a general rule, state and federal courts will not award 
lawyer's fees to the prevailing party. There are exceptions to 
this general rule, including overriding circumstances, when 
required by the interests of justice, or when the defendant 
has acted in bad faith. An important exception for public 
interest litigation is that which allows a private attorney 
general to receive a fee award. Generally, this exception 
operates when a citizen is bringing a non-monetary action 
seeking to enforce a statute that does not explicitly prohibit 
the award of lawyer's fees. Formalizing this exception in 
Montana law would help encourage judicial review of 
public interest issues. 

Recently, in a federal district court, public interest groups 
were awarded lawyer's fees in a case which they lost (40). 
The court noted that the citizen groups had provided an 
important public service by calling attention to the 
significant resource problems occasioned by hasty 
development near San Antonio, Texas. The suit was brought 
under the National Environmental Policy Act to enjoin 
construction of a new town partially funded by the Depart- 
ment of Housing and Urban Development (HUD). Spurred 
by the injunction, HUD prepared impact statements, held 
numerous meetings with public agencies, including a local 
water quality advisory board, ironed out some difficulties in 
the project — including water conflicts with an adjacent city 
— and approved the new town. After the proper procedure 
had been followed, the court dismissed the injunction. 

The dispute with HUD in Texas was a typical environmental 
case. It was an expensive but necessary way to enforce 
statutes that otherwise would be ignored or violated. A 
strong argument can be made that citizen groups 
expending considerable time, effort, and money for action- 
forcing environmental litigation should have some chance 
to recover costs (41). 

Under the new Montana Constitution, the person whose 
land is being condemned in an eminent domain action is 
awarded lawyer's fees and costs when he or she is the 
prevailing party. This provision indicates a legislative policy 



of protecting the rights of individual property owners. The 
same concern could be demonstrated for the important 
function of public interest groups seeking to enforce state 
statutes. 

The new federal Water Pollution Control Act contains 
language that should be considered for enactment into law 
in Montana: "The court, in issuing any final order in any 
action brought pursuant to this section, may award costs of 
litigation (including reasonable attorney and expert witness 
fees) to any party, whenever the court determines such 
award is appropriate . . ." (42). Alternatively, the legislature 
could specify the types of public interest enforcement 
actions for which lawyer's fees and costs will be awarded. 

Citizen Enforcement 

The Refuse Act of 1899 suggests an additional incentive for 
citizen involvement in the enforcement of environmental 
laws (43). Section 13 of the act provides that it is illegal to dis- 
charge refuse matter into navigable waters or their 
tributaries without a permit. Upon conviction for violation, 
the section stipulates that the fine is set between $500 and 
$2,500, "one half of the said fine to be paid to the person or 
persons giving information which shall lead to conviction." 

Although it is an incentive to enlist the help of citizenry in 
enforcement of pollution laws, this kind of statute has not 
been very popular lately among legislatures. 

Environmental Courts 

Some have argued that many of the issues raised in environ- 
mental lawsuits are beyond the grasp of the judiciary. The 
argument is that the courts have small budgets and staffs, 
and are generally unfamiliar with the complex and some- 
times technical issues found in pollution suits. Special courts 
with interdisciplinary staffs of researchers have been 
proposed to deal with technical questions. Alternatively, a 
second-level administrative review procedure, such as a 
quasi-judicial oversight board, has been recommended. 

Such environmental courts have yet to be utilized to any 
great extent. Whether their general use would be beneficial 
is open to question. Courts have a number of avenues open 
to recruit information and opinion including the experts 
testifying on behalf of the parties, amicus curiae brief, etc. If 
available remedies prove insufficient, perhaps some 
grappling with alternatives would help. 

The Federal Water Pollution Control Act required the 
President to study the feasibility of an environmental court 
or court system having jurisdiction over environmental 
matters (44). The report, which considers various 
alternatives including environmental courts, has been 
completed and referred to Congress. It opposes additions to 
the court system because of the jurisdictional, procedural 
and caseload difficulties they would entail. 

New Avenues for Citizen LitiRation 

Recently, a number of novel legal theories have been 
argued in environmental litigation. Without analyzingthem 
in detail, it may be sufficient to say that quo warranto (45), 



the public trust (46), Ninth Amendment unenumerated 
rights (47), the rights of ecosystems (48), primary juris- 
diction (49), and substantive environmental policy act 
requirements (50) should receive attention in Montana state 
courts as they have in federal courts. Citizen litigation is 



here to stay. The real question is whether it can become an 
effective tool for increased public participation. Stronger 
legal briefs on novel environmental concepts is one way to 
strengthen this possibility. 



GOVERNMENT— THE EXECUTIVE BRANCH 



Most discussion of citizen participation has focused on the 
burgeoning administrative agencies. And, by any measure, 
executive branch agencies have come in for some harsh 
criticism (5). It was this criticism, in part, that led the 1972 
Montana Constitutional Convention to adopt a consti- 
tutional provision on the right of public participation in 
government. Although it is not a self-executing provision, it 
provides the legislature and the executive branch an 
opportunity to reassess citizen participation possibilities. 
Courts, too, can use the provision as guidance for 
interpreting legislative implementation efforts: "The public 
has the right to expect governmental agencies to afford such 
reasonable opportunities for citizen participation in the 
operation of the agencies prior to the final decision as may 
be provided by law" (52). 

There have been two statutory efforts in recent years to 
reorganize and standardize the procedures of the executive 
branch agencies in Montana. They are the Executive 
Reorganization Act and the Administrative Procedures Act, 
both passed in 1971. 

Executive Reorganization 

In a number of ways, executive reorganization promised 
more than It delivered (53). It sorted the existing agencies 
"not more than 20 principal departments" as required by 
constitutional amendment and abolished a number of long- 
unused boards and councils. But, its effect on citizen 
participation In environmental quality decisions is unclear. 
During deliberations on the Executive Reorganization Act, 
the reorganization commission staff argued that advisory 
councils would permit full citizen participation, but it 
equated citizen participation with the recruitment of 
technical expertise to assist agencies. The staff also 
successfully opposed amendments suggested by Common 
Cause to Increase the level of citizen participation (54). 

One of the cornerstones of executive reorganization was 
the focus of responsibility on the Office of the Governor. To 
a certain extent, this has occurred. Through the layers of 
administration, fairly clear lines lead upward to the 
governor. A phone-complaint system — to be clearly 
distinguished from the ombudsman that was proposed — 
has been established. The governor and his staff have toured 
the state on two occasions to hear expressions of local 
sentiment at public meetings. But the governor has not met 
personally, on a regular basis, with public Interest groups. 
To be sure, much of a governor's effectiveness depends on 
the actions of his staff members in hearing, ranking, and 



passing on the citizen opinions they encounter. Much of the 
blame for the lack of personal dialogue rests with public 
Interest groups who have not demanded in public what they 
wish for In private. However, since the governor's staff can 
be an insulating as well as an expediting force, some 
regularized gubernatorial contact with citizen groups is 
desirable. 

Beyond this, there is some concern about the activities of 
the governor's representative in Washington, D.C.: the 
federal-state coordinator. The operations of that office 
apparently are not covered by public activity reports, impact 
statements, or public hearing requirements, even though it 
has played an advocacy role in major resource develop- 
ment decisions within the state, including highway 
construction and coal export. 

Under executive reorganization, existing Boards of Health, 
Natural Resources, and the Fish and Game Commission 
provide opportunities for citizen participation. However, 
governors — who are responsible for appointing board 
members — have not often been sure to include repre- 
sentatives of active public interest groups on the boards. 
Some legislative action on this point might help, because 
part of the reason for this appointment policy apparently is 
the potentially controversial nature of such appointments. 

This is not to say that reorganization of the executive branch 
Is unimportant — only that the task probably is not done. 
Public participation cannot be considered apart from its 
institutional setting (55). Proposals for reorganizing the 
environmental quality agencies in Montana have lurked 
under the surface, alternately rising and falling depending 
on the personalities, issues, and policy decisions of the 
minute. 

In the face of increasing land use and energy planning 
needs, some further systematic investigation of institutional 
alternatives should be undertaken. 



Administrative 
Procedures Act 



Administrative procedures acts (APA) are designed to 
standardize the day-to-day operations of administrative 
agencies. The Montana act does not reflect much concern 
for citizen participation In agency proceedings and does not 
allow leeway for a searching judicial review of agency action 
(56). The act was rewritten in the 1971 special session, after a 



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regular session bill had been vetoed. Basically, the act 
provides notice, publication, hearing, appeal, and judicial 
review requirements for administrative agencies. 

It is unclear why public works projects are exempted from 
the procedural requirements of the act. The definition of 
"party," meaning those entitled by the act to participate in 
agency proceedings and judicial review of such proceed- 
ings, does not expressly include public interest groups. The 
expressed relationship between remedies available under 
the act and those available under other statutes, such as the 
Montana Environmental Policy Act, should be more 
specific. The APA fails to specify that legal injunction is a 
remedy available to counter an agency's failure to comply 
with APA. More generally, the act fails to specify what rights 
of legal intervention are available to citizens. Standards 
governing the commencement of judicial review of agency 
action may be too restrictive. 

Other questions should be raised about the act: Should 
judicially reviewable findings be required as part of rule- 
making or contested case action by agencies? How does the 
act's provision allowing the appointment of "committees of 
experts or interested persons or representatives of the 
general public" for advice mesh with the advisory council 
provision of executive reorganization? 

These and a number of other questions suggest that the state 
Administrative Procedures Act should be reviewed compre- 
hensively by the legislature. Contrasting the act with its 
federal counterpart may be a good place to start because the 
federal act contains a broader grant of standing (57). 

The Right to Know 

Open Records 



Although access to information is not the same thing as 
participation in decision making, it is clearly a prerequisite 
of effective participation. The 1972 Montana Constitutional 
Convention adopted a strong right to know clause, the 
implications of which are still being debated. Article II, Sec. 
9 provides: 

No person shall be deprived of the right to examine 
documents or to observe the deliberations of all 
public bodies or agencies of state government and 
its subdivisions, except in cases in which the 
demand of individual privacy clearly exceeds the 
merits of public disclosure. 

In essence, the only secret records contemplated by the 
provision are those that involve personal privacy. Even then, 
the demands of individual privacy must c/ear/y outweigh the 
benefits of public disclosure. 

During the 1974 session, a package of right to know 
legislation was introduced. One of the measures dealt with 
access to documents (58). Basically, it provided that an 
agency head would determine which documents could be 
released. This determination could be reviewed by the 
courts. 

If the agency head decided to release a document involving 



the privacy of an individual, he was required first to notify 
the affected individual of his intention. That individual 
could seek to have the document withheld. After 
considerable debate and amendment, the bill passed the 
House and was killed in the Senate.* Hence Montana has no 
statute implementing the documents provisions of the state 
Constitution. Those provisions are self-executing anyway; 
but legislative embellishment could save many difficult 
problems. 

When legislation on the right to examine documents is 
considered again, it should contain a number of key 
provisions. Agency "draft" writings present one problem, 
for example, by providing a colossal loophole for agency 
secrecy. Draft documents and draft memoranda including 
contracted studies used to prepare draft and final environ- 
mental impact statements should be available publicly.** 

Procedures also should be established for the release of 
portions of privileged documents to avoid the situation of 
withholding an entire document simply because one 
portion contains a matter of privacy. Otherwise, detecting 
patterns of administrative agency abuse can be made very 
difficult by allowing concealment of documents by attach- 
ing or including private information. 

Further, an access to documents statute should clarify the 
openness of documents passing between departmental 
directors and supervisory boards. At least one state agency is 
hesitant about releasing this type of communication. 
Clearly, all intra- and inter-agency memoranda not 
involving individual privacy should be public. 

Structuring open information systems — such as those 
being used in Pittsburgh and Puerto Rico — also is a good 
possibility. Basically, these are neighborhood data centers 
where citizens can go for many kinds of information (59). 

Notice and Open Meetings 

The right to know clause of the 1972 Constitution also 
pertains to the deliberations of public bodies and concerns 
open meetings. However, two bills introduced in the 1974 
legislative session to implement the constitutional rights to 
attend and participate were defeated (60). 

One bill would have required agencies — including those of 
local government — to "encourage and assist public 
participation to the fullest extent practicable" before 
rendering decisions or adopting rules or policies of public 
significance. In so doing, the act would have required 
agencies to give reasonable notice and the opportunity to 
submit data, views or arguments before reaching a final 
decision. The act also would have required all agencies to 
adopt guidelines to facilitate public participation and 
implement the act. One additional and important 
provision would have invalidated any agency action 



•This legislation and other bills in the right to know package were opposed by the 
Montana Press Association on the grounds that they could be used to withhold 
information and that they would give too much discretion to agency administrators. The 
press opposition indicates the complexity of implementing the constitutional right to 



"The Montana En 



—102— 



adopted without following the act's requirements. The 
action then could be set aside by a court on petition within 
90 days. 

The other bill was designed to add life to the right to observe 
the deliberations of public bodies by requiring the issuance 
of notice. It would have required officials to give reasonable 
notice and furnish an agenda before any meeting of two or 
more members of a public body at which formal action was 
to be taken. The act did not apply to juries, legislative 
caucus.or meetings of judicial and quasi-judicial bodies that 
had held hearings. Any citizen could petition a district court 
to set aside an agency decision not in compliance with the 
act. Injunctive relief also was provided and public officials 
knowingly violating the act were subject to fine or imprison- 
ment. 

Enacting similar legislation should be a high priority. In 
reconsidering such legislation, the legislature might want to 
consider whether an individual's right of recourse should 
have to be limited to matters prejudicing his rights. 
Important environmental decisions and policies are not 
always considered judicially to be matters affecting the 
rights of public interest groups. Until they are, such a 
limitation is ill-advised. 

Finally, a central registry of agency decisions on requests for 
access to meetings and documents should be maintained, 
perhaps in the office of the Secretary of State. In this way, 
the overall performance of right to know legislation could 
be assessed. Without a central filing agency, policies cannot 
be coordinated or scrutinized easily. 

Confidentiality Provisions 

At least four Montana environmental statutes have 
confidentiality provisions, notwithstanding the 
constitutional right to know provisions. The act regulating 
hard rock mining reclamation contains the most open- 
ended statement: 

Any and all information obtained by the board or 
the director of the staff by virtue of applications for 
licenses or permits is confidential between the 
board and the applicant. Any information obtained 
by the board or by the director or his staff by virtue 
of applications for licenses or permits is, however, 
properly admissable in any hearing conducted by 
the director, the board, appeals board or in any 
judicial proceeding to which the director and the 
applicant are parties. Failure to comply with the 
secrecy provisions of this act shall be punishable by 
a fine of up to ten thousand dollars ($10,000) or one 
(1) year in jail (61). 

The provision, of course, has the effect of totally closing 
Department of State Lands files and mouths on the extent of 
hard rock mining in the state — other than for information 
on leasing activity on state lands. (The penalty for releasing 
confidential information is 10 times higher than for other 
violations of the act.) 

The state's Clean Air and Water Quality Acts contain 



confidentiality provisions somewhat more narrow in scope. 
First, the Clean Air Act: 

(1) Records or other information concerning air 
contaminant sources which are furnished to or 
obtained by the board or department, and which, 
as certified by the owner or operator, relate to 
production or sales figures or to processes or 
production unique to the owner or operator or 
which would tend to affect adversely his 
competitive position, are only for the confidential 
use of the board or department in the 
administration of this act, unless the owner 
expressly agrees to their publicaiton or availability 
to the general public. 

(2) This section does not prevent the use of records 
or information by the board or department in 
compiling or publishing analyses or summaries 
relating to the general condition of the outdoor 
atmosphere, if the analyses or summaries do not 
identify an owner or operator or reveal 
information made otherwise confidential by this 
section (62). 

The Water Quality Act similarly veils information said to 
endanger the "competitive position" of industrial polluters: 

Any information concerning sources of pollution 
which is furnished to the board or department or 
which is obtained by either of them is a matter of 
public record and open to public use. However, 
any information unique to the owner or operator 
of a source of pollution which would, if disclosed, 
tend to weaken his competitive position shall be 
confidential unless he expressly agrees to its 
publication or availability to the general public or 
unless such information is introduced as evidence 
in a hearing before the board. Any information not 
intended to be public when submitted to the board 
or department shall be submitted in writing and 
clearly marked as confidential. The data describing 
physical and chemical characteristics of a waste 
discharged to state waters shall not be considered 
confidential; except that the party supplying the 
information to the board may apply to the board 
for confidential status for the information so 
supplied, and the board shall determine that the 
disclosure of said information is in the public 
interest prior to the disclosure to the public of said 
information. The board may use any information in 
compiling or publishing analyses or summaries 
relating to water pollution if such analyses or 
summaries do not identify any owner or operator 
of a source of pollution or reveal any information 
which is otherwise made confidential by this 
section. (63). 

All three of these examples of government secrecy are in 
apparent conflict with the right to know provision of the 
Constitution. However, the attorney general has ruled that 
the hard rock mining act provision also isconstitutionaland 
that it precludes the public release of information submitted 



by miners for any environmental impact statement. In his 
opinion, the attorney general held that a corporation could 
be considered an individual within the individual privacy 
exception of the right to know provision (64). However, the 
opinion does not explicitly consider the stated intent of the 
Constitutional Convention. In three specific instances, 
delegates on the floor of the convention stated that the 
word individual in "individual privacy" does not include 
corporations. It seems that judicial resolution of this diffi- 
culty is the only answer, since the confidentiality provisions 
are being enforced and the records remain secret. 

Citizen Participation 
Alternatives 

There are a number of available alternatives which could 
enhance citizen participation in administrative decisions. 
They include federal and state statutes and efforts to 
delineate boundaries of citizen participation in the 
administration of government. 

Federal Freedom of Information Act 

The Federal Freedom of Information Act is one example that 
could be considered for statutory implementation of the 
Montana Constitution's right to know provision. The act is 
brief and requires that documents be open to the public 
with the following exceptions: matters of national defense 
or foreign policy is provided by Executive Order; internal 
personnel rules and practices; matters specifically 
exempted by other statutes; trade secrets; inter- and intra- 
agency memoranda; personnel and medical files; law 
enforcement investigatory files; financial institution 
records; and geological and geophysical information (65). 

The key provisions in the act are the exclusions, a number of 
which probably would be unconstitutional if incorporated 
into Montana law. Additionally, the implementation of the 
act and the interpretation of the exclusions have been 
reviewed and have been found wanting (66). For example, 
one commentator has suggested that agencies and the 
courts have construed the exemptions in a manner that 
turns the act into a withholding rather than a disclosure 
statute (67). 

One major limitation of the Freedom of Information Act is 
its failure to address the storage of agency records. An 
agency's filing method can facilitate or hinder the review 
efforts of interested citizens. Typically, a citizen or public 
interest group is not looking for one or several particular 
documents. Most often of interest is the broad base of 
information about a specific decision or policy. Of course, 
all the documents bearing on the decision or policy are 
important, because discovering a key memorandum may 
reveal more than a pound of correspondence. But the point 
is that the citizen reviewer rarely will be able to identify the 
key documents in advance. Whole files must be available, in 
addition to requested documents. 

Specific statutory language requiring agencies to organize 
their files so as to facilitate reviews of policy and decision 
making would be helpful. Filing uniformity does not exist 
among Montana state agencies. 



The federal act does have a number of good points. For 
example, the agency must prove that a document falls 
within one of the specific exemptions. Officials can be held 
responsible for noncompliance and can be cited for 
contempt. The loophole allowing an agency to declare that 
a person is not "properly or directly concerned" and 
entitled to inspect documents has been plugged. 

Recently, Congress amended the Freedom of Information 
Act. But President Ford vetoed the amendments, saying they 
could jeopardize diplomatic relations and national security. 
The amendments tightened upsomeof the exemptions, put 
a ceiling on the time allowed for agency response to 
requests for documents and reduced the price of govern- 
ment-furnished photocopies (for citizen use) to actual cost 
only. 

New York Freedom of 
Information Act 

In September of 1974, the State of New York enacted a 
new freedom of information statute. It is patterned after the 
federal act, sharing many of its strengths and weaknesses. A 
novel twist in the statute is its creation of a Committee on 
Public Access to Records. The committee has three agency 
and four public members — two of whom are repre- 
sentatives of the news media. The committee can issue 
guidelines, advisory opinions, and regulations to help state 
and local governments implement the law. The law also 
requires agencies to keep a detailed index of records, 
organized by subject matter(68). Establishing a similar 
committee in Montana could help with the initial diffi- 
culties of legislation implementing the right to know — one 
of the chief worries that defeated right to know legislation in 
the 1974 session. 

Federal Water Pollution 
Control Act 

The 1972 amendments to the federal Water Pollution 
Control Act were quite explicit on matters of citizen 
participation. The policy provisions announce that "public 
participation in the development, revision, and enforce- 
ment of any regulation, standard, effluent limitation, plan, 
or program established by the Administrator or any State 
under this Act shall be provided for, encouraged, and 
assisted by the Administrator and the States" (69). The 
administrator has issued, as required, guidelines for 
increasing public participation. Montana has no 
comparable set of participation guidelines. 

Maximum Feasible Participation 

One of the first federal statutory provisions on participation 
presents an interesting case study. The Economic 
Opportunity Act, enacted in the mid-1960s, required 
"maximum feasible participation" by the poor in 
community action programs. At least one commentator has 
written that the effectiveness of this participation resulted is 
less encouragement of participation by the poor in later 
legislation such as the Model Cities Act (70). When Model 
Cities legislation was passed, it called for "widespread 
participation" and, unlike the Economic Opportunity Act, 
the choice of terminology received special attention. 

Notwithstanding this difficulty, the "maximum feasible 



participation" provision was a laudable effort to insure the 
participation of tfiose who are least likely to demand a voice. 
Establishing a similar concept in Montana law would be 

helpful. 

U.S. Forest Service and "Codinvolve" 

The U.S. Forest Service (USPS) is perhaps most notable of 
federal agencies in efforts to increase public involvement — 
although the effect of that involvement has yet to become 
clear (71). Recently, USPS research social scientists have 
developed a methodology for analyzing and evaluating 
received citizen input (72). Basically, its "Codinvolve" 
process is used to condense and compile public input 
before it is evaluated. This process was employed recently in 
a USPS environmental statement for its Little Missouri 
National Grasslands planning unit (73). Although the 
method helpfully categorizes input, it also can remove the 
flavor of the public expression along with the excesses and 
redundancies. In the Little Missouri case, the full text of 
letters and comments were printed in an appendix of the 
impact statement, so the reviewing officials at least had the 
original materials available. 

Perhaps a statute requiring agencies to develop guidelines 
for evaluating citizen input would be helpful in Montana. 
To date, the Department of Natural Resources is the only 
state agency actively undertaking such an effort as a part of 
its decision on Colstrip Units No. 3 and No. 4. 

Office of Technology Assessment 

The federal Office of Technology Assessment (OTA) is 
another example of an important opportunity for public 
participation in major decisions. OTA was created by 
Congress to: 

(1) identify existing or probable impacts of technology 
or technological programs; 

(2) where possible ascertain cause-and-effect 
relationships; 

(3) identify alternative technological methods of 
implementing specific programs; 

(4) identify alternative programs for achieving 
requisite goals; 

(5) make estimates and comparisons of the impacts of 
alternative methods and programs; 

(6) present findings of completed analyses to the 
appropriate legislative authorities; 

(7) identify areas where additional research or data 
collection is required . . . (74). 

Technology assessment is not as confounding as the jargon 
might suggest. It is simply a recognition of the need to assess 
the human and environmental impacts of new technologies 
before they are adopted for use in the society at large. 

A public interest group clearly recognizing the political and 
societal aspects of TA has been established in Washington, 
D.C. More than anything else, the recognition that 
technology is a branch of moral philosophy indicates the 



need to encourage public participation before major 
technological choices are made (75). 

Montana does not have formal, comprehensive technology 
assessment legislation. (However, the state's Utility Siting 
Act and the Water Quality Act are technology assessment 
statutes.) Neither does Montana participate consistently in 
activities of the federal OTA as it does, for example, in 
review of federal environmental impact statements. Steps 
should be taken to insure that full technology assessment is 
a part of Montana's major resource decisions. 

