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FEB 2 6 1975

STATE DOCUMENTS

COUDLu third

STATE OF MONTANA ANNUAL
DECEMBER, 1974 REPORT

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^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

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

3,083

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

2,667

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

2,122

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

5,386

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

9,837

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.

I I

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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

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-

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

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

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

Over

Seller (years)

20-99%

100-199%
Tax Rate (%)

200%

Less than 6 mos.

6mos. -lyr.

47.5

72.5

1-2

2-3

32.5

47.5

3-4

4-5

17.5

22.5

5-6

6-7

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

A holds 57 surplus
rights

100

B holds sufficient
rights

70
210

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).

-96-

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

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:

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.

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(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

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.

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

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(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-

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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

—143-

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

Departnieni of

Health and Environmental

Sciences

Department of
Highways

Department of
Livestock

Department of
Natural Resources
and Conservation

Department of
State Lands

Department of

Intergovernmental

Relations

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

—147—

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