Utility Siting Act 

The 1973 Montana Utility Siting Act contains important 
provisions for citizen participation. It is missing a few too. 

The siting act specifically includes public interest groups in 
its definition of affected parties: 

Any nonprofit organization, formed in whole or in 
part to promote conservation of natural beauty, to 
protect the environment, personal health or other 
biological values, to preserve historical sites, to 
promote consumer interests, to represent 
commercial and industrial groups, or to promote 
the orderly development of the areas in which the 
facility is to be located . . . (76). 

The act also contains specific hearing procedures, notice 
requirements {77), and formal findings (78), requiremens 
important not only for utility facilities, but for assessment of 
other major developments. 

The act also has a citizen enforcement procedure. Any 
resident of the state who believes the act is being violated 
can petition the state to enforce the provisions of the act 
(79). Should the petitioned public official fail to enforce the 
act, a writ ordering action can be sought in Lewis and Clark 
County District Court. This is a helpful, but incomplete 
remedy. The act should provide for immediate injunctive 
relief so the issues of a controversy over some official action 
can be preserved for judicial review. 

The state Board of Natural Resources and Conservation 
considers the siting of utilities and transmission lines in 
quasi-judicial proceedings. Before making a decision in any 
given case, the board conducts a hearing under the 
contested case provisions of the Montana Administrative 
Procedures Act (80). (A contested case procedure is used 
when an agency decision will affect the right of a single party 
to such an extent that additional administrative safeguards 
are needed — the right of cross-examination, 
representation by counsel, and adherence to the rules of 
evidence.) 

However, as indicated in its provision for citizen 
participation, the siting act intends that members of the 
public be free to present their opinions for the hearing 
record. Because opinions unsubstantiated by qualified 
expertise are not admissible under typical rules of evidence, 
and because the typical hearing record would be confined 
to matters of law and fact, the legislature stipulated that: 



-105- 



a record shall be made of the hearing and of all 
testimony taken; and the contested case 
procedures of the Montana Administrative Pro- 
cedures Act shall apply to the hearing, except that 
neither common law nor statutory rules of 
evidence need apply, but the board may make 
rules designed to exclude repetitive, redundant or 
irrelevant testimony (emphasis added) (81). 

Although the Board of Natural Resources has not acted to 
preclude public interest testimony on matters of opinion, 
propriety, and policy, it has not clearly accepted the 
proposition that these constitute a valid basis for the 
ultimate decision. The siting act, however, seems quite clear 
on this point. After stating that public interest testimony is 
admissible and is not subject to the common law rules of 
evidence, the act provides: 

The board shall make complete findings, issue an 
opinion, and render a decision upon the record, 
either granting or denying the application as filed, 
or granting it upon such terms, conditions, or 
modifications of the construction, operation or 
maintenance of the utility facility as the board may 
deem appropriate (82). 

This and other language in the act clearly indicates that 
statements of opinion, policy, and propriety can form the 
basis of the decision on any proposed utility facility. 

To the extent that the Board of Natural Resources follows 
the typical adjudicatory hearing procedures, this important 
and clear legislative intent to increase citizen participation is 
thwarted. 

Right of Intervention 

The right of public interest intervention in agency 
proceedings is still developing. However, the standards are 
emerging along lines similar to those described in the 
discussion of standing and judicial intervention (83). 
Montana law does not clearly grant public interest groups 
any rights of intervention in administrative proceedings, 
and to that extent is deficient. 

Montana Environmental 
Policy Act Requirements 

The most Important Montana statute to involve citizens in 
decisions affecting environmental quality is the Montana 
Environmental Policy Act (MEPA). By forcing agencies 
publicly to justify their major decisions and programs in 
advance, MEPA helps assure citizen opportunity to review 
and influence decisions. The act's effectiveness depends in 
part on the guidelines promulgated by the state Environ- 
mental Quality Council. The guidelines specify 
requirements for content and circulation of environmental 
impact statements. The act by itself is only a skeletal frame- 
work for administrative action, especially regarding 
decision making time frames. 

Several questions have arisen concerning the act and guide- 
lines. Including the enforceability of the guidelines. There 
also is question whether MEPA does or should cover units of 
local government. If so, local governments would have to 



prepare impact statements, for example, under the state 
subdivision law. If local government Is not covered by 
MEPA, perhaps the subdivision act — and other sources of 
local government authority — should be amended to 
require local officials to publicize written, detailed and 
judicially reviewable findings when they approve or deny a 
subdivision, or take other major actions. In this way, the 
grounds for decision at least would be explicit and 
reviewable. 

Beyond questions on MEPA's jurisdiction. Its current 
requirements for economic analysis may be insufficient. The 
guidelines call for economic analysis in several places, but a 
specific type of analysis — dialectical cost benefit analysis 
(84) — should be recommended. Use of dialectical analysis 
would help insure active and complete analysis of costs and 
benefits of the best decision with respect to environmental 
quality, usually the least quantifiable among alternatives. 
Agencies would be required to weigh all available project 
alternatives fully. 

Another MEPA weakness concerns the 30-day "cooling off" 
period after a final environmental Impact statement has 
been issued. (This period allows those who commented on 
an impact statement to assess whether their comments were 
taken seriously by the agency. At the end of the time, an 
agency can formally announce its decision.) But the 
decision should not take effect for a short period there- 
after, at least five days. This delay would allow citizen groups 
to assess the possibility of litigation in light of anannounced 
agency decision. The additional time is crucial for several 
reasons: the agency decision typically is not ripe for judicial 
review until after formal announcement; private parties 
could become Involved at the time of decision (such as 
Department of Health approval of a subdivision) and could 
begin to rely on a decision that is about to be litigated; 
bonding requirements then could preclude litigation if a 
private party has become involved. In short, the additional 
time period could help assure that administrative decision 
making could run its course — to the courts if necessary — 
without unduly burdening private parties or citizens who 
might seek judicial review. 

Informal Sessions 

The Impact of periodic. Informal sessions with agency 
personnel must not be underestimated (85). Relying too 
much on the formal rule making or adjudicatory proceed- 
ings of agencies can mean that the agency will not have 
sufficient time to consider public interest opinions in full 
perspective. Agencies are visited on a day-to-day basis by 
special interest representatives to discuss pending develop- 
ments and agency requirements. Citizen groups should be 
certain to let agencies know that public interest concerns 
are year-round as well. Periodic contact and dialogue is the 
only way to do this. 

Informal agency contacts by parties to an adjudicatory 
proceeding sometimes are not allowed. Section 82-4214 of 
the Administrative Procedures Act prohibits such meetings 
with members of an adjudicatory board after its hearing 
notice has been published. After the hearing announce- 
ment, all parties must be notified of meetings between the 
board and any of the parties to the pending decision In 
order not to prejudice the quasi-judicial deliberations. 



—106— 



LOCAL GOVERNMENT 



Many factors bear directly on citizen participation in 
government decisions at the local level. Two deserve at least 
brief mention. 



The 1972 Montana Constitution contains unique local 
government review provisions. By that document, the 
legislature must, within four years of ratification, establish 
procedures requiring local governments to place one 
alternative form of government before the voters. 
Thereafter, local governments must reconsider their form of 
government at least every 10 years (86). 

The constitution also authorized the creation of a 
commission on local government (87). The commission was 
created (88), is studying a variety of local government 
arrangements, and has just released its first annual report to 
the legislature (89). The report discussed two options 
important for citizen participation: community councils 
and town meetings. 

The community councils could provide an advisory link 
between citizens and local governors. Council members 



would be elected from representative areas and would meet 
regularly with other local government officials (90). 

Town meetings have a long history in the U.S. (91). The 
possibilities proposed by the Commission on Local Govern- 
ment differ significantly from the present New England 
experience, primarily by placing greater emphasis on actual 
decision making by the town meeting (92). 

Renewed citizen participation in local government could 
become even more important for environmental protection 
if the recommendations of the EQC Montana Land Use 
Policy Study are adopted in some form (93). These would 
solidify at the local level significant powers to protect the 
environment. 

The major limitation confronting local government in 
environmental quality decision-making — aside from the 
local pressure of special interests and acquaintances who 
may be impossible to regulate effectively (94) — is a lack of 
funding and staff. Proposals such as those of the EQC would 
fail lacking full funding of local government efforts to 
employ persons who are independent, competent, and 
ecologically aware. 



THE PRIVATE SECTOR 



Especially in recent years, there has been considerable 
concern about the role of the public in what are usually 
called "private" decisions (95). The literature on the subject 
is building (96). No one sensibly argues against the 
contention that what were once considered purely private 
activities — subdividing, mining, timber harvesting — now 
are recognized to have substantial effects on the public of 
this and future generations. The enormity of modern 
corporate innovation and investment only magnifies the 
effects. 

The Corporation, the 
Stockholder, and the 
Montana Citizen 

The problem of increased impact of corporate activities is 
compounded further by the significant lack of public 
controls on the development and implementation of 
corporate policy. Standard economics texts admit freely that 
neither stockholders nor the public has very much to say 
about corporate policy (97). 

Although seemingly much decentralized Montana has 
experienced enormous corporate pressures in the past and 
will feel corporation influence for the foreseeable future. 
There is no avoiding it. Whether Montanans will be able to 
exert effective control on policies of corporations that 



operate in or influence the state remains to be seen. An 
increasing citizen role in corporate decisions affecting the 
state certainly will be needed. Stockholders may never again 
be in a position to exert control. In the next few years, it may 
become essential for Montanans to reexamine their 
traditional opposition to governmental regulation and build 
effective institutions to control corporate and other private 
activities. 

Assertion of the public's right to participate in corporate 
decision making immediately confronts numerous problem 
areas. 

AdvertisinR 

The primary contact between corporations and citizens — 
apart from the sale and purchase of goods and services and 
the environmental consequences of corporate growth and 
operation — is advertising. During the 1973 legislature 
committee testimony pointed out that at least one Montana 
corporation* spent $548,605 for advertising in 1971 — over 
four times what it spent for research (98). Over one-third of 
this figure was promotional advertising. 

In a recent speech, author Vic Reinemer pointed out that 
"the annual research and development effort of the 
Nation's largest industry, the investor-owned electric 



•A regulated monopoly. 



—107- 



utilities, is less than the amount Exxon [Corp.) spent to put 
up and merchandise Its new name" (99). 

Advertising is not without its defenders. To be sure, it can 
at least provide important information. But advertising also 
has the power to degrade the quality and opportunity for 
public debate. In the words of Joseph Tussman: 

Our attempts at education for democracy, for 
participation in public life, are hopelessly 
perplexed by the divergent demands of market- 
place and tribunal. How, for example, shall we 
teach our children to communicate with the 
necessary respect for the integrity of language, and 
for each other, when we support (almost as culture 
heroes) a large class of professional liars to hail with 
impartial sincerity the claim of any client? This is 
not intended as a 'personal' remark; the point is 
precisely that advertising is a respectable 
profession in our marketplace culture. But how, 
supporting such a profession, can we really make 
the point that the integrity of communication is the 
wellspring of a community's life? It is no answer to 
say that we have learned to defend ourselves by not 
believing what we hear, or that propaganda will 
counter propaganda and the truth will prevail even 
though no one tells it. We are poisoning the wells, 
and we cannot live on antidotes (100). 

At least one Montana statute — the Utility Siting Act — 
requires that the extent of corporate advertising should be 
considered in agency proceedings. In approvingor denying 
a facility application, one of the factors to be weighed is the 
utility's promotional activity, which may have helped create 
the need for the facility (101). Presumably, a utility's 
promotional advertising could undermine its claim of 
public necessity, a precondition of approval required by the 
siting act. 

Promotional advertising could be curtailed, but this would 
be no panacea, however. Recently, it has been discovered 
that pressure against corporate advertising has led to a shift 
toward well-publicized research and development 
budgets, acclaimed but routine testing of products and 
public relations campaigns for the circulation of "research" 
findings among other public relations ploys. Perhaps the 
public cannot stop the transfer of advertising dollars into 
research and development accounts, but the quality of 
work might improve if the advertising concerning research 
had to be informative and balanced. 

Corporations doing business In the state, for instance, could 
be required to hold public hearings on the services and the 
products to be advertised and sold in the state. Meetings 
could be announced and held in geographically 
appropriate locations, and a record could be kept. In 
contrast to the gimmickry of existing advertising, balanced 
views could be aired to increase public awareness. 

If the prospect of censored advertising appears to threaten 
an imposition on advertisers, it should be remembered that 
the price of advertising nearly always increases the costs of 
the product — whether it is a household item, an auto- 



mobile, or a real estate development. Because the 
consumer ends up paying for the advertising anyway, 
should he not have a voice in the way his money is expended 
— just as he does, for example, in the safety of the product? 
Might he not prefer a balanced, informative discussion of 
the product rather than gimmickry? The extent to which the 
state is free to act in this area should be explored and some 
debates should be undertaken. 

Corporate Disclosure 

The true dimensions of the 1973-'74 energy crisis never were 
known, by Congress or the public, primarily because 
government was not in possession of independent 
information on oil reserves and existing supplies. 
Congressional hearings were held in an attempt to discover 
the needed information and to decide If such information 
should be collected on a regular basis (102). 

Generally speaking, neither government nor the public has 
sufficient information to judge the machinations of 
corporate enterprise. In Montana, legal requirements 
for corporate disclosure virtually are non-existent. 
Domestic and foreign corporations must file annual reports 
containing the corporation's name and address; brief state- 
ment of Its nature; Its officers and directors; and shares 
authorized and Issued, stated capital, and property value 
(103). No systematic filing of other relevant information, 
such as environmental performance in other states, 
advertising budgets, research and development affecting 
the public Interest, pollution emissions and effluents or 
pending litigation or enforcement proceedings in other 
states or countries is required. In fact, as noted previously, 
confidentiality provisions can preclude effective public 
access even to information on the emission of 
environmental contaminants. Legislation to require 
systematic disclosure of emissions and effluents failed to 
pass the 1973-'74 session (104). 

Systematic disclosure of corporate responsibility also would 
be helpful. One commentator has suggested that the 
federal Securities and Exchange Commission undertake the 
task. "New categories of society-oriented disclosure should 
be developed by the Securities and Exchange Commission 
and required of corporations. In orderto increase corporate 
responsibility a corporation should be required to disclose 
fully the impact of its activities upon society" (105). 

Safeguarding Employee Rights 

One of the ways the public hears allegations about wrong- 
doings of corporations is through employees. But an 
employee puts his or her job in danger by making 
disclosures about corporate policy or practices. The federal 
Water Pollution Control Act Amendments of 1972 clearly 
recognize this problem and attempt to cure it. Section 507 
of the act provides: 

No person shall fire, or in any other way discrimi- 
nate against, or cause to be fired or discriminated 
against, any employee or any authorized repre- 
sentative of employees by reason of the fact that 
such employee or representative has filed, 
instituted, or caused to be filed or instituted any 
proceeding under this Act, or has testified or is 



about to testify in any proceeding resulting from 
the administration or enforcement of this Act. 

A review procedure to protect employee rights is 
established in the same section. Also protected is the right of 
an employee to collect the costs of an action to reverse 
dismissal or discrimination. Whether the provision will work 
remains to be seen, but it at least attempts to protect a 
crucial source of public information. There is no similar 
provision in Montana law, not even in the state's new 
Occupational Health Act, where one might prove most 
useful (106). 

Public Representation on 
Boards of Directors 

It is now conventional economic thought that certain 
relatively small segments of management, not stock- 
holders, really make corporate policy. The typical board of 
directors has been criticized widely for its failure to exercise 
a strong policy function (107). This trend could be reversed 
in Montana by requiring a broadening of membership of 
the boards of directors of major corporations doing 
business in the state. Perhaps requiring the placement of 
public representatives on boards of large corporations 
would be a good step. 

Quite often, board members of one corporation are 
executives of other corporations. Consider, for example, 
the membership of the directing boards of Montana Power 
Co., Burlington-Northern Railroad and Anaconda Co., 
three major Montana corporations: 

Montana Power Company (108) 



Anaconda Company (110) 



J. E. Corette 
Robert D. Corette 
Newell Cough, |r. 

J. A. McElwain 
Adrian O. McLellan 
George W. O'Connor 
R. H. Robinson 

Clark E. Simon 
Louis A. Spain 
L. S. Stadler 
Warren F. Vaughn 

Burlington 
Royal D. Alworth, Jr. 
Charles H. Bell 
John M. Budd 
Donald C. Oayton 
Charles Devens 
Cris Dobbins 
Robert W. Downing 
Pemberton Hutchinson 
|. Howard Laeri 
W. Wallace McCallum 
Louis W. Menk 
John M. Meyer, Jr. 

Philip H. Nason 

William C. Reed 
John F. Smith, Jr. 
Jackson T. Stephens 
Alexander L. Stott 
Robert B. Wilson 



Montana Power Company 

Butte 

Cough, Booth, Shanahan, & 

Johnson, Helena 

Montana Power Company 

Montana Power Company 

Montana Power Company 

Carlington, Lohn, & Robinson, 

Missoula 

Billings 

Bozeman 

Montana Power Company 

Security Trust & Savings Bank 

Northern (109) 

Oneida Realty Company 

General Mills, Inc. 

Burlington Northern Inc. 

Dayton Hudson Corporation 

Retired 

Ideal Basic Industries, Inc. 

Burlington Northern Inc. 

Westmoreland Resources 

St. Regis Paper Company 

W. W. McCallum & Associates 

Burlington Northern Inc. 

Morgan Guaranty Trust Company 

of New York 

The First National Bank of 

Saint Paul 

Simpson Reed & Co. 

Inland Steel Company 

Stephens, Inc. 

Burlington Northern Inc. 

Personal Investments 



Robert V. Roosa 
William E. Quigley 
John W. Brodes 
Richard L. Knight 
Charles A. Siegfried 
John E. Tenge 
William H. Kendall 
James D. Farley 
Donald D. Geary, Jr. 
John B. M. Place 



New York City 
New York City 
New York City 
New York City 
Madison, New jersey 
Billings 

Louisville, Kentucky 
New York City 
New York City 
New York City 



Executives on the boards listed also represent a significant 
array of major United States corporations. There may be 
nothing untoward in this, but is may serve to indicate how 
inbred corporate policies can be and accent the source of 
differences between corporations and the public. Formal 
public representation could induce beneficial dialogue, 
clarify areas of compromise or disagreement, and help 
assure that major corporations doing business in Montana 
would hear public viewpoints regularly at high levels of 
corporate management. 

Environmental Consultants 

Mention of private sector activities and their relation to 
public involvement would be incomplete without discuss- 
ing what aptly has been called the fastest growing industry in 
the country: environmental consulting (111). 
Environmental consulting is a private, profit making 
business service hired out to developers and corporations. 
The hired consultants typically provide assistance in 
environmental planning, write reports that must be 
submitted to state and local agencies, and, sometimes even 
do a little public relations work, helping companies sell the 
ecological propriety of their proposed activities. 

Citizens or public interest groups currently have no access 
to the work done by private consultants — unless a report is 
released. Even though environmental consulting is an 
important enterprise, laden with public implications, the 
files of consultants are not open for review; the sometimes 
revealing correspondence between the employer and the 
consultant is not subject to scrutiny; performance standards 
have not been established; and licensing requirements are 
non-existent. 

Even though consultants are in excellent positions to judge, 
they are rarely given to state whether their projects are 
ecologically sound and of long-term benefit to the affected 
communities. Although free and willing to consider the 
"how" of developments, consultants are not required to 
judge whether developments are wise, and probably never 
will unless required by law. Public regulation of environ- 
mental consultant activities is essential, however, if the 
important insights provided by the application of the 
natural, physical and social sciences are not to be perverted 
to narrow ends. 

Conclusion 

There have been many other proposals that would aid the 
public in efforts to promote corporate responsibility. They 
include: drafting easier threshold standards for citizen 
litigation against private parties; stiffer penalties for 
corporate violation of laws, including suspension of 
culpable executives; required appointment of in-house 



-109- 



corporate enforcement officers; promoting greater open- 
ness of relevant corporate documents; promulgating 
stricter incorporation standards; appointing decentralized 
advisory councils on specialized effects of corporate 
operations; encouraging public debates on corporate 
policy; and forcing release of explicit information on the 
social costs of corporate activites. 

The list of possibilities is nearly endless. Recognizing that 
corporate life will be a part of the foreseeable future, some 
systematic assessment of the role of the public in the 
development of corporate policy should be undertaken 
(112). The legislature might establish a corporate responsi- 



bility task force, for example, to review the numerous ways 
of assuring a greater public role in environmental decision 
making. Such a process could be as important to the quality 
of Montana's future as the progressing activity to establish 
state land use and energy policies and goals. 

Certainly, there are complexities involved in asserting the 
public's role in corporate activities. Deciding what size 
undertaking should be regulated, for example, is a ticklish 
problem, as is overseeing the effectiveness of the reforms. 
But, debating and experimenting with these and similar 
options might promote a beneficial relationship between 
the public and the corporation. 



THE NEWS MEDIA 



The news media — newspapers, radio and television — are 
critically important to citizen awareness of governmental 
and private decision making. Environmental action citizen 
groups can and do rely on the news media to present their 
views and increase environmental awareness. This paper 
focuses on the rights of access citizens have to the news 
media. 

The Fairness Doctrine 

Citizens and public interest groups have automatic access to 
the news media when they make news — just as do agencies 
and corporations. However, much of time and space in the 
news media is devoted to various forms of commercial 
persuasion and editorial programming — advertising that is 
the financial support of each medium. Increased concern 
with the environmental effects of some of these 
commercially advertised activities — cigarettes, auto- 
mobiles, the Montana Power Co. public relations campaign 
on Colstrip Units 3 and 4 — has led some Montanans to 
wonder how the public can present countervailing views to 
these well-funded advertising campaigns. The fairness 
doctrine is one answer in the broadcasting media (113). 

Unlike the print medium broadcasting is regulated because 
radio and television channels are construed to be limited, 
public resources. Hence a broadcaster providing time for a 
political candidate must provide equal time for his 
opponents. The matter is not quite so clear cut when it 
comes to airing controversial issues of public importance. 
For decades, the Federal Communications Commission 
(FCC) has expounded what is called the "fairness doctrine" 
(114). The FCC basically requires that broadcasters provide 
time for airing viewpoints contrasting with those expressed 
in programs and advertisements on "controversial issues of 
public importance." In early rulings, FCC laid down general 
principles governing the doctrine: 

1. The "public interest requires ample play for the 
free and fair competition of opposing views . . ." 
(115) 

2. "Strict adherence to the fairness doctrine" is "the 



single most important requirement of operation in 
the public interest — the 'sine qua non' for grant of 
a renewal of a license." (116) 

3. "...Broadcast licensees have an affirmative duty 
generally to encourage and implement the 
broadcast of all sides of controversial public issues 
over their facilities, over and beyond their 
obligation to make available on demand oppor- 
tunities for the expression of opposing views. It is 
clear that any approximation of fairness in the 
presentation of any controversy will be difficult if 
not impossible of achievement unless the licensee 
plays a conscious and positive role in bringing 
about balanced presentation of the opposing 
viewpoints" (117). 

In recent rulings, FCC has applied the fairness doctrine to 
commercial advertising of cigarettes and has been upheld 
by a U.S. District Court (118). In the court's opinion, several 
standards were set down for invoking the fairness doctrine 
against product advertising: product danger to health; 
danger in normal use of the product; threat to a substantial 
portion of the population; and the presence of statistical 
evidence in support of the danger. 

Relying on these standards, environmental groups at first 
were unsuccessful in using the doctrine against high octane 
gasoline and high performance automobiles (119). 
However, environmentalist challenge of ads urging the 
quick need to develop the oil reserves of Alaska and claim- 
ing that this could be done without significant environ- 
mental impact was upheld by the FCC (120). Additionally the 
FCC held that the stations showing the ads must go beyond 
editorials and news coverage of the Alaskan oil controversy 
to overcome the lack of fairness (121). 

A U.S. District Court reversed the FCC denial of the environ- 
mentalist petition in the high octane gas and high 
performance auto case (122). The court said that promoting 
a "high performance" lifestyle was presenting a contro- 
versial view on an important public issue. The court also 
noted that the public health hazards of high performance 
autos parallel the hazards of cigarette smoking. 

There are many thorny questions involved in the use of the 
fairness doctrine. What, for example, is a controversial issue 



of public importance? Must the response be accorded the 
same time slot or same viewing potential? Must the time be 
provided free? At least where an advertisement clearly 
argues one side of a controversial and publicly important 
question, or advocates a life style that has adverse public 
health impacts, the doctrine probably will apply. Sometimes 
the air time will be free. Further court interpretation of the 
doctrine could make it an even broader asset of the public 
interest. 



Right of Access 



Beyond the ad hoc, predictably expensive, and time 
consuming use of courts to enforce the fairness doctrine, 
there are a number of other ways to open regular citizen 
access to the news media (123). The FCC's guaranteed right 
of response covers political editorials and personal attacks 
only. 



recommended either a court-fashioned right of access or a 
right of access statute, because the "free market" approach 
to freedom of expression no longer suffices (127), Elsewhere 
it is argued that the opportunity for free expression is as 
important now as its protection (128) and that statutory duty 
"to afford reasonable opportunity for the discussion of 
conflicting views" should compel more than just an oppor- 
tunity for response. Initial access to news space for the 
presentation of stands on significant public issues also is 
important. One solution would require the news media to 
dedicate a certain percentage of (paid) broadcast time or 
newspaper space for the discussion of important public 
issues. This intervention in the arena of first amendment 
rights could help reduce what has been called the 
"exploitation of a romantic theory of the first amendment 
for completely commercial and non-ideological ends" 
(129). By itself, however, this would not do much for those 
who do not have the resources to buy the advertising time. 



The FCC requirements (of course) cover broadcast media 
only — not newspapers. Yet it seems clear that measures 
similar to the FCC's public interest requirements could and 
should be applied to newspapers as well. One commentator 
has written quite accurately that "the right to expression is 
not very substantial if it can be exercised only at the will of 
those who manage mass communications" (124). He 
suggests that "freedom of the press includes the right of a 
party to rent the paper's facilities through its advertising 
department for the purpose of effectively presenting one's 
ideas" (125). It should mean more. 

In 1967, another commentator wrote that "too little 
attention has been paid to defining the purposes which the 
first amendment protection is designed to achieve and to 
identifying the addressees of that protection" (126). He 



Increased public access to the news media must be 
provided. Unless that access can be guaranteed on a regular 
basis, the huge potential value of the news media to fulfill 
the public interest will continue to be eclipsed by the 
seemingly limitless supply of banality and triviality they 
dispense and disperse daily (130). 

Of course, the educational media are also prospects. 
Montana soon will be involved in educational television. 
However, whether a publicly financed state educational 
channel will reach the audiences that also view the national 
network programs and advertisements is unknown. While 
adding an important dimension to broadcast media choice 
and quality, education media will not replace the need for 
right of access to the broadcast networks and newspapers. 



THE PUBLIC INTEREST 



The notion of the public interest (or the public good) is a 
most troublesome concept (131). It is fair to ask what is the 
public interest, if it exists at all? Who can present it? How do 
we know it when it is being argued sincerely? And how can 
public interest groups be certain that they are in fact 
representing the public interest? Troublesome questions. 
Some tentative reflections must be offered, however, since 
the public interest presumably is what is pursued through 
increased public participation. 

The public interest is not clearly articulated when a 
corporation, rightly concerned about its own profit picture 
and market position, presents its viewpoint on an environ- 
mental quality issue in isolation. Neither can weassume with 
assurance that the public interest will emerge from a 
number of parties each arguing his own special interest. 
Especially if public interest is viewed as extending to future 
generations, a clamor of present interest groups, each 
urging its own case, will not likely add up to a public interest. 
Finally, the notion of the public interest is not automatically 
a sure guide to making correct decisions. 



The public interest is most likely to be found, it seems, 
when: 

1. An agency clearly is charged with pursuing the 
public interest and is subject to judicial review to 
help insure that special interests are not dominant. 

2. Economically interested parties are present who 
can assure that the special interest issues in the 
controversy are clearly articulated. 

3. Public interest or citizen participants are present 
who have a clearly demonstrated commitment to 
the well-being of the public and to the quality of 
the environment, present and future; who have a 
less direct, preferably non-economic concern 
about the outcome; and who can make their voices 
heard and their positions felt. 

If the history of regulatory agencies is any guide the first and 
last categories are fulfilled rarely. Citizens may have little 



direct financial stake in a given decision. Hence citizens may 
have to invest time and energy without a chance of personal 
gain, beyond the satisfaction of finding the solution best for 
the public interest. Special interest tendencies of 
administrative agencies also may disillusion the concerned 
citizen. 



With all its difficulties, the notion of public interest at least 
adds an important dimension to public life. It suggests that 
there are principles that must be sought apart from special 
interests. Perhaps it is in the seeking of these principles that 
the public interest, however difficult to define, is 
approached. 



THE LIMITATIONS OF PARTICIPATION 



One commentator has written that citizen participation is 
not an end in itself (132). This is only partly correct because 
citizen participation is not just a means either. Participation 
in public life is important in its own right — but that is not to 
say it is without limitations. Writings on citizen participation 
tend to be uncritical; some of the more important 
limitations should be sketched for consideration (133). 

The most frequently cited limitation on citizen participation 
is the delay, obstruction, or cost problem. Full citizen 
participation does slow down decision making, and there 
certainly is a time when someone has to stop listening and 
decide. Time is "increasingly unforgiving," as one 
commentator has written. (134). Very carefully drafted 
emergency provisions are probably the best answers where 
speedy action is necessary, since decisions made without 
public participation always risk Ignorance of the public 
viewpoint. In fact, the clamor for increased citizen 
participation arose precisely because it was felt that the 
public viewpoint was being consulted inadequately. 

A second argument is that certain types of agency decisions 
will not be made any better by virtue of citizen participation. 
The claim is most frequently advanced in cases involving, for 
example. Atomic Energy Commission licensing procedures 
and other similarly complicated technical determinations 
(135). The thrust of this argument may be perilously close to 
adoption by the state Board of Natural Resources if early 
Indications prove true. 

Agencies will continue to be faced with technical decisions 
— matters of law, fact and engineering technicalities. But 
even the most technical decisions have policy implications 
that canot be left to technicians. For agencies, a critical task 
is to be certain not to exclude public interst testimony by 
harrassment of its spokesmen or understatement of its 
Importance. 

A third limitation of citizen participation Is the fact that it is 
costly and time-consuming for citizens. It is difficult to say 
how many citizens want to or would participate if the costs 
of participation and the opportunities for success were 
more favorable. The Bureau of Land Management recently 
has been seeking citizen understanding and input on range 
management planning. Citizens have been contacted and 
encouraged to attend field trips, demonstrations, and 
meetings for this purpose. The effort Is laudable, but it is said 
that very few people can afford the time to travel at their 
own expense and attend agency meetings or briefings. 



Some form of financed citizen participation needs to be 
considered because those least able to pay are least likely to 
participate in general. 

A final line of argument is the most serious. Increased 
citizen participation will not guarantee achievingthe public 
interest. Citizen participation does not, and probably 
cannot, insure that citizens will not simply argue their own 
self-interests. And, although general citizen self-interests 
are generally broader than the interests of (say) major 
corporations, they are not broad enough to constitute an 
overall interest. Moreover, citizen participation does not 
insure what can be called inter-generational equity — a 
central aspect of the public interest (136). Many who will 
share the costs and benefits of this generation's decisions 
are not here to participate. The preferences and values of 
the unborn are unknown to us. How can we be assured that 
the decisions we make will be good for the unrepresented 
future generations? For now, there are few very good 
answers to this vital question. More than any other 
previously cited difficulty, inability to see far enough ahead 
constitutes the greatest deficiency in citizen participation 
and public policy decision making, especially where 
environmental quality is at issue. 

Additional Reflections 

Increased citizen participation In environmental quality 
decisions should not be viewed simply as a means of conflict 
resolution or as an opportunity to mesh divergent opinions. 
In fact, fully operative citizen participation probably will 
clarify the contrasts among value choices, leading toward 
beneficial public dialogue and debate and heightened 
cooperation in search of solutions. 

Citizen participation should not be viewed simply as a 
generalized Increase in access to government although that 
would be Important. Citizen participation is one way to 
strike a fair balance between those who have a direct 
financial or commodity interest in decisions and those who 
do not. 

Those with large-scale financial interests in decisions nearly 
always are able to secure well-organized representation of 
their concerns. However, as has been noted throughout this 
paper, the public does not stand to realize immediate or 
tangible benefits and is not effectively organized for most 
decisions. In most cases, full citizen participation can help 
redress the imbalance and offer some assurance that a 
public viewpoint will be heard. 



Although it is fashionable to focus on establishing a process 
for citizen participation, it is also crucial to consider its 
substance. Why is citizen participation being encouraged? 
What is being sought? What effect will the participation 
have on actual decisions? How will citizens know of their 
part in the decisions? (137) These and other questions need 
to be answered if citizen participation is not to be a fad or a 
failure. 



13. See also Title 37, R.C.I 



rel Hatch v Murray 31 St. Rep. 753. 

riedman. A History of American taw (New York: Sitnon and Schuster, 



Public action based on principles rather than just self- 
interest is a key human virtue. Participation in political 
processes alone, no matter how carefully designed, will not 
assure that the human capacity for principled public action 
will be realized (138). There must always be a certain, messy, 
ad hoc character. Precisely from this character will arise 
some of the most important concerns in the pursuit of the 
public interest. 



19. 405 U. S. 727. 

20. Ibidem. 

21. Baker v 



, 369 U. S. 186. 204. 



23. 397 U. 5. 154. 



Public involvement and participation are vital to sound 
environmental decision making. As noted by Arnold Bolle, 
"effective public participation within the decision process 
of natural resource agencies is vital to environmental 
quality" (139). If "agencies" is expanded to include the 
private sector, the point is complete and well-taken. 

The constitutional, legislative, and judicial record of recent 
years at least reveals some concern with increased citizen 
participation. But unless Montanans are willing to 
experiment a little — perhaps along some of the lines 
suggested here — the promise of effective public 
participation could well be a hollow one. 

References Cited 



tion's Forests," Calit 



I taw Review 
airs," Public 



See, for example. Comment, "Public Participation in Federal Administrative 
Proceedings," University ot Pennsylvania (awRev/ew 120(1972); 702; Lloyd C. Irland 
and J. Ross Vincent, "Citizen Participation in Decision-Making. A Challenge for 
Public Land Managers," /ourna/ of Range Management 27(1974): 182; Victor Moore, 
"Private Interest and Public Participation." The Urban lawyer 4(1972): 475; John K. 
Boynton, "Acceptance of Public Particiipation," Adm/nisfrative Law Review 
24(1972): 43; )erre S. Williams, "An Evaluation ol Public 
Administrative law Renew 24(1972): 49; Robert T. Daland. " 
Administration: Sources o( Aid and Comfort?" Public Administration Review 
32(1972): 881; Comment, "Public Participation in Rulemaking Procedures Under the 
Outdoor Continental Shelf Lands Act," Iowa Law Review 56(1971): 696; James V. 
Cunningham, "Citizen Participation in Public Affairs," Public Administration 
Review 32(1972): 589; Roger C Cramton, "The Why, Whereand How of Broadened 
Public Participation in the Administrative Process," Georgetown taw journal 
60(1972): 525; and the other citations herein. 



John H, Strange, "The I 
Public Administration 
Conservation Foundattc 



ipact of Citizen Participation On Public Administration," 
Review 32(1972): 456; Conservation Foundation, 
1 Newsletter, Washington, D.C. March, 1973. 



Brian C. Cuff and Teresa A. Clark, "Standing and Environmental Litigation," Loyola 
of LA Law Review, 6(1973); 128; Joseph L. Sax. "Standing to Sue," Naturaf Resources 
lournal. 13(1973): 76; and Patricia L. Baude, "Sierra Club v. Morton," Indiana Law 
lournal. 48(1973): 197. 



Rule 23, Rules of Civil Procedure. 

See Christopher P, Bisgaard, "Expanding the Impact of State Court Class Aaion 
Adjudications," DCtA law Review 18(1971) : 1002; Victor R, Delle Donne and Robert 
O. Van Horn, "Pennsylvania Class Actions." Dickinson law Review 78(1974): 460; 
Note. "State Class Action Statutes: A Comparative Analysis," Iowa Law Review 
60(1974) : 93; and Rick Applegate, "Consumer Protection and the Class Action Suit," 
in Bill of Rights (Helena; Montana Constitutional Convention Commission Report 
No. 10, 1972), p. 313f. 

See Rule 24, Rules of Civil Procedure. 

See generally 3A, C. J. S. 421. 

Sec. 82-4216, (7) R.C.M.. 1947. 

Sees. 82-4218 and 82-4219, R.C.M., 1947. 

Calvert Cliffs v AfC, 449 F. 2d 1109, 1115 (1971). 

359 F. Supp. 1289. 

Willis C. Ceer, "Judicial Review of Administrative Decisions Under NEPA. ' landand 
IValer law Review, 9(1974) : 145, 161. See Stanley Conrad Fickle. "Recent Changes in 
the Scope of Judicial Control Over Administrative Methods of Decision-Making." 
Indians Law lournal, 49(1973): 118; and Hugh J. Varrington. "Judicial Review of 
Substantive Agency Decisions," South Dakota Law Review. 19(1974): 279, 290; For 
some healthy misgivings on this point, see Cynthia J, Bolbach, "The Courts and the 
Clean Air Act," Environment Reporter, Monograph No. 19 (Washington. D.C, 
Bureau of National Affairs, July 12. 1974), pp. 11-12. 

Sierra Club v. Froehike, 359 F. Supp. ' 

20731; and James E. Krier, "Environn 

Malcolm Baldwin, ed., taw and The Environment. (New York: Walker and Co. 

1970). See also. Ely v. Velde, 2 ERC 1779, 1785 and Greene County Planning Board v 

FPC, 455 F. 2d. 412 (2d. Cir., 1972), cert, denied, 41 U. S. L. W. 3184. 

359 F, SuppI, 1289, 1334, 

Lynton Keith Caldwell, Environment (New York: Anchor-Doubleday, 1971). 

Sierra Club v. Lynn, 364 F. Supp. 834 (WD. Tex, 1973). 



itional Convention 



7. Reported in the Missoulian (Missoula, Montana), November 14, 1974. 



9. Article XIII, Sec. 



. Article III. Sec. 5, 
, Article XIV, Sec, 8. 



12, Antonin Scalii 



See George Zunkev, "Costs," Land and Water Law Review, 9(1974): 553; Joseph H. 
King and Zygmunt J. B. Plater, "The Right to Counsel Fees in Public Interest Environ- 
mental Litigation," Tennessee taw Review, 41(1973): 27; James E. Rocup III, 
"Balancing the Equities in Attorney's Fees," Georgetown Law lournal. 62(1974): 
1439: and Peter Nussbaum, "Attorney's Fees in Public Interest Uligation," New York 
University Law Review 48(1973): 301 

P 1, 92-500. 86 Stat. «89. 



33 U. 5. C 411(1964). Roy M. Druley. "The Refuse Act of 1899," 

Reporter. Monograph No. 11(Washlngton, D.C. Bureau of National Affairs, January 

28, 1972). 

P. L. 92-500, 86 Stat. 889. See Elliot L. Richardson, Report ol the President. Acting 
Through the Attorney General, On The Feasibility ol establishing An environmental 
Court System (Washington.D.COffice of the Attorney General, October 11, 1973). 



See Richard J. Maddigan. "Quo Warranto to Enforce a Corporate Duty Not to 
Pollute the Environment," Icology Law Quarterly 1 (1971): 652; and 93-6401 el seq . 
RCM., 1947. 

Joseph L. Sax. "The Public Trust Doctrine in Natural Resource Law." Michigarj Law 
Review 68(1970): 490, John E. Montgomery, "The Public Trust Doctrine in Public 
Land Law," WiHamelle law Journal 8(1972): 1135; Frank B. Jackson, "Environmental 
Law - The Public Trust Doctrine," North Carolina Law Review 49(1971): 973; 
Bernard S Cohen. "The Constitution, The Public Trust Doctrine, and the 
Environment." Utah Law Review. (1970): 388; Edward gerlin, Anthony Z. Roisman. 
and Gladys Kessler, "Law in Action: The Trust Doctrine," in Malcolm Baldwin, ed.. 



P. L. 92-500, 86 Stat, 816. 



71. See, e.g. Michael Ryan. "The Role of Citizen Advisory Boards in Administration ol 
Natural Resources. "Oregon Law Review 50(1971): 153: Charles Reich. "The Public,' 
op. cit- for early background on the Forest Service. 



J. M. Kent, "Under the Ninth Amendment. What Rights Are Retained by the 
Peopled" Federal Bar lournal 29(1970): 219; J. J. Moore, "Ninth Amendment — Its 
Origins and Meaning." New [ngtand Law Review 70972): 215; Comment. "Ninth 
Amendment Vindication of LJnenumerated Fundamental Rights," Temple Law 
Quarter ly 42(1968): 46; and L. Rhoades, "The Ninth Amendment. "Denver Law 
lournal 50(1973): 153. 

Christopher D. Stone. Should Trees Have Standing^ (Los Altos: William Kaufmann. 
Inc.. 1974), Lawrence H. Tribe. "Ways Not to Think About Plastic Trees." Yale Law 
lournal, 83(1974): 1315; and for more general considerations supporting western 
philosophical traditions. John Passmore. Man's Responsibi/ity For Nature (New 
York: Charles Scribner's Sons. 1974). 

diction in Environmental Cases." Indiana Law 



USDA-FS-FES, Environmental Statement, Management Prescription for the 
Badlands Planning Unit, Little Missouri National Grasslands, Custer National Forest, 
Billings, Montana, September, 1974, and Final Environmental Statement. Little 
Missouri National Grasslands. Planning Unit. Custer National Forest, Billings, 
Montana. 

5 H. Klaman, "Public Participation in Technology 



See. for example. Marvin H. Bernstein, Regulating Business By Independent 
Commission (Princeton: Princeton University Press. 1955); Anthony Downs. Inside 
Democracy (Boston: Little. Borwn and Co..1%7); and Joseph L. Sax. op. cit.. note 17 

Article II. Section 8. For more on the right of participation, see Howard J, Kalodner, 
"The Right to Participation." in Norman Dorsen. ed. The Rights ol Americans (New 
York: Pantheon. 1971): 194. 

82A-101 el seq. R.C.M.. 1947. 

See Memorandum to Commission on Executive Reorganization, from Commission 
Staff. February 4. 1971. 

Consult Irving R. Kaufman. "Power for the People — and by the People," New York 
LIniversity Law Review 46(1971): 867; and Michael McCloskey. "Reorganizing the 
Federal Environmental Effort." Duquesne Law Review 11(1973): 478. 

Sec. 82-4201 el seq.. R.C.M.. 1947. 
5 use. 500 el seq and 701 el seq. 



Harvey Frauenglass. "Environmental Policy: Public Participation and the Open 
Information System," in Albert E. Utton and Daniel Henning, eds. fnvironmenia/ 
Policy (New York: Praeger, 1973). 



Sec. 50-1201 el seq RCM., 1947. 
Sec. 69-3818, RCM. 1947 

Sec. 69-4822, R.C.M., 1947; See also. Sec. 69-4219. R.C.M.. 1947 Sec. 93-701-4 i 
provides a potentially unconstitutional provision: 

There are particular relations in which it is the policy o( the law to 

confidence and lo preserve it inviolate; therefore, a person 

witness in the following cases . . . 



5. A public officer cannot be examined a 

in oHicial confidence, when the public interests would suffer by the 

disclosure. 

Attorney General's Opinions. Volume 35, No. 19, August 7, 1973. 

5 U. S. C. 552. 



Sec. 70-806. R.C.M., 1947. 
Sec. 70-811. R.C.M.. 1947. 



Sec. 



. R.C./ 



, 1947. 



Sec. 82-4202(3) and 82-4209 et seq., R.C.I 
Sec. 70-809, R.C.M., 1947. 
Sec. 70-810(1), R.C.M., 1947. 

'art 



ion Proceedings,' 
for Citizen Partit 



Sec. 82-4204(4), R.C. M., 1947 specif ically provides for such consultation by agencies. 

Article XI, Sec. 9. 

Article Vl, Sec. 7. 

Sec. 16-5116 el seq.. R.C.M., 1947. 



State Commission on Local Government, op. 



Quality Council. Montana Land Use Policy Study. Charles 
E. Brandes. research coordinator. (Helena. Environmental Quality Council. 
November 13. 1974). 



The term "private" needs explanation because so much activity conduaed in the 
private sector has enormous public implications. The distinction between private 
and public life is no longer a big difference, perhaps to the detriment of both 
spheres. See Hannah Arendt. The Human Condition (Garden City: Doubleday. 
1959). 

See. e.g . Robert L Heilbroner el al . In the Name ol Profit (New York: Warner, 
1973): Morton Mintz and Jerry S. Cohen, /America, Inc (New York: Dial, 1971); and 
discussion in, "The Greening ol the Board Room," Columbia lournal of Law and 
Social Problems. 10(1973): 15. 



See. e.g.. Richard J. Lipsey and Peter O. Steine 
Row. 1966). pp. 186-189; and Paul A. Samueisc 
Hill. 1967). pp. 88-90. 



Kenneth Salomon and Lawrence Wechsler, "The Freedom of Infi 
Critical Review," George Washington Law Review 38(1%9): 150 



Early ludicial In 
Freedom of Information Law." Fordham 



"The Relations of Power Needs to Population Growth. Economic a 
Social Costs." paper delivered to Congress on Environmental Health. Americ 
Medical Association, Chicago. III.. April. 1973. 



, 70-816(1) (d|, R.C.M., 1947. 



118, Rr.M..1947 



126. lerome A. Barron, "Access to the Press — A New First AtnentJmenl Right," Harvard 
Ljw Review, 80(1%7): 1641, 1648. See also, Alexander Meiklejohn, Po/il/ca/ freet/om 
(New York: Harper and Row, 1960). 

127 Barron, "Access," Ibid., p. 1678. 



Sec. 69-4206 el seq , R CM., 1947. 

107. "Greening," op. cil. 

108. Montana Secretary of State files, 29249, as revised Feb. 1, 1973, filed April 5. 1974. 

109. Burlington Northern, Ar^ryual Report to Shareholders, December 31, 1973, St. Paul, 

Montana Secretary of State files, 2411 (folder 2), filed April 4, 1974. 
111. loseph Sax, "The (Unhappy) Truth About NEPA," Ok/ahoma taw Rewew 26(1972): 



See also. Comment, "The Regulation of Competing First Amendment Rights," 
Univenity o/ Pennsylvania Law Review 122(1972): 1283; James R. Myers, "A Public 
Right of Access to the Broadcast Media," South Dakota taw Review, 19(1974): 167; 
Notes, "Radio and Television," Texas taw Review 52(1974): 797. 

For fuller discussion of these complexities, see Alexander Passerin d'Entreves, The 
Notion ol the Stale (Oxford: Clarendon Press, 1967): 222-230; Michael Rogin, 
"Nonpartisanship and the Croup Interest." in Philip Green and Sanford Levinson, 
eds.. Power and Community (New York: Random House, 1970): 112f, Brian Barry. 
"The Public Interest," and "Justice and the Common Good," in Anthony Quinton. 
Political Philosophy (Oxford: Oxford University Press, 1967) 112-126 and 169-193. 
Edwin T. Haefele, "Environmental Quality as a Problem of Social Choice," in Allen V. 
Kneese and Blair T. Bower, tnvironmenfa/ Quality Analysis (Baltimore: Johns 
Hopkins. 1972): 281-331; Clendon Schubert. The Public Interest (Clencoe: Free 
Press, 1960); Walter A. Rosebaum, The Politics ol Environmental Concern (New 
York: Praeger, 1973): 103-107; Richard E. Flathman, The Pub/ic /merest (New York: 
Wiley, 1966); Carl J. Friedrich, The Public Interest (Chicago: Atherton, 1962). 



315. 

3 F.R.C 32(1929). 

25 FCC. 2d 283, 292 (1970). 

13 FCC. 1246 (1949). 

9 FCC. 2d 921 (1967) and Bamhal v fCC 405 F2d. 1082 (DC Cir 1968) 

24 FCC. 2d 743 (1970). See also 1 ELR 30036. 

1 ELR 30043. 

But, see also, 1 ELR 30041. 

fOf V. fCC, 449 F. 2d 1164 (1971). 

See John De |. Pemberton, Jr., "The Rights of Access to Mass Media," in Norman 
Dorsen, ec. The Rights of Americans (New York: Pantheon, 1971), pp. 276-2%; and 
Barron, "An Emerging First Amendment Rights of Access to the Media," George 
Washington taw Review 37(1969): 487. See also, "Concepts of Broadcast Media 
Under the First Amendment," New York University law Review 47(1972): 83. 



Douglas F. Duchek, "Constitutional Law: The Right of Access to the Press,' 
Nebraska Law Review, 50(1971): 120, 125, and Note, "Conflict Within the Firsi 
Amendment," New York University Law Review 48(1973): 1200. 



For fuller discussion of citizen participation, its limits and values, see Robert Pranger, 
The fc/ipse of Citizenship (New York: Holt, Rinehart and Wilson, 1968); Joseph 
Tussman, op cit , Edgar S. Cahn and Barry A. Passett. Citizen Participation: Effecting 
Community Change (New York: Praeger. 1971); Carl Cohen. Democracy (Athens, 
Georgia: University of Georgia Press, 1971); and Terrence E. Cook and Patrick 
Morgan. Participatory Democracy (San Francisco: Canfield Press, 1971). For some 
less enthusiastic views of citizen participation, see Scott Greer. Governing the 
Metropolis (New York: Wiley and Sons. 1%2); Edward C. Banfield and James Q. 
Wilson, City Politics (Cambridge: Harvard University Press, 1%3); Robert A. Dahl, 
Who Governs' (New Haven: Yale University Press, 1%1); and Dahl, Polyarchy (New 
Haven: Yale University Press, 1971). 



135. W. Thomas Jacks, "The Public and the Peaceful Atom," Texas taw Review 52(1974) : 
466; Chisman Hanes, "Citizen Padicipation and Its Impact Upon Prompt and 
Responsible Administrative Action," Southwestern taw journal. 24(1970): 731; and 
George W. Johnston, "AEC Rulemaking and Public Participation," Georgetown taw 
journal 62(1974): 1737; and Kloman. op. cit. 

136. Consult Hanslonas, ■TechnologyandRe5ponsibility,"5ocialResearch40(1973): 31. 

137 On the limits of process analysis, see, for example, Allen Schick, Systems Politics and 
Systems Budgeting," in Leslie L Roos,Jr., The Politics offcosuicit/e (New York: Holt. 
Rinehart, and Wilson, 1971): 135f. 

138. See Hannah Arendt, The Human Condition, op cit. 



Duchek, Ibid, p. 136. 



Environmental Efforts In 
The 1974 Legislature 



Introduction 



by 
David Kinnard 
Legal Assistant 



Environmental measures played a significant role again this year in the 
legislature. Legislators considered a substantial number of environment- 
related bills introduced during the session as well as a sizeable number of 
bills held over from the 1973 session. 

Yet, for one reason or another, most environmental measures, some 
containing significant environmental concepts, were killed. The major 
enacted bills of the 1974 legislature are discussed below. 



Coal and Energy 
Development 



The vast implications of coal and energy development in 
Montana were again the driving force of environmental 
issues in the 1974 session of the 43rd Legislative Assembly. 
The energy resources in Montana are being challenged by 
an ever-increasing demand as the nation and the world 
finds itself in the midst of a far-reaching energy crisis. While 
the crisis has been realized, the actual development of a 
national energy policy is piecemeal and barely embryonic. 
What Montana's role will be in the formulation of that 
policy depends on the state efforts toward a state energy 
policy. 

Strip Mine Siting 



In the Strip Mine Siting Act (SB 681) the legislature 
attempted to provide for long-range preplanning, exami- 
nation, and control of new strip mine locations which are 
permitted under the Strip Mining and Reclamation Act 
(Title 50, Chap. 10, R.C.M. 1947). Anyone intending to 
operate a new strip mine involving the removal of more 
than 10,000 cubic yards of mineral or overburden is subject 
to the act. 



locations relative to the potential adverse environmental 
impact on the air, water and land is recognized. The act vests 
the Department of State Lands with the authority to review 
new strip mine locations and reclamation plans and either 
approve or disapprove locations and plans. An applicant 
must receive a mine site location permit before beginning 
even preparatory work on a mine site, unless the mine 
already has a permit under the reclamation act which 
included a long-range mining plan approved by the 
department. The inclusion of site preparation (construction 
of roads, railroad spurs, draglines and other mining 
appurtenances) was important because the reclamation act 
regulated only prospecting. Site preparation was allowed 
without approval by the department. 

Eminent Domain 

The privilege of private corporations to use eminent domain 
for "public uses" was scrutinized by the 1974 legislature. 
One result was HB 1,009, which includes the commence- 
ment of eminent domain proceedings within the meaning 
of "commence to construct" in the Utility Siting Act. The 
requirement restricts condemner's use of eminent domain 
to secure land or right-of-way for a utility to the special case 
of facilities for which a certificate has been acquired under 
the siting act. 



The importance of proper planning for new strip mine The passage of HB 1,101 was directed to another side effect 



of energy development, the procurement of water for 
industrial development and consumption. Prior to HB 1,101, 
the existing eminent domain laws combined with the 
provisions of Art. IX, Sec. 3(2) of the Montana Constitution 
to allow non-governmental entities to condemn land- 
owners in eastern Montana to obtain industrial water 
reservoir sites. Water speculators hoped to net tremendous 
profit by selling the precious water to developers of 
Industrial facilities made feasible, ironically, by the 
speculators' activities. The act, however, restricts the 
exercise of private eminent domain rights: "Provided, 
however, that such reservoir sites must possess a public use 
demonstrable to the district court as the highest and best 
use of the land." 

Coal Taxation 



Coal taxation again stimulated heated debate in the 
legislature this year. Legislators were unable to agree on an 
equitable and adequate system of taxation to assure that the 
state would share in the benefits of coal development. 
Finally, late in the 1974 session, the two houses agreed that 
the taxation of fossil fuel industries deserved a thorough 
analysis. Three resolutions, HR 45, HR 93, and SR 83 
established an interim legislative committee to study fossil 
fuel taxation and directed it to report findings and propose 
legislation to the 1975 legislature. 

The legislature enacted HB 576, a holdover from the 1973 
session. It authorized presentation of a constitutional 
amendment to the voters. In November, the amendment 
passed easily and elevated the Resource Indemnity Trust 
Fund, established by the 1973 legislature, to constitutional 
status, so that succeeding legislatures cannot violate the 
original intention to provide financial security for the 
people of Montana against environmental damage from the 
extraction of nonrenewable resources. 



Ceothermal Development 

The potential for development of Montana's geothermal 
energy resources also was considered in two bills enacted by 
the legislature. The first, HB 1,010, includes the use of 
geothermal or other underground resources within the 
definition of utility facility, and so placed geothermal 
energy facilities under the Utility Siting Act. HB 1,010 
expands the definition of "commence to construct" in the 
siting act to include the "fracturing of underground 
formations by any means, if any such activity is related to the 
possible future development of an underground facility 
employing geothermal resources." 

Another bill, SB 640, provides for the leasing of state lands 
for geothermal resource development. The act provides for 
a primary lease term of 10 years, which may be extended as 
long as geothermal resources are produced in paying 
quantities. The rental on the leases must not be less than $1 
an acre and/or a royalty of not less than 10 percent of the 
value of energy produced. The act could provide substantial 
trust income for state lands if geothermal energy were 
developed on state lands; however, increased technology 
development and exploration would be needed first. 



Land Use Planning 

The 1974 legislature devoted considerable attention to land 
use planning measures, seeming to recognize that if 
Montanans hope to preserve some vestiges of the wide 
open spaces as an integral part of Montana tradition, they 
must at least monitor and regulate the ever mounting 
pressures of land development. 

Reclassification of State Lands 

In passing HB22,the legislature took a new look at the cate- 
gories by which state lands are classified for management 
purposes. The act amends Sec. 81-302, R.C.M. 1947, to 
establish a new land use category for state lands. Before HB 
22, under Sec. 81-302 state lands classifications were limited 
to grazing, timber, agriculture or urban uses. Such 
categories were required under Art. XVII of the 1889 
Constitution. Art. X, Sec. 11 of the new Constitution simply 
states that "all public lands shall be classified by the board of 
land commissioners in a manner provided by law." 

The new categories allow classification for grazing, timber, 
crop production or other uses. HB 22 requires the depart- 
ment to evaluate all state lands for alternative land uses and 
to manage the land with alternative values in mind. Many 
potential uses will have to be evaluated and policies 
proposed before the Board of Land Commissioners can 
establish a working multiple use management system for the 
state's 5.25 million acres of grassland and forests. 



Natural Areas 



The 1974 legislature recognized the peril of misuse and 
overdevelopment of land possessing scenic, educational, 
scientific, biological, and geological values by passing the 
Montana Natural Areas Act (HB 628). A natural area is 
defined as an area of land "which must generally appear to 
have been affected primarily by the forces of nature with the 
visual aspects of human intrusion not dominant," and 
possessing one of the act's recognized land value 
characteristics. 

The act provides an orderly system to preserve and protect 
such lands and retain the integrity of their natural eco- 
systems for future generations to enjoy. The Department of 
State Lands is required to inventory state land for significant 
natural areas and to collect information on natural areas 
existing on other land. Natural areas can become part of the 
system in one of five ways: designation by the Board of Land 
Commissioners on land controlled by the board; 
designation by the legislature on state-owned land; 
acquisition of private land with the consent of the land- 
owner; gifts of land accepted by the board; and trade or 
exchange of trust land for federal, county or private lands of 
equal value and approximately equal area. Once any natural 
area is so designated, it is protected from any land use or 
condemnation action which would affect adversely the 
integrity of the area, unless the legislature allows an 
exception. 

The governor has established an advisory council under the 
natural areas act to advise the board on administration and 



acquistion of natural areas. The department planned to 
issue draft rules on the designation and management of 
natural areas for public comment before the end of the year. 
And a citizens' group, the Montana Natural Areas Com- 
mittee, planned to coordinate the many Montana groups 
interested in the preservation of natural areas and 
ecologically fragile land. 

Subdivision Regulation 

The Subdivision and Platting Act of 1973 contained 
problems in definition and administration that plagued 
developers and admin istators alike. HB 1 ,017 was an attempt 
to solve those problems. New definitions are offered in the 
amendments for "division of land" and "occasional sale." 
The definition of "division of land" is significant because it 
includes contract for deed sales and so makes them subject 
to the requirements of the act. 

Also included in the amendments is a redefinition of 
"subdivision" (". . . a division of land, or land so divided, 
which contains one or more parcels containing less than 
twenty (20) acres . . .") which alleviates some of the problems 
in the original definition!". .., or land so divided into two (2) 
or more parcels, whether contiguous or not, any of which is 
ten (10) acres or less. . ."). Condominiums constructed on 
land divided in compliance with the act are exempted from 
its requirements. County clerks are authorized to refuse to 
record any documents purporting to convey land in 
violation of the act. The amendments exempt the sale, rent 
or lease of portions of buildings from the act. The park 
dedication requirement also was modified to require that 
the dedicated park area be a fractional portion of the sub- 
division itself, rather than of the entire platted area 
including streets. 

Floodway Management 

The Floodway Management Act was amended in the 1974 
session to make it responsive to local needs. The amend- 
ments allow political subdivisions to establish separate land 
use regulations for the areas within the floodway (channel 
of a watercourse and adjoining areas which would carry and 
discharge floodwaters) and floodplain (area adjoining the 
watercourse which would be covered by the floodwater of 
the 100-year flood as designated by the Board of Natural 
Resources). 

The new amendments also permit certain land uses, 
including residential, commercial and industrial structures, 
within the floodplain but outside the boundaries of the 
floodway. Because boundaries of floodways are ambiguous, 
such uses actually could be in hazardous areas and could 
weaken the intent of the Floodway Management Act. 



Water 



Appropriation and Use 



The appropriation of water for coal and energy develop- 
ment was a primary consideration of the 1974 legislature. 
When SB 728 was introduced in late January, Governor 
Thomas L. Judge said the rush for water appropriations 
related to coal development in the Yellowstone Basin 
threatens the economic llfeblood of the state's billion- 



dollar agricultural industry. The legislature reacted swiftly 
by approving the bill. It bans the appropriation of any large 
diversions of water from the Yellowstone Basin for three 
years — time to allow the state to determine how much 
water remains unappropriated and how It should be put to 
use. The Yellowstone River has an average annual flow of 
about 9 million acre-feet of which agricultural enterprises 
currently divert about 2.3 million acre-feet. The problem 
arises in dry years — about one in every four — when the 
basin's average flows decrease to less than 2.6 million acre- 
feet — just enough to supply current agricultural needs. 
Coal and utility companies have requested more than 3.3 
million acre-feet per year of the basin's water. Hence there 
is a potentially serious conflict between the supply of water 
available in the basin In some dry years and the demands 
made on that supply. 

The water moratorium passed as SB 728 applies to all 
applications for permits under the Montana Water Use Act 
to appropriate surface water from any part of the Yellow- 
stone River Basin for either or both of the following uses: a 
reservoir of 14,000 acre-feet or more, or a flow rate greater 
than 20 cubic feet a second. The Department of Natural 
Resources and Conservation may not take any action on 
such applications until March 11, 1977, or until a final 
determination of existing water rights has been made. 
Exempted from the provisions of the act are applications to 
appropriate water for utility facilities for which a certificate 
of environmental compatability and public need is granted 
under the Utility Siting Act (Sec. 70-810 R.C.M. 1947). 

The act also prohibits the federal government from applying 
for a water reservation in the basin until the determination 
of water rights has been completed. Only state agencies, 
municipalities, and irrigation associations are permitted to 
apply for reservations in the basin. Primary emphasis In 
granting such applications will be to protect existing rights 
and to ensure minimum flows for the protection of aquatic 
life. 



Others 



Additional measures enacted by the legislature and related 
to the environment Include: 

Economic Analysis 

The legislature recognized the basic Interrelationship that 
exists between economic and environmental concerns 
when it passed House Join Resolution 73. 

The resolution directs the EQC to elicit from state agencies a 
"thorough economic analysis" as a part of environmental 
Impact statements. The legislature said that the economic 
aspects of the total human environment had not been 
represented adequately in the environmental impact 
statement preparation and review process. 

Saline-Alkali Study 

The threat mposed by saline-alkali damage to the natural 
resources of Montana was addressed by two bills passed by 
the 1974 legislature. The first, HB 755, directed the Depart- 
ment of State Lands to study saline-alkali damage and 
execute programs necessary to correct the damage. 



-119- 



Governor Thomas L. Judge vetoed this bill, however, on the 
grounds that some of the administrative functions of a 
council established by the act would conflict directly with 
the Constitution, and the authority of the Board of Land 
Commissioners. The governor emphasized that his veto did 
not preclude the establishment of a saline-alkali control 
program. Such a program was funded by SB 737, which the 
governor later signed, thus appropriating $10,000 for the 
remainder of fiscal year 1974 and $255,685 for fiscal year 1975 
for a study by the Department of State Lands and 
development of state programs to control saline-alkali 
problems. The appropriation should allow the department 
to establish a program to gather data and make 
recommendations concerning the prevention and control 
of saline-alkali damage in the state. 

Noise Pollution 



noise — an important, but often overlooked aspect of 
pollution. SB 479 established a decibel limit for motorcycles 
operated on the streets and highways. The act created a 
graduated scale of allowable noise ranging from 92 db. (for 
motorcycles manufactured before 1970), to 70 db. (for 
motorcycles manufactured after 1987). HB 989 similarly 
established a decibel limit for snowmobiles. 

Speed Limit 



The legislature enacted two bills to control excessive 



A prospective loss of federal highway funds forced the 
legislature to enact a 55 m.p.h. speed limit for the state. 
Aside from the intended fuel conservation benefits, the 
speed limit also has decreased the number of highway 
fatalities in the state according to the Highway Patrol. It is 
worth noting that while the nation and state reeled under 
the impact of an energy crisis, a speed limit was the only 
significant energy conservation measure passed by the 1974 
legislature. 



EQC Operations 



The work of the Environmental Quality Council staff under Sec. 69-6514 of 
the Montana Environmental Policy Act (MEPA) is diverse and demanding, 
providing exciting opportunities to investigate, analyze and make 
recommendations concerning the profound and rapid environmental 
changes buffeting a developing Montana today. This report's emphasis on 
the problems and challenges of land use represents one aspect of the 
council's work in fulfilling its responsibilities under MEPA — to report 
results of work specifically requested by the Legislative Assembly — but 
simultaneously fulfills an array of other EQC mandates under MEPA to 
document trends, review programs, and in general "foster and promote 
the improvement of environmental quality to meet the conservation, 
social, economic, health and other requirements and goals of the state" 
(Sec. 69-6514 (c) ). 

The chronicle of activities that follows records further EQC efforts as the 
Legislative Assembly's authoritative source of information on the state of 
the state's environment and on the status of agency activities that affect the 
conditions under which Montanans and their natural environment can 
coexist in productive harmony. 



The 1973 legislature directed EQC to undertake two 
comprehensive state policy studies — one on land use, the 
other on energy. Additional funding for the studies was 
provided by a $150,000 grant from the Ford Foundation. 
Walter I. Enderlin, an environmental engineer, joined the 
EQC staff in July 1973 to coordinate the Montana Energy 
Policy Study. Also in July 1973 Charles E. Brandes, a regional 
planner, accepted the responsibility for the Montana Land 
Use Policy Study. The Second Annual Report summarized 
the progress of these two studies. 

As reprinted in this Third Annual Report, the Montana Land 
Use Policy Study was a major EQC accomplishment during 
the past year. Publication of the full report in November, 
1974 marked the "coming of age" of the EQC in the sense of 
being able to produce research-policy reports capable of 
assisting state legislators and providing interested citizens 
with the in.'ormation required to participate effectively in 
the decision making process. 

Work on the Montana Energy Policy Study did not proceed 
as smoothly. A major obstacle was the absence of a model 
that could provide guidance for the systematic integration 
of different kinds of data. Another complicating factor was 
Walt Enderlin's decision to leave EQC for a research position 
with the Battelle Laboratory in Richland, Washington. 



Dana H. Martin, another environmental engineer who had 
worked for EQC the previous summer and produced an 
excellent report on energy conservation, was hired to finish 
the study. The major task was to assemble Enderlin's 
material on various energy sources, add a new section on 
coal, and somehow shape it into a coherent unit organized 
around a state energy policy. Ms. Martin was ably assisted in 
this effort by Thomas W. Frizzell, a student at Montana State 
University. When Dana left in September she had produced 
a roughdraftwhich,whilefallingshortof our objectives, did 
get the material together in one place for critical review and 
revision. The task of reorganizing the Montana Energy 
Policy Study fell to Tom Frizzell. New material on energy 
demand, rate structures, and the policy implications of the 
concept of "net energy" was prepared by Richard L. 
Bourke, who joined EQC in February 1974 as staff 
economist. Material on alternative energy sources was 
provided by William Tomlinson, an EQC consultant in 
Missoula. 

The EQC Montana Energy Policy Study will be available in 
early 1975. Like the Montana Land Use Policy Study it fails to 
include draft legislation to implement its major 
recommendations. Nevertheless, the study, like its land use 
counterpart, provides a valuable handbook of basic data 
and will help shape the energy-related legislative agenda for 
some years to come. 



The EQC has been a leader within the state in saline seep 
research. Work by EQC ecologist Loren Bahls and Montana 
Bureau of Mines and Technology hydrogeologist Marvin 
Miller reported in the Second Annual Report was 
instrumental in providing the 1974 legislature with the 
information that led to the creation of the Saline-Alkali 
Advisory Council attached to the Department of State 
Lands. During the summer of 1974, Dr. Bahls supervised 
additional work by Michael Harlow which resulted in the 
publication of Environmental Impacts of Saline Seep in 
Montana (September, 1974). 

Harlow's report has been widely circulated and is in much 
demand. The Cooperative Extension Service at Montana 
State University is preparing a summary of the report for 
distribution to farmers and ranchers throughout the region. 

At its December 6, 1974 meeting the EQC endorsed 
Harlow's report and directed the staff to bring the 
conclusions and recommendations to the attention of the 
proper authorities. Those conclusions and recommenda- 
tions were as follows: 



Report Conclusions 

1. Saline seeps constitute a severe threat to the land and 
water of Montana. 

2. Saline seeps have increased greatly during past wet 
cycles, and the present high water tables and land use 
patterns virtually assure new growth and outbreaks 
during future normal and wet years. 

3. Saline seeps have four components: recharge area, 
subsurface water table, discharge area, and surface 
drainage. Adverse environmental impacts occur as 
direct and secondary results of discharge and surface 
drainage. 

4. Surface drainage is operative primarily during heavy 
rainstorms. 



5. Surface drainage from saline seeps threatens water 
quality and all ecosystems in contact with waters 
polluted by this drainage. The damaging agents are 
currently under investigation; they are assumed to be a 
combination of heavy metals, high TDS, and high 
nutrient levels. Sediment from erosion of soils also 
degrades surface water quality. 

6. Adverse on-site environmental impacts include: a) 
formation of saline soils due to saturation of exchange 
sites with sodium; b) loss of present vegetation due to 
soil saturation, osmotic disruption of plant processes, 
and specific ion toxicities; c) drastic changes in micro- 
climate due to loss of cover and presence of a salt crust; 
d) invasion by halophytic annual weeds; e) virtually 
complete disruption of animal habitats; f) susceptibility 
to sheet and gully erosion and wind erosion; g) 



deterioration (to an unknown extent) of shallow 
aquifers, with possible effects on domestic and stock 
water wells. 



7. Off-site impacts are not fully documented at this time. 
Known adverse off-site impacts include: a) leaching of 
salts, heavy metals, and nutrients into surface waters of 
the state b) eutrophication and saline stratification of 
ponds and reservoirs, and loss of trout fisheries; c) 
poisoning of livestock under certain circumstances; d) 
loss of surface drinking water for big game and other 
wildlife, with consequent habitat disruption. 



8. Control of saline seep is technically possible using 
known methods, although practical problems, 
especially agricultural economics, remain to be solved. 
A great deal of additional experimentation and 
demonstration work is needed. 

9. The 4-probe soil resistivity technique offers a practical 
and economical method for diagnosing the features of 
individual saline seeps, and for monitoring treatment 
progress. Calibration of the technique in terms of the 
many geologic variables is proceeding, and a handbook 
is being prepared for use of the 4-probe on a wide-scale 
field basis. 

10. Education of farmers, about the problem and the 
alternatives for controlling it, is sorely needed. Much 
has been done along this line by individuals but an 
organized and properly funded effort is needed. It is 
critical that this education effort include information 
about the environmental impacts of saline seep, and of 
the various alternatives. The present narrow focus on 
agricultural technology and economics is under- 
standable, but unfortunate. This focus should be 
expanded to explain the broader implications of 
control alternatives to complete the farmers' 
information set during his inevitable decision-making 
effort with regard to saline seep. 



11. Data, needed for a complete evaluation of the environ- 
mental impacts of saline seep, are not currently avail- 
able. Some important new information is now being 
collected and evaluated, and this new information will 
modify and extend the interpretations expressed in the 
body of this [the saline seep] report. 



12. A well-publicized saline seep information clearing- 
house is needed, especially for collection and 
investigation of reports of livestock, wildlife, and 
fisheries damage due to saline seep, and for 
coordination of research. The Department of State 
Lands is well situated for such a function, and could 
incorporate it into its present saline seep program. 



13. Specific information on the toxicity of saline seep to 
livestock, wildlife, and fishes is not now available. 
Research into this subject is essential for interpretation 



of impacts of existent or projected levels of surface 
water pollution. 

14. The alternative methods for control of saline seep 
involve manipulation of the hydrologic factors of the 
recharge, and/or subsurface storage and drainage 
components. Saline seep cannot be cured by 
manipulations of the discharge area. 

15. Ranked in order of decreasing adverse environmental 
impacts, the currently known control technologies 
include: 



Artificial subsurface drainage with untreated 

surface disposal. 

Artificial drainage with evaporative lagoon 

disposal. 

Artificial drainage with fossil-fueled desalinization. 

Intensive or annual cropping methods. 

Intensive cropping with perennial barriers. 

Artificial drainage with solar-powered 

desalinization. 

Recropping with deep-rooted perennials in 

recharge area. 

Native or reestablished grasslands on recharge 

area. 



Report Recommendations 



unknown parameters of saline seep impacts on the 
environment. Much of this work could be 
accomplished by research projects at the graduate and 
undergraduate levels in the fields of terrestrial ecology, 
aquatic biology, limnology, water resources 
management, wildlife biology, rural economics, game 
management, sociology, land use planning, bio- 
chemistry, and toxicology. This potential source of 
manpower and expertise has not been adequately 
tapped in the past. 

b. Continue to fund the current establishment of a water 
quality monitoring network for saline seep. Expand this 
system to provide representative trend data for all areas 
of the state which are afflicted with saline seep. 

c. Coordinate the various agency and commercial labora- 
tories which test water samples originating from seep- 
polluted sources. This should be a task for the state 
clearinghouse. 

d. Initiate formal research into the water budget of the 
native prairie ecosystem, to discover the precise 
mechanisms which allow it to fully utilize available 
water and prevent deep percolation. Apply this 
information to agricultural practices. 

e. Expand the effort to calibrate the 4-probe resistivity 
technique: initiate a broad effort to fully evaluate its 
potential for diagnosis and monitoring of saline 
groundwaters. If the technique continues to look 
promising, the instrument should be widely distri- 
buted and field personnel should be trained to use it. 



a. Establish, fund, and staff a well-defined and adequately 
publicized central clearinghouse function within the 
Department of State Lands for collection and dis- 
semination of information on saline seep; generation 
and storage of data, reports, and research; 
coordination of research efforts; and investigation of 
Incidents. 

b. Continue to fund Cooperative Extension Service and 
Agricultural Research personnel for dissemination of 
current state-of-the-art information on farming 
economics and techniques, and the environmental 
consequences of these techniques. 



Pending results of the Environmental Protection 
Agency biological study on the Highwood Bench, 
additional research into the effects of saline seep on 
fisheries and water quality should be given top priority. 
The state clearinghouse should coordinate the efforts 
of Federal, state (Fish andCame, Water Quality Bureau, 
Department of Natural Resources and Conservation), 
and university research personnel in carrying out a 
broad investigation of the long-term impacts of saline 
seep on the surface waters of Montana. 

Initiate live model (bioassay) studies on the toxicology 
of saline seep. 



c. Clarify and make public the legal implications of saline 
seep pollution, especially regarding artificial drainage 
into surface waters of the state of Montana. 

d. Fund and provide expert technical assistance for 
frequent farm management seminars on saline seep, to 
provide a forum for exchange of ideas, experiences, 
and mutual aid. 



Involve the state's university system in disciplines other 
than agriculture. Much research is need on the many 



Control and Reclamation 

a. Artificial drainage with untreated surface disposal 
should be discouraged. Techniques for disposal by 
injection should be studied further to evaluate the 
ultimate fate of the water. 

b. Desalinization, especially techniques using solar 
distillation, should be evaluated for use in areas where 
artificial drainage is under consideration. 

c. On-going agricultural research into Intensive cropping, 
use of barriers, water-efficient crops, and deep-rooted 
perennials in the recharge area should be continued, as 



these techniques must ultimately be adopted in most 
areas. This research should be coordinated with efforts 
by the Montana Department of Fish and Game to re- 
introduce wildlife into these areas where feasible. 

d. Marginal and submarginal agricultural land in recharge 
areas should be returned to grass cover, preferably 
native prairie species. 

e. The Agricultural Stabilization and Conservation Service 
should recognize the serious consequences of un- 
controlled saline seep. This agency should revise its 
national policy, to make saline seep control measures 
eligible for cost-sharing programs on an equal basis 
with soil erosion control measures. 

f. The federal government and the state should give 
serious consideration to establishment of "land bank" 
type program, to compensate farmers for loss of agri- 
cultural production due to recharge control and 
reclamation techniques, and to encourage cooperation 
among farmers with saline seep systems whose 
component parts are divided by a property line. 

EQC actively assisted legislators during the 1973 session. The 
council endorsed an ambitious legislative program (see 
Second Annual Report, pp. 76-79) and the staff was actively 
engaged in drafting legislation, preparing amendments, 
testifying, and providing research material requested by 
individual legislators. The EQC staff provided services for 
some 100 bills having some environmental significance, 
including major efforts for the following: resource 
indemnity trust fund, inclusion of geothermal in utility siting 
act, reclassification of state land, natural areas, subdivision 
amendments, stream preservation, sulfur tax, shoreline 
preservation, and environmental education. 

In January, 1974, Fletcher E. Newby, EQC executive director, 
announced to the council that he was resigning to become 
deputy director of the Montana Department of Fish and 
Game. The council advertised the position. Eleven 
applications were received. In March, the council reduced 



that number to six candidates who appeared to meet the 
qualifications of Sec. 69-6511 : Donald Beuerman, a chemist 
at Montana College of Mineral Science and Technology; 
Donald Bianchi, Fish and Game Department Information 
chief of the Bozeman district; Elmer Gless, a biologist at 
Montana College of Mineral Science and Technology; 
Spenser Havlick, natural resource specialist at San Jose State 
University, California; John Reuss, political scientist and 
director of the Gallatin Canyon Study at Montana State 
University; and Charles Tulloss, chief of recreation 
assistance with the Bureau of Outdoor Recreation, Denver. 
In April, the council narrowed the choice to Gless, FHavlick, 
Reuss, and Tulloss and interviews were scheduled for 
meeting of the council on May 10. On June 21, 1974 the 
council named John W. Reuss to succeed Fletcher E. Newby 
as EQC Executive Director, effective July 1, 1974. 



As a relatively new agency with a small, young professional 
staff and a modest budget, the EQC has performed well 
given its awesome responsibilities in Sec. 69-6514 of the 
Montana Environmental Policy Act. Each year the EQC 
improves on skills gained the previous year and moves 
forward to a new challenge. The EQC Montana Land Use 
Policy Study and Montana Energy Policy Study are evidence 
of the staff's keen ability to provide the legislature and 
people of the state with research-policy documents of a 
quality unexcelled in state government. EQC administration 
of the environmental impact statement process helps assure 
that actions taken by state agencies having significant 
environmental impacts activate the EIS process. No other 
device has so forcefully challenged bureaucrats to examine 
their assumptions, anticipate decisions and allow citizens to 
participate in making the decision. Lastly, the EQC review of 
state agency programs and reports to the governor and 
legislature on state agency compliance with MEPA assist the 
legislature in judging how well the agenciesare carrying out 
the legislative intent. These EQC activities help ensure that 
agencies perform as directed by the legislature, that govern- 
ment decision making be as open as possible, and that state 
agency decisions have as little adverse environmental 
impact as practicable. 



Background Information on Water, Land and Energy Available 



An annotated bibliography on pertinent eastern Montana 
wafer resource literature is available for inspection at EQC 
offices in Helena. The material was compiled in 1973 by Bob 
Anderson, once an EQC consultant and now a doctoral 
candidate in environmental engineering. 

An in-depth report, "The Potential for Energy Conservation 
in Montana," also is available from the EQC. Although 
necessarily dated in its discussion of energy policy, the 1973 
report (classified as a review draft) contains useful statistics 
on energy sources, supplies and conservation. The author is 
Dana Martin, former energy policy study coordinator. 

More historically useful background is contained in two 



other 1973 EQC reports. "Ponderosa Pines Ranch, A Subdi- 
vision Case Study," and "A Perspective on Subdivision 
Activity in Montana's Bitterroot Valley," both available from 
the EQC upon request. Authors of the reports are Kenneth 
F. Porter and Tina Torgrimson, respectively. 



Detailed information on the results of the 1974 EQC Land 
Use Questionnaire is available for inspection at EQC offices 
in Helena. The survey polled all 56 boards of county 
commissioners, 59 boards of conservation district super- 
visors and 69 city, city-county and area-wide planning 
boards. The combined response of the survey was reported 
in the EQC News, Vol. 2 No. 3 (Sept. 12, 1974). 



State Agency Programs and 
Activities 



Introduction 



a review by 
Kenneth F. Porter 
Research Assistant 



Toward fulfillment of the requirements of Sec. 69-6514 of the Montana 
Environmental Policy Act (see Appendix B), this section reviews six of the 
many state agencies responsible for programs and activities that affect the 
environment and the conservation, development and utilization of natural 
resources. Further review of agency activities, particularly in connection 
with land use policy, is in the Montana Land Use Policy Study* featured 
earlier in this report and, in connection with energy policy, in the Montana 
Energy Policy Study** drafted by the EQC for the 1975 legislature. 
Reviewed here are the Departments of Public Service Regulation, State 
Lands, Natural Resources and Conservation, Health and Environmental 
Sciences, Fish and Came and the activities of the Montana Energy Advisory 
Council (MEAC), an intragovernmental review arm of the executive 
branch. 



The Department of 
Public Service Regulation 

The Department of Public Service Regulation and its policy 
making governing board, the Public Service Commission 
(PSC), is responsible for regulating rates and services of 
Montana railroads, motor carriers, pipelines and utility 
companies. The department's major goal, as stated in its 
1974 Annual Report to the Governor, is "to assure the 
consumer of safe and adequate transportation and utility 
services at just and reasonable prices." 

The legislature has given the PSC authority to supervise, 
regulate, and control public (including municapally owned) 
utilities that provide water, electricity, gas, power, 
telephone or telegraph service. Every aspect of state utility 
operation is controlled except activities (planning and 



construction) covered by the Utility Siting Act of 1973. The 
PSC's regulatory authority over the utility industry could 
play a significant role in the conservation of natural 
resources and enforcement of an energy policy for 
Montana. 

The significance of PSC authority in energy policy and the 
conservation of natural becomes visible in the case of 
railroad regulation, for example, because railroads are 
much less energy consuming than either air or motor 
transportation. It is yet undecided, however, just what part 
the PSC could have in a state policy to foster use of energy 
saving transportation or inexpensive rates for transportation 
of recyclable materials. Regulation of the transportation 
industry has a definite effect upon energy use, however. 



'Discusses policies of the Departments of Fish and Game, Health and Environi 
Sciences, Highways, Intergovernmental Relations, Natural Resources and Conser' 
State Lands, Revenue and powers of county governments as they relate to lani 

'Particularly Appendixes F and C of the Energy Policy Study. 



—125- 



Other significant decisions affecting the conservation and 
prudent use of energy-related natural resources could lie in 
the PSC's reconsideration of established rate structures for 
power utilities. The effect of rate structures (the system 
determining price of energy for various customers and 
quantities) on consumption can be illustrated w^ith the 
example of natural gas. 

The PSC has established a block rate structure in which the 
price per unit of gas declines as more is used. This structure, 
known as quantity discounting, hinges on the premise that 
average consumer costs decline as production increases — 
to reflect what are known as economies of scale. Changes in 
the national economy and in the availability of natural gas 
have made the premise — and the practice of quantity 
discounting — highly questionable. 

Montana Power Co.'s natural gas rates for residential 
customers can be used as an example. For residential 
customers, the first thousand cubic feet (1 mcf) cost $2.97 a 
month (which happens to be the minimum monthly bill). 
For the next 99 mcf, the price is 88.1 cents per mcf. Use more 
than 100 mcf a month receives further price breaks. The 
table illustrates the declining block system: 



Declining Block Rate Structure* 

(Montana Power Co.) 

used (mfc) Customer cost (cents per mcf a month) 



residential users and small commercial businesses, 
however. Some industry boilers are designed to use two or 
more types of fuel; in such cases the demand is elastic 
(changeable in response to price). However, if the industry 
already is committed to gas-fired machinery, it might be 
costly to replace boilers. It should be noted that the 
industrial sector has the ability to greatly increase the 
efficiency of the processes which use natural gas, thus 
conserving fuel and lowering industry demand. In this 
sense, too, industrial demand is very elastic. 

The existing rate system thus encourages the excessive 
consumption of natural gas. Through individual flat rate 
contracts, industry is allowed to use a rapidly declining 
supply of natural resources at a price much lower than its 
marginal cost. Similar arguments can be made against the 
use of the declining block rate structure for electricity.* 

Past rate setting by the Public Service Commission generally 
has disregarded environmental considerations of its 
decisions, looking instead at the rate of return necessary to 
protect the investment of the utilities. But rates and rate 
structures can affect profoundly both consumer demand 
and energy resource conservation. 

The 1974 legislature expanded the PSC to five members 
elected from five separate districts across the state. The 
commission is empowered with statutory authority 
sufficient to make it an influential policy maker in the 
energy field. The new commission could begin by 
committing itself to a comprehensive examination of rate 
structures, setting timely reviews, and following the 
procedures established by the Montana Environmental 
Policy Act necessary for significant decisions affecting the 
environment and the guidelines promulgated by the 
Environmental Quality Council on preparing environ- 
mental impact statements. 



Department of State Lands 



The declining block rate structure encourages consumption 
by offering a lower price per unit of product for increased 
consumption. But in the case of natural gas, supply is 
declining and price is rising. Hence the declining block rate 
structure fails to reflect the actual additional cost incurred in 
producing additional units of natural gas and so violates a 
fundamental principle of economics, marginal cost pricing. 
Under conditions of restricted supply and rising prices, 
then, the rate structure should reflect increased prices for 
increased use. Currently it does not. 

Both the residential and commercial sectors are controlled 
by a declining block rate structure, but individual industries, 
which account for about 50 percent of the natural gas 
consumption in Montana, are given individual contracts at 
flat rates that are a third to a half of the residential unit price. 

The demand for natural gas for residential users is more 
inelastic than for industrial users. As prices rise, residential 
consumers are reluctant to shift to other energy sources 
until it is time to buy new equipment such as stoves and 
heaters. The industrial sector is relatively more elastic than 



By the Enabling Act of 1889, Congress granted two sections 
of land in every township in the state to Montana for 
support of the common schools. To this land the act and 
other subsequent acts granted acreage for additional 
educational and institutional purposes. The proceeds from 
the sale of these lands and the income from their use are 
placed in a permanent fund and must remain forever 
inviolate. 

Originally created by the 1889 Constitution, the Board of 
Land Commissioners now has the authority to "direct, 
control, lease, exchange and sell school lands which have 
been or may be granted for the support and benefit of the 
various state educational Institutions" (1972 Constitution, 
Art. X Sec. 4). 

The Department of State Lands has responsibility for 
administering state land and the various laws and regula- 
tions pertaining to it. The department is responsible for the 
leasing of state-owned land and the reclamation of mined 



Energy Policy Study. Appendix A. 



land in the state. The department currently enforces an no- 
lease policy for coal on state land. Prospecting for coal Is 
being permitted, however, under contractual agreements 
with the board. Four reasons for this policy have been 
offered by the department: First is the doubtfulness of 
reclamation; there is no proof that reclamation is always 
feasible everywhere. Second is the low price of Montana 
coal. Third, the department wishes to assess the amount of 
coal actually on state lands before resuming leasing. A 
fourth reason has to do with the timing of federal coal land 
leases adjacent to state lands. It is said that simultaneous 
leasing by the state and the federal government will draw a 
price higher than if the state leases before or after. 

The department is responsible for the following mining and 
reclamation acts: the Strip Mining and Reclamation Act 
1973 (Sees. 50-1034 to 1057*), the 1971 hard rock mining act 
for the reclamation of mining lands (50-1201 to 1226), the 
Strip Mined Coal Conservation Act 1973 (50-1401 to 1409), 
and the Strip Mine Siting Act of 1974 (50-1601-1617). The 
1972 Montana Constitution requires that "All lands 
disturbed by the taking of natural resources shall be 
reclaimed. The legislature shall provide effective require- 
ments and standards for the reclamation of lands disturbed" 
(Art. IX, Sec. 2). The legislature apparently intended the 
mining and reclamation acts to fulfill the constitutional 
provision. The Strip Mining and Reclamation Act requires 
miners to obtain an annual permit from the Department of 
State Lands and also requires a comprehensive reclamation 
plan to be submitted with an adequate performance bond 
before strip mining is allowed. The act specifically refers to 
coal and uranium. It forbids the strip mining of certain lands 
because of their unique or unusual character. Theso-called 
hard rock mining act of 1971 covers the mining of any ore, 
rock, or substance other than "oil, gas, bentonite, clay, coal, 
sand, gravel, phosphate rock, or uranium" (50-1203). The act 
requires the reclamation of all explored, developed and 
mined land and the submission of a reclamation plan in 
advance of any activity. The Strip Mined Coal Conservation 
Act gives the Department of State Lands the authority to 
review strip mine plans and to disapprove them if market- 
able coal would be wasted. The Strip Mine Siting Act gives 
the department control over the location of new strip 
mines. No preparatory work may be done at a mine site until 
a permit s issued under the law. 

The four mining reclamation laws have given Montana 
unprecedented control over strip mining — heretofore 
considered insignificant or ignored altogether. There 
remain though, many serious problems. Reading the Strip 
Mining and Reclamation Act of 1973 can give a deceptively 
secure feeling to those concerned with reclamation. Serious 
questions of value and definition remain unresolved. For 
example, part of the Strip Mining and Reclamation Act says: 

(2) The department shall not approve the 
application for prospecting or strip mining 
permit where the area of land described in the 
application includes land having special, 
exceptional, critical, or unique characteristics, 
or that mining or prospecting on that area 
would adversely affect the use, enjoyment, or 
fundamental character of neighboring land 



having special, exceptional, critical, or unique 
characteristics. For the purposes of this act, 
land is defined as having such characteristics if 
it possesses special, exceptional, critical or 
unique: 

(a) biological productivity, the loss of which 
would jeopardize certain species of wildlife or 
domestic stock; or 

(b) ecological fragility, in the sense that the 
land, once adversely affected, could not 
return to its former ecological role in the 
reasonable foreseeable future; or 

(c) ecological importance, in the sense that 
the particular land has such a strong 
influence on the total ecosystem of which 
it is a part that even temporary effects felt 
by it could precipitate a system-wide 
reaction of unpredictable scope or 
dimensions; or 

(d) scenic, historic, archeologic, topographic, 
geologic, ethnologic, scientific, cultural, or 
recreational significance. In applying this 
subsection, particular attention should be paid 
to the inadequate preservation previously 
accorded Plains Indian history and culture (50- 
1042). 

The subsection specifically states the department has a duty 
not to approve any applications for prospecting or strip 
mining where the land area has the characteristics listed. 
With the possible exception of subsection 2d, however, 
there is much latitude for discretion. The department's 
Reclamation Division has applied for a grant to develop a 
"land unit classification system." The system would provide 
some way of presenting different variables and values in a 
matrix system that would give a yes or no answer for mine 
applications. It is difficult to predict the success of such a 
system but it could at least provide a guide or inventory of 
important ecological characteristics. 

The Reclamation Division apparently has played down its 
duty to deny applications on these grounds even where 
possibility of ecological damage was evident. Applications 
for continued mining by the Decker Coal Company at 
Decker, Montana and a new mining permit for Western 
Energy Company at Colstrip both were approved by the 
department although serious environmental questions 
existed. The environmental impact statement (EIS) prepared 
for the Decker permit stated "Since there are now abundant 
concentrations of saline-alkali salts at Decker the problem 
of revegetating the graded and retopsoiled spoils becomes 
more pressing. Drought and saline-alkali tolerant species 
must be utilized in revegetation processes. It has not yet 
been proven that adaptable species exist or can be used. 
Even tolerant species tested have had a very low success 
ratio" (1). Unresolved even now is the possibility of the salts 



contaminating surface and ground waters. The EIS prepared 
for the Decider permit also failed to mention the possibility 
of effects on ground water created by cutting and removing 
the coal seam aquifer — which since has been shown to 
lower the level of groundwater and introduce soil 
contaminants that affect water quality. The removal of a coal 
seam aquifer is thought to produce the effect of a dam on 
the flow of underground water. The dam effect is said to be 
compounded as more mines disturb water bearing coal 
seams. The consequences of strip mining on the availability 
and quality of water are known to be serious but research 
and experience has not been able to show how extensive. 

Considering the legal mandate and the constitutional 
precepts on reclamation of mined land, the EIS prepared by 
the Department of State Lands for the Decker mine was 
inadequate in substance. The procedural requirements of 
the Montana Environmental Policy Act (MEPA) also were 
skirted (2). To the extent that reclamation of mined land is an 
unproven art in Montana, it would seem prudent for the 
Reclamation Division and the department to deny mining 
applications that are attended by unresolved significant 
ecological problems. The reclamation law may have been 
designed to prevent unnecessary land abuse, but the legally 
available control is useless unless it is asserted on behalf of 
the legislature. 

Another problem forthe Reclamation Division has been the 
enforcement of the Strip Mined Coal Conservation Act. The 
original plan for Western Energy's Colstrip minecontended 
that the McKay Seam (the second seam from the surface) 
lacked marketability in the usual course of trade. The 
Decker Coal Company similarly maintained that the D-2 
(second from the surface) seam of their mine was not 
strippable economically because of its depth, among other 
engineering and equipment problems. A review of Western 
Energy's economic study made by a Department of Inter- 
governmental Relations economist at the request of the 
lands department said that "the 'unmarketability' 
contention does not appear realistic." Even with much 
prodding by the department. Western Energy still was 
unable to find a market forthe McKay seam. The permit was 
issued when it was proven to the department's satisfaction 
that the seam was unmarketable. A spokesman summarized 
the department's conclusion by saying there is better quality 
coal available at cheaper prices. 

Decker was allowed to skip the second seam because its 
contention could not be disproved without a very extensive 
economic analysis of the company's operation. The depart- 
ment's economic review stated, "The company officials 
appear to be generally receptive to the idea of mining the 
D-2 seam coal, but not at the expense of causing a massive 
disruption in their current mining plan. The one year 
approval by the Department of Lands on the Decker permit 
largely reflects these realities" (3). 

Staffing obviously Is crucial to the division's ability to handle 
the diverse questions involved in reclamation. The division 
currently has an authorized strength of 15 in a wide range of 
technical fields. Two of these positions are currently vacant 
but the division hopes to fill them with persons in range 
management and hydrology. In July of 1975 there will be 



two new positions. One of those positions should be filled 
by an economist. 

The Reclamation Division now makes approximately 1,800 
inspections a year concerning almost 1,200 different mines 
and permits. The division opened a Billings office 
December 23, to save time and travel and also make it 
possible to do more inspections in the Fort Union coal area. 

According to the Reclamation Division, some coal miners 
have not complied with the reclamation act. A spokesman 
explained that the miners are slow to achieve reclamation 
standards. Many of the problems that arise seem to stem 
from operators' unfamiliarity with reclamation laws; the 
strip miners are from anoter era when reclamation was done 
voluntarily or not at all. One of the most serious problems Is 
forcing the coal companies to plan ahead; planning Is a 
function that must be an integral part of strip mining if 
meaningful reclamation is to take place. 

Within the mining and reclamation laws there also appear to 
be serious deficiencies in the laws' ability to handle mining 
problems of the foreseeable future. The mining and 
reclamation laws are presently written to cover two separate 
categories: method of mining and type of minerals. By using 
these two categories the legislature has left significant holes 
in the mining and reclamation laws. 

Three acts previously discussed, the Strip Mining and 
Reclamation Act, the Strip Mined Coal Conservation Act, 
and the Strip Mine Siting Act plus the Open Cut Mining Act 
all refer to a method of surface mining. The Open Cut 
Mining Act refers to the surface mining of bentonite, clay, 
scoria, phosphate rock, and sand or gravel. The act requires 
the miner to enter into contract with the state for the 
reclamation of those mined lands and allows the state to sue 
for breach of contract. The so-called hard rock mining act 
for the reclamation of mining lands is categorized by a 
number of minerals and specifically excludes the coal, 
uranium, and underground phosphate. 

The hard rock mining act requires reclamation of mined 
land, whether mined by surface or underground methods, 
but only for the minerals specifically listed. Taken together, 
the laws fail to ensure reclamation of surface land 
(disposition of tailings piles, correction of mine mouth dis- 
turbances) disturbed by the underground mining of coal, 
uranium and phosphate. This is true despite the fact there Is 
good potential for underground mining for these minerals 
in Montana. In fact, new exploration for underground 
phosphate mining continues near Gold Creek west of 
Garrison. 

The hard rock mining act has other problems. It makes most 
of the information contained in the mining applications — 
even the names of the companies that are exploring in the 
state — confidential. The confidentiality provision of the act 
contradicts both the 1972 Montana Constitution (Art. II, Sec. 
9, the right to know) and the Montana Environmental Policy 
Act, which required full disclosure of the impact of agency 
actions significantly affecting the human environment (such 
as the granting of mining permits). 



—128— 



Montana law contains other serious deficiencies regarding 
reclamation of mined land. There is no control over the use 
of acid solution mining, an extremely dangerous and 
potentially polluting mining method commonly called in 
situ mining. Another critical problem is the lack of adequate 
bonding under the Open Cut Mining Act to ensure 
reclamation. The bonding limits are presently set at a 
minimum $200 and a maxium $1000 per acre. Bonding 
preferably should prevent the state from ever having to 
reclaim mined land; at the very least, the bond should be 
adequate to cover costs of a complete reclamation project. 
A practical minimum bond should be about $1500 and 
extend to a maximum of $5500 per acre. Bonding is 
inexpensive compared to most mining costs and is good 
preventive medicine.* 



Department of 
Natural Resources 

The Department of Natural Resources and Conservation 
(DNR) has profound influence on the environment, energy 
and land use of Montana. The Energy Planning Division, Oil 
and Gas Conservation Division, and the Water Resources 
Division are discussed below. 

The Energy Planning Division administers the Utility Siting 
Act of 1973. The act gives the division the authority to 
require and review long range planning by certain utilities 
and to give approval to energy generation and conversion 
plant sites and associated facilities such as transmission lines. 
Fees may be charged for environmental investigations. The 
act also requires preconstruction certification of the 
"environmental compatibility and public need" of such 
facilities. Final decisions on most energy related facilities are 
made by the Board of Natural Resources. 

Because of the scope and power of the Utility Siting Act, the 
Energy Planning Division is perhaps chiefly responsible for 
crucial and delicate balancing of energy needs and environ- 
mental protection in Montana. 

Interpretation appears to be one of the most severe 
problems with the act. Most court cases involving the Utility 
Siting Act hinge on definition of crucial portions of the law. 
Cases have been taken into court to determine what 
constitutes a "transmission line" under a certain circum- 
stance or what is "construction" for the purpose of 
interpreting the grandfather clause. A clarification of these 
and other vague terms within the law could aid the depart- 
ment and reduce litigation on matters of definition rather 
than the actual merits of a case. 

Another, and possibly more serious, problem may involve 
determination of need. The act does not define need or 
spell out what is meant by "public need." It would not be 
surprising, especially considering the controversial 
generating facilities in the Colstrip area, to see court tests 
concerning the definition of "environmental compatibility 
and public need." 

One apparent major oversight of the act is its failure to 



include natural gas pipelines in the definition of energy 
facility. The impacts of natural gas pipelines on the environ- 
ment may be at least significant as a power transmission line. 

Fees under the act vary according to the size of the 
proposed facility. Allowable fees appear substantial enough 
to finance department preparation of adequate environ- 
mental impact statements, and meet all the investigatory 
requirements of the act. 

The Energy Planning Division completed two major 
environmental impact statements in 1974. The first, on the 
water supply system and other associated facilities of 
Colstrip Units No. 1 and No. 2, primarily was an after-the- 
fact academic exercise. The second was on a 230-kilovolt 
Colstrip-to-Broadview transmission project. The trans- 
mission line review is one of the best examples so far of a 
systematic, interdisciplinary approach to decision making. 
The corridor for the transmission project was chosen by the 
Energy Planning Division. It did not coincide with the one 
preferred by the applicant (Montana Power Co., et al). The 
difference between the two corridors, as explained in the 
environmental impact statement, is "the extent to which 
they create new linear patterns. A totally new corridor 
across farms and undissected landscape is created by route 
A [preferred by the applicant). In contrast, corridor F [DNR's 
preferred route] takes advantage of existing corridors over a 
sizable portion of the route. Although this may not be 
without some drawbacks, it certainly is less limiting on 
future land use." 

The other issue involved in the Colstrip-to-Broadview 
transmission line concerns the construction of support 
towers. The department advised the Board of Natural 
Resources and Conservation to approve its preferred 
corridor and to delay decision on the towers until the 
decision on generating Units No. 3 and No. 4 could be 
made. The power company had stated its intention to build 
towers to handle the projected 500-kilovolt output of the 
proposed Units No. 3 and No. 4. Because the application for 
Units No. 3 and No. 4 was made before the application for 
the transmission line, the board did not have to decide on 
the transmission line before the decision for the generators. 
In spite of this and against the recommendations of the 
department, the board recently approved the proposed 
transmission towers. 

The draft EIS on the proposed 700-megawatt power plants at 
Colstrip was released Nov. 25, 1974, and a series of public 
hearings was begun across Montana to summarize the 
impact statement information. The department intended to 
analyze additional information, perform further 
calculations, consider the public commentary solicited at 
the hearings and make a final departmental 
recommendation to the Board of Natural Resources and 
Conservation in late January, 1975. 

The Energy Planning Division has installed a permanent 
sophisticated computer system to store mapped resource 
inventory information for ready recall and use in selection 
of transmission line corridors. 



premiums lor bonds are approximalely 1 



I of bonded face value. 



The Oil and Gas Conservation Division of DNR has made its 
greatest impact on energy by developing and encouraging 
secondary oil recovery techniques. Montana's production 
of oil increased 2 percent from 1972 to 1973; the division, in 
its 1973 annual review, attributed the increase to secondary 
recovery. 

Secondary recovery techniques are not vk-ithout environ- 
mental consequences. One secondary technique is to pump 
water down into a well to float up the remaining oil. Often 
oil wells simultaneously produce a certain amount of water 
and this has been recycled for secondary recovery. When 
there is no water to recycle, the recovery technique 
becomes water consumptive. A source of fresh water is 
found to pump into the wells. This water is lost for all 
practical purposes. The most important effect in some 
situations has been a drastic lowering of the level of ground 
water that was previously used for domestic and stock 
purposes. 

The Water Resources Division was created with the 
abolition of the Water Resources Board (which began with 
the Water Resources Act of 1967). The two major laws 
administered by the division are the Water Resources Act 
(Title 89, Chap. 1) and the Water Use Act (Title 89 Chap. 8). 
The Water Resources Act gave the division responsibility for 
developing a state water use plan. The Water Use Act was 
designed to determine the existing water rights in the state, 
to centralize the records of all existing water rights, and to 
adjudicate those rights in local district courts. These two acts 
have great significance in the development of energy and 
land resources within the state and the region. The determi- 
nation of water rights and the data provided by the division's 
water studies should play a profound part in future energy 
and land use decisions of the state. 

The water law of western states including Montana has 
operated under an appropriation rights doctrine in which 
the beneficial use (as defined by each state) of water is the 
basis, the measure, and the limit of the water right. The first 
beneficial appropriation is first in right. Appropriations are 
for a definite rate of diversion or amount of storage. The 
appropriation right is obtained and sustained only by actual 
and continuous beneficial use. Failure to make beneficial 
use of an appropriation may result in its loss. 

With the implementation of the Water Use Act, water rights 
are to be established with certainty for the first time in 
Montana. The statewide inventory process is time 
consuming, however, and complicated by demands on 
water for possible energy use. The immediate concern of 
the Department of Natural Resources and Conservation, 
many of the ranchers and farmers of the area, and 
recreational users is protection of existing rights. Problems 
concerning competition for use and the validity of existing 
rights are compounded during low flow periods. The lack of 
any coordinated or standardized records has been a major 
complication in the determination of water rights in 
Montana. 

The conflict between the national goal of energy self- 
sufficiency and the future of Montana's resources, 
particularly water, should be of paramount concern to 



Montana citizens. Many recent federal programs and 
policies are in direct opposition to those of Montana. One 
example is the policy of making federally controlled water 
available to corporate industrial lessees at the same time 
federal coal is being leased; another is leasing of federal 
lands without the demonstration of substantial need. Such 
actions can be seen as further erosions in citizen control of 
the future of Montana and the Montana way of life, to say 
nothing of the conflict with local and state planning efforts 
now underway. One cannot underestimate the inter- 
connection of water and energy development and land use. 
The effects of energy development on the state and the 
diversion of water for that industral use probably will mean 
an important decline in agricultural land use in the area 
along with the ensuing economic and social troubles. 

Centra! to the issue of energy development is the 
Yellowstone Water Moratorium that went into effect March 
11, 1974. The three-year moratorium was enacted largely to 
give the state time to study the implications of energy and 
coal development in the Yellowstone River Basin. The 
moratorium suspends for the three-year period the granting 
of any new water permits of substantial size. According to 
the Water Resource Division, only a fraction of the neces- 
sary studies in the Yellowstone Basin under the Water Use 
Act will be completed at the end of the moratorium in 1977. 

Of the major drainages in the Yellowstone River Basin 
scheduled for water rights determination under the Water 
Use Act, only the Powder River Basin is expected to be 
adjudicated by the end of the moratorium. The drainages 
which will not be finished include the Tongue River, 
Rosebud Creek, Armells Creek, Sarpy Creek, The Big Horn 
River, and the Clarks Fork of the Yellowstone 

The Powder River Basin was chosen to lead for several 
reasons: it is an area with sparse population, little irrigation, 
no Indian water rights, and in an important coal develop- 
ment area. The Water Rights Division is still revising its 
methodology. Division officials fully expect to have to 
change their approach once they get the experience of 
working with district courts in determining water rights. 

In 1950 the Yellowstone River Compact was signed by com- 
missioners for the states of Montana, North Dakota, and 
Wyoming and ratified by the Montana legislature in 1951. 
All existing water rights in the Yellowstone River Basin and 
the right to supplemental waters to satisfy existing rights 
were continued. The remaining waters were apportioned to 
the states according to fixed percentages as found in the 
compact for each individual drainage of the Yellowstone 
River covered by the compact. The agreement has remained 
largely ineffectual because water rights existing as of the 
date of the compact were never determined; hence the 
correct apportionment of waters to the states could not be 
determined. The lack of a systematized water rights 
determination in the state has made the adjudication of 
water rights very complicated and confusing. The question 
of the Indian water rights expands these troubles. 

Indian water rights is a complicated legal question and 
appears to be predicated on treaty relationships with the 
federal government. Just as the states have little or no 



—130— 



control over federal waters so it is with Indian waters. One of 
the most heated issues surrounding Indian water rights 
concerns the extent of Indian ownership. Speaking for 
many Indians, an intertribal agency has proclaimed rights to 
all waters arising on, flowing through or underlying the 
various reservations. Their argument is strong, but 
opponents question the quantity of water available and 
belonging to the Indians. 

In a legal memorandum prepared for the Montana Attorney 
General's office in July, 1974, the Department of Natural 
Resources and Conservation made these conclusions (4): 

1. Reservation Indians have a reserved water right in 
the waters arising on, flowing through or under- 
lying the various reservations. A pro-rated share of 
the reserved right is an appurtenance to allotted 
reservation land, regardless of the owner. 

2. The reserved right is not subject to regulation or 
control by the state. 

3. The reserved right is not subject to regulation or 
control even when exercised on allotted lands 
owned by non-Indians. 

4. The state may regulate those waters which arise on, 
flow through or underlie the lands of an Indian 
reservation and which are surplus to the Indians' 
reserved right. Persons wishing to obtain rights in 
such surplus waters should apply for state permits. 

5. The state may join the United States in a water 
rights determination proceeding in order to assert 
the Indians' reserved rights. (It should be noted 
that DNR's conclusions are not an official position 
of the state of Montana, but they do present well- 
researched legal reasoning on the subject.) 

The determination of Indian water rights will have 
important implications on the availability of water for both 
energy and irrigation development in the future. How much 
water is available, and who controls it could make a 
considerable difference in the energy development and 
therefore the life of a large and agriculturally important 
region of Montana. 

Department of Health and 
Environmental Sciences 

Most of the environmental protection programs and 
activities of the Department of Health and Environmental 
Sciences fall under the direction of the Environmental 
Sciences Division. The most important laws concern air and 
water quality. 

The laws relating most directly to air pollution control are 
the Clean Air Act of Montana (Title 69, Chap. 39) and the 
Federal Clean Air Act Amendments of 1970. The state law 
gives broad control and regulatory authority to the Board of 
Health and the department. Montana's air quality laws and 
standards are among the most stringent in the nation, and 



they appear to be fairly well enforced, although several 
financially powerful corporations hold variances. 

The federal Clean Air Act delegates responsibility for 
enforcement of federal standards to the states. Montana's 
laws were interpreted by her Attorney General as providing 
sufficient authority to the department to accomplish the 
purposes of the federal act. States are required to prepare a 
plan to attain air quality at least equivalent to national 
standards as well as retain air quality that currently is better 
than the standards. The so-called implementation plan must 
include procedures to prevent developments that would 
violate the regulations. 

The Montana implementation plan, which has been 
approved by the Board of Health, has been mired in a 
number of procedural and court complications since the 
beginning of 1972. Officially, although the plan has been 
disapproved by the federal government, it still Is considered 
to have the force of law in Montana. Here Is its policy 
statement: 

it is hereby declared to be the policy that ambient 
air whose existing quality is better than the 
established standards, will be maintained at that 
high quality unless it has been affirmatively 
demonstrated to the Department of Health and 
Environmental Sciences of the State of Montana 
that a change is justifiable as a result of necessary 
economic and social development vital to the state 
(5). 

Similar prohibitions in the federal Clean Air Act led to a 
court suit against the Environmental Protection Agency, 
whose general regulations were said to be insufficient to 
prevent "significant deterioration" of regional air quality. 
The Supreme Court agreed and ordered the EPA to prepare 
specific regulations. A draft proposal released in August, 
1974, essentially would allow degradation of a state's clean 
air up to national secondary standards with and only with 
the approval of the individual state. Hence the EPA would 
relegate responsibility for prevention of significant air 
quality deterioration to the states. Court challenges to the 
EPA's non-degradation proposal has been announced. 

In response to a petition by the Northern Plains Resource 
Council and the Rosebud Protective Association, the 
Montana Board of Health on November 22, 1974, verbally 
expressed a desire to move ahead on the non-degradation 
clause in the implementation plan. Although there was no 
firm commitment, the board assented to a cooperative 
effort between the petitioners and the department to 
establish procedures and regulations for a non-degradation 
rule. The board either will deny the petition or Initiate the 
rule making procedure In Its January, 1975 meeting. 

The move by the petitioners appears to be an attempt to 
control large industrial developments such as the proposed 
coal-fired generator Units No. 3 and No. 4 at Colstrip. Two 
issues likely to emerge from the promulgation of rules 
under the non-degradation clause would be, how to deter- 
mine what is "significant" deterioration and what 
constitutes "necessary economic and social development 
vital to the state." 



-131- 



The Montana Water Pollution Control Program prepared in 
response to EPA requirements has been effective in 
pollution control and abatement. After the enactment of 
Montana's first water pollution control law in 1955, water 
quality standards, classifications of stream use, and 
minimum requirements for waste water treatment were 
created for nearly every stream in the state. After the enact- 
ment of the federal Water Quality Act in 1965 the state 
began what became a major rewrite of the 1955 standards 
that appears in the water pollution control act of 1967 (Title 
69, Chaps. 48 and 49). The 1971 legislature added a non- 
degradation clause at Sec. 69-4808.2. 

In addition to its regular functions of regulating water 
pollution and water supplies in the state, the Environ- 
mental Sciences Division ispreparingforthreewatersystem 
studies for which it has received grants. The first study 
concerns the impact of Yellowstone River water with- 
drawals on water quality. The study is funded by the Old 
West Regional Commission and is directly related to eastern 
Montana coal development. An EPA grant is for study of 
effects of waste on the Yellowstone River near Billings. The 
study eventually will help control the wastes of individual 
polluters. The waste level of the Yellowstone may well be 
the limiting factor of industrial development considering 
the costs of available water pollution control technology. 
Although effluents are controlled as individual sources, the 
non-degradation policy established by the legislature may 
preclude the siting of industrial development which, 
despite use of available technology, would measureably 
increase stream pollution. 



benefits man derives from wildlife without damaging the 
capability of the animals and their environment to continue 
to provide those benefits. Montana's strategic plan should 
be ready for operation by January of 1976. 

The Montana legislature enacted The Nongame and 
Endangered Species Conservation Act in 1973. The act 
requires the management of nongame wildlife and its 
habitat, and the protection of endangered species. It 
provides the necessary authority to the Department of Fish 
and Game to begin and sustain the program. 

The act defines nongame wildlife as "any wild mammal, 
bird, amphibian, reptile, fish, mollusk, crustacean or other 
wild animal not otherwise legally classified by statute or 
regulation of this state" (26-1802). Any animals that have 
been designated as predators by the legislature are 
excluded from the act. 

The first priority of the nongame species program in the 
department is to inventory the nongame wildlife species in 
the state, determine their status, and define their range of 
habitat. There are estimated to be about 700 nongame 
species in the state. The department will try to secure the 
limited habitat of rare or endangered nongame wildlife. If 
certain species appear to be threatened the department 
may ask the legislature to place them on the endangered 
species list. The department also is considering two other 
classifications that would describe slightly lower levels of 
danger or threat to specific wildlife. The labels may include 
"threatened" and "rare." 



A grant also has been made under Sec. 208 of the federal 
Water Control Act for area-wide water quality planning. The 
planning is to be done for Montana's entire coal develop- 
ment area, essentially from Billings to Miles City. The 
division is to develop policies within the planning area that 
will result in long-term enhancement of water quality. The 
Environmental Sciences Division believes the policy making 
to be a form of land use decision making for industrial 
development and energy generation. 



Department of 
Fish and Game 



The Department of Fish and Game has three programs that 
should be mentioned. The first of these, which began in 
January of 1973, is the department's comprehensive long- 
range planning program. The plan is being designed, 
according to its project director, to meet the requirements 
of Sec. 69-6504 of the Montana Environmental Policy Act. A 
few of its long-term goals are the protection of wildlife and 
habitat and the determination of peoples' values as they 
might relate to the Fish and Game Department. 

One portion of the long-range plan will develop manage- 
ment strategies for the important groups of wildlife, 
especially those species which may be threatened. The 
long-term planning for Montana may be modeled after a 
strategic plan developed by the State of Colorado. 
Colorado's plan was described as an effort to maximize the 



The department will make "recovery plans" and set up 
recovery teams to work on individual endangered species. 
This is expected to be done through cooperative agree- 
ment with the federal Department of Interior. The state 
appears to meet the qualifications necessary to gain federal 
cooperation and substantial matching funds for the 
program. 

The third program, which is still in an embryonic stage, is a 
long-term biological study of the grizzly bear. The program 
is to be directed by Charles Jonkel. an internationally 
acclaimed bear expert. Dr. Jonkel stated that habitat is one 
of the most important variables and most abused of the 
grizzly's needs. He hopes to get the bear placed on the 
endangered species list. The bear's habitat presently is in 
serious jeopardy; without needed habitat the grizzly will 
cease to exist. 



Montana Energy 
Advisory Council 

The Montana Energy Advisory Council (MEAC) was 
reorganized from the Montana Coal Task Force on April 23, 
1973 to advise the governor and other public officials on 
energy problems and issues. It also promotes and 
coordinates research on energy related development. 
FHeaded by Lieutenant Governor Bill Christiansen, with 
members from 10 state agencies, MEAC has achieved much 
in energy policy and research assistance. The council also 



has auxiliary members representing the various units of the 
Montana University System. 

MEAC has been particularly successful in fulfilling its 
intended function, because of the skilled efforts of the 
Lieutenant Governor and the MEAC staff. MEAC has 
worked closely with the federal-state Northern Great Plains 
Resource Program (NGPRP) in providing direction and 
comments in specialized work group reports. The high 
quality of the NGPRP interim report has been attributed 
largely to the comments and assistance provided by MEAC. 
The report presents a generally unbiased account of what is 
known and what needs to be known about coal develop- 
ment in the Northern Great Plains. 

In its advisory capacity, MEAC assisted Governor Thomas L. 
Judge by preparing several drafts of a preliminary state 
position statement on federal coal leasing. The statement 
said that for at least the first five years of any renewed federal 
coal leasing program, the state wants coal to be burned or 
otherwise converted elsewhere, unless the energy is 
needed for Montana's own supplies. The position 
confronted a proposed Department of Interior program to 
automatically grant large-volume Bureau of Reclamation 
water options to successful coal lease bidders. MEAC also 
assisted the governor in preparing Montana's response to 
the federal Department of Interior's environmental impact 
statement on the proposed coal leasing program. Interior 
reportedly is preparing an entirely new draft to objectively 
evaluate the impacts of coal based industrialization in the 
agricultural West. 

The Lieutenant Governor's Office coordinated preparation 
of a major proposal by the Departments of Natural 
Resources and Conservation, Health and Environmental 
Sciences and Fish and Game to investigate the impacts of 
industrial water consumption on irrigation, municipal water 
needs, fish, wildlife and recreation in Montana's portion of 
the Yellowstone Basin. This proposal to the Old West 
Regional Commission was granted, effective June, 1974, 
with a two-year research contract in excess of $500,000. The 



Department of Natural Resources is lead agency in the 
study. Also, the Lieutenant Governor's Office successfully 
sought federal Health, Education and Welfare funds to 
bolster MEAC's ability to coordinate and support 
continuing and proposed human resource research on coal 
and energy development. The federal funds are being used 
for a full-time research package. The HEW grant has enabled 
MEAC to prepare and publish a monthly newsletter on 
research results. 

MEAC also prepares a monthly energy status report. These 
reports, starting in the fall of 1973, have provided 
information on possible shortages in major energy fuels, 
and have suggested ways of coping with the "energy crisis." 
The Montana Fuel Allocation Office has cooperated with 
MEAC in preparing monthly reports. 

MEAC's work largely has been related to coal development 
and its impacts. It can be said that MEAC has contributed 
greatly to the flow of reliable information and encourage- 
ment of public awareness of coal related development 
problems and possible solutions. 



References Cited 

Draft Environmental Impact Statement on proposed approval of strip mining permit 
for coniinuation of the Decker Coal Company mine at Decker, Montana, Montana 
Department of State Lands, Helena, Montana. Nov. 5, 1973, p. 2. 



The act, for example, orders agencies to prepare "a detailed s 

ment's three-page Decker EIS left most information req 
from Decker Coal Company documents not gener; 
Furthermore, the environmental analysis was inaccurate, according to the comments 
of other state agencies, and lacked depth (see comments in text). The department 
probably should be allowed to assess fees to finance proper analyses of mining 
applications, (the Utility Siting Act fee system so far has had good success.) Fees, 
however, will not automatically provide the good faith efforts that appear to be 
missing in the department's approach to strip mining applications and MEPA. 

Memo to C. R. Draper, dated March 20, 1974, from the Department of State Lands. 



The depart- 






Appendix A 

Biographies 

Members of Environmental Quality Council and Executive Director 



Elmer Flynn, chairman of the Environmental Quality Council (EQC), 
was born in Missoula and is now a rancher near that city. He is a 
Democratic state senator. In the 1973 session he was chairman of the 
Public Health, Welfare, and Safely Committee, vice-chairman of the 
Committee on Committees, and served as a member on the Labor 
and Employment, Natural Resources, and Rules Committees. 



Thomas J. Lynaugh is a Billings attorney. He has lived in Montana 
since 1970. Lynaugh was born in Teaneck, New Jersey, where he 
attended public schools. He is a graduate of Manhattan College, 
New York City, and Boston College Law School. Lynaugh is a 
member of the American Bar Association, Montana Bar 
Association, and the District of Columbia Bar Association. 



Thomas O. Hager, vice-chairman of the Environmental Quality 
Council, was born in Minneapolis, Minnesota. He attended Billings 
public schools and Montana State LIniversity. Hager, an egg 
producer in Billings, is a Republican state represenative and served 
in the 1973 session on the Agriculture, Livestock and Irrigation, and 
Fish and Game Committees. He is a member of the Montana Egg 
Council, Northwest Egg Producers, and United Egg Producers. 

A. L. (Bud) Ainsworth was born in Webster City, Iowa, but is a long- 
time Montana resident. He attended Thompson Falls public schools 
and Stanford LIniversity and was graduated from the University of 
Montana. He has been a Republican state representative since 1967. 
In the 1973 session, Ainsworth served on the Constitution, Elections 
and Federal Relations, Natural Resources, and Long Range Building 
Committees. The Missoula resident is a retired retail druggist, a 
member of the Board of Trustees of the Missoula City-County 
Library, and a past member of Interlocal Co-op Commission, 
Missoula County. 

Dorothy Bradley, a Democratic state representative, was born in 
Madison, Wisconsin. She came to Montana in 1950 and attended 
Bozeman public schools and Colorado College in Colorado 
Springs. Bradley, a student of anthropology, lives in Bozeman. In 
the 1973 session she served on the Education and Local Govern- 
ment Committees, and was vice-chairman of Natural Resources 
Committee. 

C. Steven Brown, the governor's designated representative on the 
EQC, was born in Corvallis, Montana. He graduated from the 
University of Montana in political science and from the George 
Washington University School of Law with honors. Brown was 
awarded an Environmental Law Fellowship from the George 
Washington University School of Law in 1972. While attending law 
school at George Washington University, Brown served for two 
years as a legislative assistant to Senator Mike Mansfield. He is now 
legal counsel on the governor's staff and was admitted to practice 
law in Montana in October 1973. 

George Darrow of Billings is a geologist and resource consultant 
with degrees in economics and geology from the University of 
Michigan. Darrow was a Republican state representative in the 1967 
and 1971 legislative sessions, sponsoring the Water Resources Act, 
the Floodway Management Act, and the Montana Environmental 
Policy Act. As a state senator in the 1973 and 1974 sessions, Darrow 
served on the Agriculture, Livestock and Irrigation, Natural 
Resources, and State Administration Committees. During the 1974 
session, he sponsored the Coal Strip Mine Siting Act. Darrow was 
EQC chairman from 1971 to 1973 and was reappointed as a member 
from the Senate in 1973. He is the recipient of the 1971 Hilliard 
Award for outstanding environmental achievement presented by 
the Rocky Mountain Center on the Environment. He isa member of 
the American Institute of Professional Geologists, the Geological 
Society of America, the American Water Resources Association, 
and a Fellow of the American Association for the Advancement of 
Science. 

larry Fasbender was born in Great Falls. He attended the University 
of Montana law school, and graduated from Gonzaga University in 
philosophy. The Fort Shaw resident is a Democratic state 
representative and has served since 1967. In 1973 he was House 
majority leader and as such was an ex-officio member of all 
committees. He is a farmer-businessman. 



Harriet (Mrs. Donald) Marble was born in Petersburg, Virginia and 
now lives in Chester. She came to Montana in 1964, having earned 
degrees at Cottey College and Muskingum College. She also holds 
bachelor's and master's degrees in wildlife management from the 
University of Montana. Marble is a member of the League of 
Women Voters, the Wilderness Society, and the Montana 
Wilderness Association. 



George McCallum was born in Conrad and now lives in Niarada, 
where he is a rancher and Christmas tree operator. He served as a 
Republican state senator in 1971-73. In the 1973 session McCallum 
served on the Agriculture, Livestock and Irrigation, Education, Fish 
and Game, and Natural Resources Committees. 

Cordon McGowan was born in Great Falls and has been a lifetime 
resident of Highwood where he is a rancher. He attended public 
schools in Highwood. He has been a Democratic state senator since 
1955. In the 1973 session he served as vice-chairman of both the 
Business and Industry, and Natural Resources Committees. He was a 
member of the Highways and Transportation, and Taxation 
Committees. 

Calvin S. Robinson was born in Kalispell, where he practices law. He 
attended the University of Montana, University of California, and 
University of Washington and has a law degree from the University 
of Michigan. He is a member of the Northwest Montana Bar 
Association, Montana Bar Association, Illinois Bar Association, 
American Bar Association, and American Judicular Society. 
Robinson served in the U.S. Navy from 1942 to 1945. 

William G. Walter is department chairman and professor of micro- 
biology at Montana State University. He was born in Lake Placid, 
New York and came to Montana in 1942 after earning bachelor's 
and master's degrees from Cornell University. He later received his 
doctorate at Michigan State University. Walter is a member of the 
American Society of Microbiology, which awarded him the Car;ski 
Distinguished Teaching Award in 1973. Walter is also a membr r of 
the American Public Health Association and the National Environ- 
mental Health Association, which awarded him the Mangold award 
in 1972. 



John W. Reuss, EQC executive director, was born in San 
Bernardino, California, and educated in history and political 
science at the University of California (Riverside), where he 
completed PhD exams in 1968. Reuss was an instructor in the 
Science, Technology and Public Policy Program at Purdue Univer- 
sity until 1971, when he accepted an assistant professorship at the 
Montana State University Government Program to teach and 
conduct research in science and public policy, environmental 
politics, and public administration with emphasis on management 
of natural resources. In 1973, he was appointed Principal 
Investigator for the university's National Science Foundation- 
sponsored Gallatin Canyon Study, a project of the Center for Inter- 
disciplinary Studies at MSU. He was co-author of "Environmental 
Impact Assessment: The Gallatin Canyon-Big Sky Study," in the 
Journal of Soil and Water Conservadon in 1973. In mid-1974, Reuss 
was chosen from a field of candidates for the directorship of the 
EQC. He isa member ofthe American Association for the Advance- 
ment of Science and the American Societ for Public 
Administration. 



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Appendix B 

Montana Environmental Policy Act 

PUBLIC HEALTH AND SAFETY 
CHAPTER 65 — MONTANA ENVIRONMENTAL POLICY ACT 



Section 

69-6501. Short title. 

69-6502. Purpose of act. 

69-6503. Declaration of state policy for the environment. 

69-6504. General directions to state agencies. 

69-6506. Review of statutory authority and administative policies 

to determine deficiencies or inconsistencies. 

69-6506. Specific statutory obligations unimpaired. 

69-6507. Policies and goals supplementary. 

69-6508. Environmental quality council. 

69-6509. Term of office. 

69-6510. Meetings. 

69-6511. Appointment and qualifications of an executive director. 

69-6512. Appointment of employees. 

69-6513. Term and removal of the executive director. 

69-6514. Duties of executive director and staff. 

69-6515. Examination of records of government agencies. 

69-6516. Hearings by council — enforcement of subpoenas. 

69-6517. Consultation with other groups — utilization of services. 

69-6501. Short title. Thisact may be cited as the "Montana Environ- 
mental Policy Act." 

History: En. Sec. 1, Ch. 238, L. 

1971. 

Title of Act 

An act to establish a state policy 
for the environment and to 
establish an environmental 
quality council and setting forth 
its powers and duties and 
providing an effective date. 

69-6502. Purpose of act. The purpose of this act is to declare a state 
policy which will encourage productive and enjoyable harmony 
between man and his environment; to promote efforts which will 
prevent or eliminate damage to the environment and biosphere 
and stimulate the health and welfare of man; to enrich the under- 
standing of the ecological systems and natural resources important 
to the state; and to establish an environmental quality council. 

History: En. Sec. 2, Ch. 238, L. 1971. 

69-6503. Declaration of state policy for the environment. The legis- 
lative assembly, recognizing the profound impact of man's activity 
on the interrelations of all components of the natural environ- 
ment, particularly the profound influences of population growth, 
high-density urbanization, industrial expansion, resource 
exploitation, and new and expanding technological advances and 
recognizing further the critical importance of restoring and 
maintaining environmental quality to the overall welfare and 
development of man, declares that it is the continuing policy of the 
state of Montana, in cooperation with the federal government and 
local governments, and other concerned public and private 
organizations, to use all practicable means and measures, including 
financial and technical assistance, in a manner calculated to foster 
and promote the general welfare, to create and maintain conditions 
under which man and nature can coexist in productive harmony, 
and fulfill the social, economic, and other requirements of present 
and future generations of Montanans. 

(a) In order to carry out the policy set forth in this act, it is the 
continuing responsibility of the state of Montana to use all 
practicable means, consistent with other essential 
considerations of state policy, to improve and coordinate 
state plans, functions, programs, and resources to the end 
that the state may — 



(1) fulfill the responsibilities of each generation as trustee 
of the environment for succeeding generations; 

(2) assure for all Montanans safe, healthful, productive, 
and esthetically and culturally pleasing surround- 
ings; 

(3) attain the widest range of beneficial uses of the 
environment without degradation, risk to health or 
safety, or other undesirable and unintended 
consequences; 

(4) preserve important historic, cultural, and natural 
aspects of our unique heritage, and maintain, 
wherever possible, an environment which supports 
diversity and variety of individual choice; 

(5) achieve a balance between population and resource 
use which will permit high standards of living and a 
wide sharing of life's amenities; and 

(6) enhance the quality of renewable resources and 
approach the maximum attainable recycling of 
depletable resources. 

(b) The legislative assembly recognizes that each person shall 
be entitled to a healthful environment and that each 
person has a responsibility to contribute to the 
preservation and enhancement of the environment. 

History: En. Sec. 3, Ch. 238, I. 1971. 

69-6504. General directions to the state agencies. The legislative 
assembly authorizes and directs that, to the fullest extent possible: 

(a) The policies, regulations, and laws of the state shall be 
interpreted and administered in accordance with the 
policies set forth in this act, and 

(b) all agencies of the state shall 

(1) utilize a systematic, interdisciplinary approach which 
will insure the integrated use of the natural and social 
sciences and the environmental design arts in 
planning and in decision making which may have an 
impact on man's environment; 

(2) identify and develop methods and procedures, which 
will insure that presently unquantified environ- 
mental amenities and values may be given appropriate 
consideration in decision making along with 
economic and technical considerations; 



(3) 



include in every recommendation or report on 
proposals for projects, programs, legislation and other 
major actions of state government significantly affect- 
ing the quality of the human environment, a detailed 
statement on — 

(i) the environmental impact of the proposed 
action. 



(ii) any adverse environmental effects which cannot 
be avoided should the proposal be imple- 
mented, 

(iii) alternatives to the proposed action. 



-136— 



(iv) the relationship between local short-term uses of 
man's environment and the maintenance and 
enhancement of long-term productivity, and 

(v) any irreversibleand irretrievable commitments of 
resources which would be involved in the 
proposed action should it be implemented. 



set for in this act are supplementary to those set forth in existing 
authorizations of all boards, commissions, and agencies of the state. 

History: En. Sec. 7, Ch. 238, L. 1971. 

69-6508. Environmental quality council. The environmental quality 
council shall consist of thirteen (13) members to be as follows: 



Prior to making any detailed statement, the responsible state official 
shall consult with and obtain the comments of any state agency 
which has jurisdiction by law or special expertise with respect to any 
environmental impact involved. Copies of such statement and the 
comments and views of the appropriate state, federal, and local 
agencies, which are authorized to develop and enforce envirn- 
mental standards, shall be made available to the governor, the 
environmental quality council and to the public, and shall 
accompany the proposal through the existing agency review 
processes. 

(4) study, develop, and describe approximate alterna- 
tives to recommend courses of action in any proposal 
which involves unresolved conflicts concerning 
alternative uses of available resources; 

(5) recognize the national and long-range character of 
environmental problems and, where consistent with 
the policies of the state, lend appropriate support to 
initiatives, rerolutions, and programs designed to 
maximize national co-operation in anticipating and 
preventing a decline in the quality of mankind's world 
environment. 

(6) make available to counties, municipalities, insti- 
tutions, and individuals, advice and information use- 
ful in restoring, maintaining, and enhancing the 
quality of the environment; 

(7) initiate and utilize ecological information in the 
planning and development of resource-oriented pro- 
jects; and 

(8) assist the environ mental quality council established by 
section 8 (69-6508) of this act. 

History: En. Sec. 4, Ch. 238, L. 1971. 

69-6505. Review of statutory authority and administrative policies 
to determine deficiencies or inconsistencies. All agencies of the 
state shall review their present statutory authority, administrative 
regulations, and current policies and procedures for the purpose of 
determining whether there are any deficiencies or inconsistencies 
therein which prohibit full compliance with the purposes and 
provisions of this act and shall propose to the governor and the 
environmental qualty council not later than July 1, 1972, such 
measures as may be necessary to bring their authority and policies 
into conformity with the intent, purposes, and procedures set for in 
this act. 

History: En. Sec. 5, Ch. 238, L. 1971. 

69-6506. Specific statutory obligations unimpaired. Nothing in 
section 3 (69-6503) or 4 (69-6504) shall in any way affect the specific 
statutory obligations of any agency of the state 

(a) to comply with criteria or standards of environmental 
quality, 

(b) to co-ordinate or consult with any other state or federal 
agency, or 

(c) to act, or refrain from acting contingent upon the recom- 
mendations or certification of any other state or federal 

agency. 

History: En. Sec. 6, Ch. 238, I. 1971. 

69-6507. Policies and goals supplementary. The policies and goals 



(a) The governor or his designated representative shall be an 
ex officio member of the council and shall participate in 
council meetings as a regular member. 

(b) Four (4) members of the senate and four (4) members of 
the house of representatives appointed before the six- 
tieth legislative day in the same manner as standing com- 
mittees of the respective houses are appointed. A vacancy 
on the council occurring when the legislative assembly is 
not in session shall be filled by the selection of a member 
of the legislative assembly by the remaining members of 
the council. No more than two (2) of the appointees of 
each house shall be members of the same political party. 

(c) Four (4) members of the general public to be appointed by 
the governor with the consent of the senate. 

In considering the appointments of (b) and (c) above, considera- 
tion shall be given to their qualifications to analyze and interpret 
environmental trends and information of all kinds; to appraise 
programs and activities of the state government in the light of the 
policy set forth in section 3 (69-6503) of this act; to be conscious and 
responsive to the scientific, economic, social, esthetic, and cultural 
needs and interests of the state; and to formulate and recommend 
state policies to promote the improvement of the quality of the 
environment. 

History: En. Sec. 8, Ch. 238, L. 1971. 

69-6509. Term of office. The four (4) council members from the 
house of representatives shall serve for two (2) years and may be 
reappointed. Two (2) council members from the senate, one from 
each political party, and two (2) council members from the general 
public shall serve for four (4) years, and these members may be 
reappointed for a two (2) year term. Two (2) council members from 
the senate, one from each political party, and two (2) council 
members from the general public shall serve for two (2) years and 
these members may be reappointed for a four (4) years term. In no 
case shall a member of the council serve more than six (6) years. 

The council shall elect one of its members as chairman and such 
other officers as it deems necessary. Such officer shall be elected for 
a term of two (2) years. 

History: En. Sec. 9, Ch. 238, I. 1971. 

69-6510. Meetings. The council may determine the time and place 
of its meetings but shall meet at least once each quarter. Each 
member of the council shall, unless he is a full-time salaried officer 
or employee of this state, be paid twenty-five dollars ($25) for each 
day in which he is actually and necessarily engaged in the 
performance of council duties, and shall also be reimbursed for 
actual and necessary expenses incurred while in the performance of 
council duties. Members who are full-time salaried officers or 
employees of this state may not be compensated for their service as 
members, but shall be reimbursed for their expenses. 

History: En. Sec. 10, Ch. 238, L. 1971. 

69-6511. Appointment and qualifications of an executive director. 

The council shall appoint the executive director and set his salary. 
The executive director shall hold a degree from an accredited 
college or university with a major in one of the several 
environmental sciences and shall have at least three (3) years of 
responsible experience in the field of environmental manage- 
ment. 

FHe shall be a person who, as a result of his training, experience, and 



attainments, is exceptionally well qualified to analyze and interpret 
environmental trends and information of all kinds; to appraise 
programs and activities of the state government in the light of the 
policy set forth in section 3 (69-6503) of this act; to be conscious of 
and responsive to the scientific, economic, social, esthetic, and 
cultural needs and interests of the state; and to formulate and 
recommend state policies to promote the Improvement of the 
quality of the environment. 

i>. Sec. 11, Ch. 238, L. 1971. 



69-6512. Appointment of employees. The executive director, sub- 
ject to the approval of the council, may appoint whatever 
employees are necessary to carry out the provisions of this act, 
within the limitations of legislative appropriations. 



History: En. Sec. 12, Cii. 238, L. 1971. 

69-6513. Term and removal of the executive director. The execu- 
tive director is solely responsible to the environmental quality 
council. He shall hold office for a term of two (2) years beginning 
with July lof each odd-numbered year. The council may remove 
him for misfeasance, malfeasance or nonfeasance in office at any 
time after notice and hearing. 

History: En. Sec. 13, Ch. 238, L. 1971. 

69-6514. Duties of executive director and staff. It shall be the duty 
and function of the executive director and his staff 

(a) to gather timely and authoritative information concern- 
ing the conditions and trends in the quality of the environ- 
ment both current and prospective, to analyze and 
interpret such information for the purpose of deter- 
mining whether such conditions and trends are 
interfering, or are likely to interfere, with the achieve- 
ment of the policy set forth in section 3 (69-6503) of this act, 
and to compile and submit to the governor and the legis- 
lative assembly studies relating to such conditions and 
trends; 

(b) to review and appraise the various programs and activities 
of the state agencies in the light of the policy set forth in 
section 3 (69-6503) of this act for the purpose of deter- 
mining the extent to which such programs and activities 
are contributing to the achievement of such policy, and to 
make recommendations to the governor and the 
legislative assembly with respect thereto; 

(c) to develop and recommend to the governor and the legis- 
lative assembly, state policies to foster and promote the 
improvement of environmental quality to meet the 
conservation, social, economic, health, and other require- 
ments and goals of the state; 

(d) to conduct investigations, studies, surveys, research, and 
analyses relating to ecological systems and environmental 
quality; 

(e) to document and define changes in the natural environ- 
ment, including the plant and animal systems, and to 
accumulate necessary data and other information for a 
continuing analysis of these changes or trends and an 
interpretation of their underlying causes. 

(f) to make and furnish such studies, reports thereon, and 
recommendations with respect to matters of policy and 
legislation as the legislative assembly requests. 

(g) to analyze legislative proposals in clearly environmental 
areas and in other fields where legislation might have 
environmental consequences, and assist in preparation of 
reports for use by legislative committees, administrative 
agencies, and the public. 



(h) to 



jlt with, and assist legislators who are preparing 



environmental legislation, to clarify any deficiencies or 
potential conflicts with an overall ecologic plan. 

(i) to review and evaluate operating programs in the environ- 
mental field in the several agencies to identify actual or 
potential conflicts, both among such activities, and with a 
general ecologic perspective, and to suggest legislation to 
remedy such situations. 

(j) to transmit to the governor and the legislative assembly 
annually, and make available to the general public 
annually, beginning July 1, 1972, an environmental quality 
report concerning the state of the environment which 
shall contain 

(1) the status and condition of the major natural, man- 
made, or altered environmental classes of the state, 
including, but not limited to, the air, the aquatic, 
including surface and ground water, and the 
terrestrial environment, including, but not limited to, 
the forest, dryland, wetland, range, urban, suburban, 
and rural environment; 

(2) the adequacy of available natural resources for ful- 
filling human and economic requirements of the state 
in the light of expected population pressures; 

(3) current and foreseeable trends in the quality, 
management and utilization of such environments 
and the effects of those trends on the social, 
economic, and other requirements of the state in the 
light of expected population pressures; 

(4) a review of the programs and activities (including 
regulatory activities) of the state and local govern- 
ments, and nongovernmental entities or individuals, 
with particular reference to their effect on the 
environment and on the conservation, development 
and utilization of natural resources; and 

(5) a program for remedying the deficiencies of existing 
programs and activities, together with recommenda- 
tions for legislation. 

History: En. Sec. 14, Ch. 238, L. 1971. 

69-6515. Examination of records of government agencies. The 

environmental quality council shall have the authority to investi- 
gate, examine and inspect all records, books and filesof any depart- 
ment, agency, commission, board or institution of the state of 
Montana. 

History: En. Sec. 15, Ch. 238, L. 1971. 

69-6516. Hearings by council — enforcement of subpoenas. In the 

discharge of its duties the environmental quality council shall have 
authority to hold hearings, administer oaths, issue subpoenas, 
compel the attendance of witnesses, and the production of any 
papers, books, accounts, documents and testimony, and to cause 
depositions of witnesses to be taken in the manner prescribed by 
law for taking depositions in civil actions in thedistrict court. In case 
of disobedience on the part of any person to comply with any 
subpoena issued on behalf of the council, or any committee 
thereof, or of the refusal of any witness to testify on any matters 
regarding which he may be lawfully interrogated, it shall be the duty 
of the district court of any county or the judge thereof, on 
application of the environmental quality council to compel 
obedience by proceedings for contempt as the case of dis- 
obedience of the requirements of a subpoena issued from such 
court on a refusal to testify therein. 



History: En. Sec. 16, Ch. 238. l. 1971. 

69-6517. Consultation with other groups — utilization of services. In 

exercising its powers, functions, and duties under this act, the 
council shall 



-138— 



(a) consult with such representatives of science, industry, similar activities authorized by law and performed by 
agriculture, labor, conservation organizations, educa- established agencies. 

tional institutions, local governments and other groups, as 

it deems advisable: and History: En. Sec. 17, Ch. 238, I. 1971. 

(b) utilize, to the fullest extent possible, the services, facilities. Effective Date 

and information (including statistical information) of Section 18 of Ch. 238, Laws 1971 

public and private agencies and organizations, and provided the act should be in 

individuals, in order that duplication of effort and expense effect from and after its passage 

may be avoided, thus assuring that the commission's and approval. Approved March 9, 

activities will not unnecessarily overlap or conflict with 1971. 



Appendix C 

Revised Guidelines 

For Environmental Impact Statements (EIS) Required by the 
Montana Environmental Policy Act of 1971 

Adopted by Environmental Quality Council, September 14, 1973 



Table of Contents: 



1. PURPOSE 

2. POLICY 

3. AGENCY PROCEDURES 

4. STATE AGENCIES INCLUDED 

5. ACTIONS INCLUDED 

6. CONTENT OF ENVIRONMENTAL STATEMENT 

7. STATE AGENCIES TO BE CONSULTED 

8. USE OF STATEMENTS . . . AVAILABILITY TO PUBLIC 

9. APPLICATION ... TO EXISTING PROJECTS AND PROGRAMS 
10. SUPPLEMENTARY GUIDELINES, EVALUATION 



PURPOSE 



The purpose of Section 69-6504 (b) (3) of the Montana Environ- 
mental Policy Act (MEPA) and of these guidelines is to 
incorporate into the agency decision-making process careful 
and thorough consideration of the environmental effects of 
proposed actions, and to assist agencies in implementing MEPA 
In a uniform, deliberate, and systematic manner. 



2 POLICY 

a. As early as possible and in all cases prior to any agency 
decision concerning major action or recommendation or a 
proposal for legislation that significantly affects the 
environment, state agencies shall, in consultation with 
other appropriate agencies and individuals, in both the 
public and private sectors, assess in detail the potential 
environmental impact in order that adverse effects are 
avoided and environmental quality is maintained, 
enhanced, or restored to the fullest extent practicable. In 
particular, it is especially important that alternative actions 
that will minimize adverse impacts shall be explored, and 
both the long- and short-range implications on the human 
environment and on nature shall be evaluated in order to 
avoid, to the fullest extent practicable, undesirable con- 
sequences for the environment as a whole. 

The language in Section 69-6504 in intended to assure that 
all agencies of the state shall comply with the directives set 
out in said Section "to the fullest extent possible" under 
their statutory authorization and that no agency shall 
utilize an excessively narrow construction of its existing 
statutory authorizations to avoid compliance. 

b. The term "human environment" shall be broadly 
construed to Include not only social, economic, cultural, 
and aesthetic factors, but also, and particulary, the bio- 
physical properties of natural ecosystems, including 
plants, humans, and other animals, their relationship to 
each other, and with all environmental components of air, 
water, and land. 



3 AGENCY PROCEDURES 

a. Each agency shall establish its own formal procedures for: 

(1) Identifying those agency actions and decisions requir- 
ing environmental statements, the appropriate time 
prior to decision for the consultation required by 
Section 69-6504 (b) (3) and the agency review process 
for which environmental statements are to be 
available; 

(2) Obtaining information required in the preparation of 
environmental statements; 

(3) Designating the officials who are to be responsible for 
the environmental statements; 



(4) Consulting with and taking account of the comments 
of appropriate agencies, private groups, and the 
public, whether or not an environmental statement is 
prepared; 

(5) Preparing draft environmental statements. 

(a) In accordance with the policy of MEPA, agencies 
have a responsibility to develop procedures to 
provide to the public timely information and 
explanation of plans and programs with environ- 
mental impact in order to obtain the views of any 
interested parties. Initial assessments of the 
environmental impacts of proposed action shall 
be undertaken concurrently with initial techni- 
cal, energy use. and economic studies, and when 
required, a draft environmental impact state- 
ment shall be prepared and circulated for 
comments in time to accompany a proposal 
through the agency review process. During the 
process, agencies shall: 

(1) Make provision for the circulation of draft 
statements to other appropriate agencies, 
selected private groups and individuals, and 



-140— 



for their availability to the public. (Where an 
agency has an established practice of 
declining to favor an alternative until public 
commenis on a proposed action have been 
received, the draft environmental statement 
may indicate that two or more alternatives 
are under consideration.); 

(2) Give careful consideration to the comments 
elicited from the aforementioned sectors; 
and 

(3) Issue final environmental impact statements 
which clearly evidence a responsiveness to 
such comments. The purpose of this assess- 
ment and consultation procedure is to pro- 
vide agencies, other decision-makers, and 
the public with an understanding of the 
potential environmental effects of proposed 
actions. 

Agencies should attempt to balance the 
results of their environmental assessments 
with their assessments of the net economic, 
technical, and other benefits of proposed 
actions, and use all practicable means to 
avoid or minimize undesirable conse- 
quences for the environment. 

(b) If an agency relies on an applicant for the sub- 
mission of initial environmental information, the 
agency shall assist the applicant by outlining the 
type and quality of information required. In all 
such cases, the agency must make its own deter- 
minations on the applicant's evaluation of the 
environmental issues and the agency must 
assume responsibility for the scope and content 
of draft and final environmental statements. 

Meeting the requirements of Section 69-6504 (b) (3) 
for providing timely public information on plans and 
programs with environmental impact, including 
procedures responsive to Section 8 of these guide- 
lines. These procedures should be consistent with the 
guidelines contained herein. Each agency should file a 
copy of all such procedures with the Environmental 
Quality Council (EQC) which will provide advice to 
agencies in the preparation of their procedures and 
guidance on the application and interpretation of the 
council's guidelines. 



4 STATE AGENCIES INCLUDED 

Section 69-6504 (b) (3) applies to all agencies of the State 
government. Each agency shall comply with the requirements 
unless the agency demonstrates that existing law applicable to 
its operations expressly prohibits or makes compliance 
impossible. 



5 ACTIONS INCLUDED 

The following criteria shall be employed by agencies in 
deciding whether a proposed action requires the preparation 
of an environmental statement. 



Actions include, but are not limited to: 

(1) Recommendations or favorable reports relating to 
legislation, including that for appropriations. The 
requirement for following Section 69-6504 (b) (3) 
procedure as discussed in these guidelines applies to 
both: 

(a) agency recommendations on their own pro- 
posals for legislation; and 



(b) agency reports on legislation initiated else- 
where. (In the latter case only the agency which 
has primary responsibility for the subject matter 
involved will prepare an environmental impact 
statement.) 

(2) Projects, programs, and continuing activities: directly 
undertaken by state agencies; supported in whole or 
in part through state funds or involving a state lease, 
permit, license, certificate or other entitlement for 
use; 

(3) Policy, regulations, and procedure making. 



The statutory clause "major actions of state government 
significantly affecting the quality of the human environ- 
ment" shall be construed by agencies from the perspective 
of the overall, cumulative impact of the action proposed 
(and of further actions contemplated). Such actions may 
be localized and seemingly insignificant in their impact, 
but if there is a potential that the environment may be 
significantly affected, the statement shall be prepared. 

In deciding what constitutes "major action significantly 
affecting the environment," agencies should consider that 
the effect of many state decisions about a project or a 
complex of projects can be individually limited but 
cumulatively considerable. By way of example, two suit- 
able illustrations can be drawn: (1) one or more agencies, 
over a period of years, commits minor amounts of 
resources at any single instance, but the cumulative effect 
of those individually minor commitments amounts to a 
major commitment of resources, or (2) several govern- 
ment agencies individually make decisions regarding 
partial aspects of a major action. The guiding principle is 
that the whole can be greater than the sum of the parts. 
The lead agency shall prepare an environmental impact 
statement if it is foreseeable that a cumulatively significant 
impact on the environment will arise from state action. 
"Lead agency" refers to the state agency which has primary 
authority for committing the state government to a course 
of action with significant environmental impact. As 
necessary, the Environmental Quality Council will assist in 
resolving questions of lead agency determination. 

Finally, the determination of what constitutes "major 
action significantly affecting the human environment" will 
unavoidably involve considerable judgment on the part of 
the responsible agency. To assist in that judgment, the 
following points should be general considerations (but not 
viewed as final determinants): 

(1 ) Is the action under consideration the first or the only 
governmental decision to be taken on the proposal? 

(2) Is the action decisive; could it substantially change the 
nature of the proposal , stop the proposal, or allow it to 
proceed to full implementation? 



(3) Is the action expected to have direct statewide or 
regional implications? 

(4) Is the action fixed for a certain period of time not to be 
modified except under new conditions not previously 
known, or conditions of an emergency nature? 

(5) Does the action deal with environmental conditions 
(physical, social, biological) which have been clearly 
recognized as being endangered, fragile, or in 
severely short supply; or clearly approaching a 
precarious level of quality, hardship, or public safety? 

(6) Is the action intended as environmentally regulatory 
or protective? 

(7) Does the action involve considerable expenditure? 



(8) Would environmental conditions be "substantially 
altered in terms of size, quality, well-being, avail- 
ability, or type or use? 

(9) Would environmental conditions be affected over a 
large geographical area? 

(10) Would environmental effects be beneficial, adverse 
or both? 

(11) Would environmental effects be short-term, long- 
term, or permanent? 

(12) Would environmental effects be reversible? 

(13) Will the action involve a reasonably important 
"segment" of opinion in a controversy? 

c. When an agency responsible for the issuance of a state 
lease, permit, license, certificate, or other entitlement for 
use. should be able to foresee that the issuance of a large 
number of such entitlements will cumulatively, have a 
significant impact upon the environment, an environ- 
mental impact statement shall be prepared. Normal 
agency procedures, as delineated in Section 3 above, shall 
be used in the preparation of such an impact statement. 
Information supplied by applicants for these entitlements 
may be used or considered in the preparation of an impact 
statement, but such information may not be submitted by 
itself in place of an impact statement. 

c. Section 69-6504 of the MEPA indicates the broad range of 
aspects of the environment to be surveyed in any assess- 
ment of significant effect. The MEPA also indicates that 
adverse significant effects include those that degrade the 
quality of the environment, and curtail the range of 
beneficial uses of the environment, and serve short-term, 
to the disadvantage of long-term, environmental goals. 
Significant effects can also include actions which may have 
both beneficial and detrimental effects, even if. on 
balance, the agency believes that the effect will be 
beneficial. Significant adverse effects on the quality of the 
human environment include both those that directly affect 
human beings and those that indirectly affect human 
beings through adverse effects on the environment. 



6 CONTENT OF ENVIRONMENTAL 
STATEMENT 



The following poir 



are to be ( 



red: 



(1) A description of the proposed action including 
information and technical data adequate to permit a 
careful assessment of environmental impact by com- 
menting agencies and the public. The amount of 
detail provided in such descriptions should be 
commensurate with the extent and expected impact 
of the action, and with the amount of information 
required at the particular level of decision making 
(planning, feasibility, design, etc.). 

(2) The probable impact of the proposed action on the 
environment, including impact on ecological systems. 
Both primary andsecondary significant consequences 
for the environrnent shall be included. A primary 
impact is one which generally results from the project 
input; a secondary impact is one which generally 
results from a project output. Primary impacts are 
usually more susceptible to measurement and analysis 
by an agency proposing an action because the primary 
impacts are more immediately related to an agency's 
area of responsibility and expertise. Secondary 
impacts, on the other hand, usually require analyses 
by a number of agencies because they are not within 
any single agency's area of responsibility or expertise. 



(3) Any probable adverse environmental effects which 
cannot be avoided, should the proposal be 
implemented. If there are adverse environmental 
effects which are unavoidable, mitigative measures 
shall be proposed to minimize such adverse environ- 
mental impact. 

(4) Alternatives to the proposed action: 

Section 69-6504 (b) (4) requires the responsible agency 
to "study, develop, and describe appropriate 
alternatives to recommend courses of action in any 
proposal which involves unresolved conflicts 
concerning alternative uses of available resources." A 
rigorous exploration and objective evaluation of 
alternative action (including no action at all) that 
might avoid some or all of the adverse environmental 
effects is essential. In addition, there should be an 
equally rigorous consideration of alternatives open to 
other authorities. Sufficient analysis of such 
alternatives and their costs and impact on the environ- 
ment should accompany the proposed action through 
the agency review process in order not to foreclose 
prematurely options which might have less detri- 
mental effects. 

(5) The relationship between local short-term uses of 
man's environment and the maintenance and 
enhancement of long-term effects from the 
perspective that each generation is trustee of the 
environment for succeeding generations. 

(6) Any irreversible and irretrievable commitments of 
natural and economic resources (including energy 
resources) which would be involved in the proposed 
action should it be implemented. This requires the 
agency to identify the extent to which the action 
curtails the range of alternative and beneficial uses of 
the environment. 

(7) A discussion of problems and objections raised by 
other agencies and by private organizations and 
individuals in the review process where appropriate 
and the disposition of the issues involved. 



Insofar as it is practicable. a balancing of thee 
benefits to be derived from a proposal with economic 
costs and environmental costs. 



(9) Discussion of potential growth-inducing aspects of 
the proposed action. 

(10) A listing of all agency personnel having chief 
responsibility for the preparation of the statement: a 
brief account of the formal education, training, and 
professional experience of such personnel; and a 
description of the sources of data, research or field 
investigation on which the statement and its 
conclusions are based. 

b. Each environmental statement shall be prepared in 
accordance with the precept in Section 69-6504 (b) (11 that 
all agencies "utilize a systematic, interdisciplinary 
approach which will insure the integrated use of the 
natural and social sciences and the environmental design 
arts in planning and decision making which mav have an 
impact on man's environment." 

c. Agencies which are required to submit statements under 
Section 102 (2) (c) of the National Environmental Policy Act 
may, with EQC approval, substitute copies of that state- 
ment in lieu of the Section 69-6504 (b) (3) requirement of 
the MEPA. 

d. Appendix I prescribes ihe form of the draft environ- 



-142— 



Appendix II su^;gests environmenlal values to be 
considered in connection with the preparation of impact 
statements. 



STATE AGENCIES TO BE 
CONSULTED IN CONNECTION 
WITH PREPARATION OF 
ENVIRONMENTAL IMPACT 
STATEMENTS 

A state agency considering an action requiring an environ- 
mental statement for which it takes primary responsibility shall 
consult with and obtain the comment on the environmental 
impact of the action of state agencies or institutions with juris- 
diction by law or special expertise with respect to any environ- 
mental impact involved. 

In addition, any state agency responsible for a draft environ- 
mental statement may seek comment from appropriate federal 
and local agencies, from private individuals, organizations and 
institutions, and in particular from private parties whose 
interests are likely to be significantly affected by the proposed 
action. 

Agenciesseeking comment shall determine which one or more 
of the agencies or institutions are appropriate to consult on the 
basis of the areas of expertise. It is recommended that these 
agencies and institutions establish contact points for providing 
comments on the environmental statements and that depart- 
ments from which comment is solicited coordinate and 
consolidate the comments of their component entities. It is 
further recommended that each agency establish a "fund file" 
of expertise available from the public and private sectors. The 
requirement in Section 69-6504 (b) (3) to obtain comment from 
state agencies having jurisdiction or special expertise is in 
addition to any specific statutory obligation of any state agency 
to coordinate or consult with any other agency. Agencies 
seeking comment shall establish time limits of not less than 
thirty (30) days for reply, after which it may be presumed, unless 
the agency consulted requires a specified extension of time, 
that the agency consulted has no comment to make. Agencies 
seeking comment should endeavor to comply with requests for 
extensions of time up to fifteen (15) days. Failure of EQC to 
publicly comment on any agency's environmental statement 
does not imply tacit approval of that agency action. 



USE OF STATEMENTS IN AGENCY 
REVIEW PROCESSES: 
DISTRIBUTION TO 
ENVIRONMENTAL 
QUALITY COUNCIL: 
AVAILABILITY TO PUBLIC 

a. Agencies will need to identify at what state or stages of a 
series of actions relating to a particular matter the environ- 
mental statement procedures of these guidelines will be 
applied. It will often be necessary to use the procedures 
both in the development of a state program and in the 
review of proposed projects within the program. The 
principle to be applied is to obtain views of other agencies 
and the public at the earliest feasible time in the discussion 
and development of program and project proposals. Care 
should be taken to avoid duplication but when action is 
considered which differs significantly from other actions 
already reviewed pursuant to Section 69-6504 (b) (3) of the 
MEPA, an environmental statement shall be provided. 



b. Two (2) copies of draft environmental statements, and two 
(2) copies of the final text of environmenlal statements (if 
prepared) together with all comments received thereon by 
the responsible agency from all other agencies and from 
private organizations and individuals, shall be supplied to 
the office of the executive director of the Environmental 
Quality Council. It is important that draft environmental 
statements be prepared and circulated for comment and 
furnished to the Environmental Quality Council, the 
governor, and the public at the earliest possible point in 
the agency review process in order to permit meaningful 
consideration of the environmental issues before an action 
is taken. It is not the intent of the MEPA that the environ- 
mental statement be written to justify decisions already 
made. No administrative action subject to Section 69-6504 
(b) (3) shall be taken sooner than sixty (60) days after a draft 
environmental statement has been circulated for 
comment, furnished to the council and except where 
advance public disclosure will result in significantly 
Increased costs of procurement to the government, made 
available to the public pursuant to these guidelines. If the 
originating agency has a full and good faith consideration 
of the environment in its plans, and if this is reflected In 
favorable comments from review agencies and the public, 
the draft statement may be considered as satisfying the 
requirement of MEPA for a detailed statement. Agencies 
satisfying the requirement of MEPA with the draft 
statement must submit two (2) copies of all comments 
received thereon together with formal notification of the 
final decision on the proposed action. Agencies must 
furnish the same information (final decision and all 
comments on draft) to all commenting entities, whether 
public or private, as a logical termination to the process. In 
cases where the final environmental statement is required 
administrative action shall not be taken sooner than thirty 
(30) days after the final text has been made available to the 
council and the public. If the final text of an environ- 
mental statement is filed within sixty (60) days after a draft 
statement has been circulated for comment, furnished to 
the council and made public pursuant to this section of 
these guidelines, the thirty (30) day period and sixty (60) 
day period may run concurrently to the extent that they 
overlap. 

In those instances where an agency has, after careful 
consideration, concluded that a proposed action or 
project does not require the preparation of a final environ- 
mental impact statement, the EQC, through the office of 
the executive director, may, upon request from the 
agency, remove any further time restrictions for the 
implementation of such agency actions or projects. 

c. With respect to recommendations or reports on proposals 
for legislation to which Section 69-6504 (b) (3) applies, a 
draft environmental statement may be furnished to the 
appropriate legislative committee and made available to 
the public pending transmittal of the comments as 
received and the final text, if required. 

d. All agencies shall make available to the public all the 
reports, studies, and other documents that may and should 
underlie the draft and final Impact statements and 
comments. 

e. Where emergency circumstances make it necessary to take 
an action with significant environmental impact without 
observing the provisions of these guidelines concerning 
minimum periods for agency review and advance avail- 
ability of environmental statements, the agency proposing 
to take the action shall consult with the EQC about 
alternative arrangements. It Is important that the agency 
provide the EQC with a precise, factual statement detail- 
ing the nature of the emergency, and the reasons the 
agency feels it must depart from normal procedural 
requirements. Similarly, where there are overriding 
considerations of expense to the state or impaired 
program effectiveness, the responsible agency shall 



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consult with the EQC concerning appropriate 
modifications of the minimum period. 



f. In accord with the MEPA, agencies have an affirmative 
responsibility to develop procedures to insure the fullest 
practicable provision of timely public information and 
understanding of agency plans and programs with 
environmental Impact in order to obtain the view of 
interested and significantly affected parties. 



These procedures shall include, whenever appropriate, 
provisions for public hearings, and shall provide the public 
with relevant information including information on alter- 
native courses of action. In deciding whether a public 
hearing is appropriate, an agency should consider: (i) the 
magnitude of the proposal in terms of economic costs, the 
geographic area involved, the uniqueness or size of 
commitment of resources involved, and the amount and 
types of energy required: (ii) the degree of interest in the 
proposal, as evidence by requests from public and from 
state and local authorities that a hearing be held: (iii) the 
complexity of the issue and the likelihood that information 
will be presented at the hearing which will be of assistance 
to the agency in fulfilling its responsibilities under the act: 
and (iv) the extent to which public involvement already has 
been achieved through other means, such as earlier public 
hearings, meetings with citizen representatives, and/or 
written comments on the proposed action. Agencies 
which hold hearingson proposed administrative actionsor 
legislation shall make the environmental statement avail- 
able to the public at least thirty (30) days prior to the time of 
the relevant hearings. Hearings shall be preceded by 
adequate public notice and information to identify the 
issues and to obtain the comments provided for in the 
guidelines and should in all ways conform to those 
procedures outlined in the Montana Administrative 
Procedure Act, where applicable, R.C.M. 1947, Section 82- 
4201. e(. seq. 



g. The agency which prepared the environmental statement 
is responsible for making the statement and the comments 
received available to the public, including inter-agency 
memoranda when such memoranda transmit comments 
of agencies upon the environmental impact of proposed 
actions subject to Section 69-6504 (b) (3). 



Agency procedures prepared pursuant to Section 3 of 
these guidelines shall implement these public information 
requirements and shall include arrangements for avail- 
ability of environmental statements and comments at the 
head and other appropriate offices of the responsible 
agency. 



9 APPLYING SECTION 69-6504 
(b) (3) PROCEDURE TO 
EXISTING PROJECTS AND 
PROGRAMS 

The Section 69-6504 (b) (3) procedure shall be applied to major 
state actions having a significant effect on the environment 
even though they arise from projects or programs initiated 
prior to enactment of the MEPA on March 9, 1971. Where an 
agency demonstrates that it is not practicable to reassess the 
basic course of action, it is still important that further incre- 
mental major actions be shaped so as to minimize adverse 
environmental consequences. It is also important in further 
action that account be taken of environmental consequences 
not fully evaluated at the outset of the project or program. 



10 SUPPLEMENTARY GUIDELINES, 
EVALUATION OF PROCEDURES 

These revised guidelines reflect the experience of pertinent 
state agencies and the EQC subsequent to the time the interim 
guidelines were issued. It is believed that this experience has 
made the guidelines more helpful and comprehensive. As 
more experience is gained, and as more comments are 
received, these guidelines will, from time to time, be further 
revised. 

Agencies are encouraged to conduct an ongoing assessment of 
their experience in the implementation of the Section 69-6504 
(b) (3) provisions of the MEPA and in conforming to these 
guidelines. The EQC will welcome comments on these areas at 
any time. Such comments should include an identification of 
the problem areas and suggestions for revision or clarification 
of these guidelines to achieve effective coordination of views 
on the environmental factors (and alternatives, wherever 
appropriate) of proposed actions without imposing 
unproductive administrative procedures. 

Appendix I of Guidelines 

The environment statement submitted to the Environmental 
Quality Council should cover the following items: 

Status: ( ) Draft 

( ) Final Environmental Statement 

Name the responsible state agency (with name of operating 
division where appropriate). 

Kind of action: 
( ) Administrative 
( ) Legislative 

1. Description of action indicating what geographic area of 
political subdivision is particularly affected. 

2. Environmental impact. 

3. Adverse environmental effects. 

4. Alternatives considered. 

5. The relationship between local short-term uses of man's 
environment and the maintenance and enhancement of 
long-term productivity. 

6. Any irreversible and irretrievable commitments of 
resources. 

7. (a) (For draft statements) List all agencies from which 
comments have been requested. 



(b) (For final statements) List all agencies and « 

which written comments have been received. Discussion 

of comments and disposition of issues involved. 

8. Balance of economic benefits with economic costs and 
environmental costs. 

9. Potential growth-inducing effects. 

10. All agency personnel having chief responsibility for the 
preparation of the statement; a brief account of the formal 
education, training, and professional experience of such 
personnel: and a description of the sources of data, 
research or field investigation on which the statement and 
its conclusions are based. 

11. Date draft statement and final statement was made avail- 
able to the governor, the Environmental Quality Council, 
and public. 



Draft environmental statements should be concise, but in sufficient 
detail to allow a reviewer with appropriate expertise to grasp the 
essence of the action and comment inlelligently. 

In cases where final environmental statements are prepared, this 
format should be followed considering in detail the points covered 
in Section 6 of these guidelines. 



Appendix II of Guidelines 

The following are iome environmental variables, that could be 
affected by agency actions and programs. The number of variables 
to be analyzed in a draft EIS is subject to the lead agency's discretion 
and primarily depends on the type and magnitude of the proposed 



Terrestrial and aquatic life and habits 

Water quantity, quality, and distribution 

Soil quality, stability, and moisture 

Vegetation cover, quantity and quality 

Natural beauty and aesthetics 

Access to and quality of recreational and wilderness 

experiences 



Historic and archeological sites 

Unique, endangered, fragile or limited environmental 

resources 

Air quality 

Social structures and mores 

Environmental diversity represented by roadless and natural 

areas 

Cultural uniqueness and diversity 

Local and state tax base and tax revenues 

Agricultural production 

Demands on environmental resources of air, water, land, 

energy 

Quantity and distribution of community and personal income 

Human health 

Transportation networks, traffic flows 

Quantity and distribution of employment 

Distribution and density of population and housing 

Demands for government services, i.e., water, waste disposal, 

schools, police, fire, health, streets 

Industrial and commercial activity 



Appendix D 

Documents Submitted in Compliance with MEPA 



July 1, 1973 to June 30, 1974 



Lead 
Agency 


Environmental 
Impact Statements 


Agency 
Impact Determinations* 


Department of 
Fish and Game 





7 


Departnieni of 

Health and Environmental 

Sciences 


33 


55 


Department of 
Highways 


5 


39 


Department of 
Livestock 


1 


1 


Department of 
Natural Resources 
and Conservation 


7 





Department of 
State Lands 


5 


4 


Department of 

Intergovernmental 

Relations 


1 






V terminology referring to i written documeni in suppor 
anticipated effects on the human environment would r 



General Fund: 



Appendix E 
Environmental Quality Council 

Program Cost Summary 

July 1, 1973 - June 30, 1974 



Salaries 


69,070.17 






Other Compensation 


2,225.00 






Employee Benefits 


7/62.46 


79,057.63 




Contracted Services 


7,713.15 






Supplies 


1,402.10 






Postage & Telephone 
Travel 


2,848.60 
9,293.26 






Repair & Maintenance 


343.60 






Other Expense 


1,319.95 


22,920.66 




Equipment 




3,467.26 




Total General Fund Expense 






$ 105,445.55 



Ford Foundation Grant: 



Salaries 

Other Compensation 

Employee Benefits 



70,283.18 

157.65 

6,415.92 



Contracted Services 

Supplies 

Postage & Telephone 

Travel 

Repair & Maintenance 

Other Expense 

Equipment 
Total Grant Expense 

Grand Total 



10,383.51 
1,416.32 
2,339.81 
6,575.52 
275.07 
2,612.86 



23,603.09 
3,293.18 



$ 103,753.02 
$ 209,198.57 



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