Carbon County approves citizen initiated zone to check oil/gas development – Carbon County News, Dec. 18, 2014

December 19, 2014

Categories: Agriculture, Clean Water, Landowner Rights, News, Oil and gas

By Eleanor Guerrero

On Monday, Dec. 15, the Carbon County Commissioners took the first step towards citizen initiated zoning in the Belfry area by unanimously approving their intent to create a citizen-initiated zone. Petitioners believe it will protect included landowners from unchecked oil and gas development. The Commissioners found that the zone is “in the public interest and convenience for public health, safety and welfare, and for public infrastructure.”

“We’re very excited to move forward on this process,” said Bonnie Martinell, a Belfry organic farmer and member of the Carbon County Resource Council (CCRC), an affiliate of Northern Plains Resource Center (NP). “We’ll continue to work with Commissioners so that this is done right and done well.”

The Commissioners expressed some confusion over the process. The statute required that if in their discretion they chose to act, they must approve a motion for intent to create the zone and they were unsure when that would constitute the “creation” of the district that would trigger the start of the 30 day comment period. The process once started, would allow parties in the proposed area to make their opposition known.

Attorney Steve Thuesen, appearing as a landowner in the proposed zone, stood up holding a handful of letters in opposition from other owners in the proposed zone. He claimed that he had at least 50 percent of the owners of the district able to oppose the plan.

The Commissioners agreed to take note of those already submitted in opposition as well as the statements made at earlier meetings pro and con for the first petition. A revised petition submitted earlier was certified by the Carbon County Clerk and Recorder as meeting the requisite percentage requirement for applying for the zone. Thuesen said the opposition would also be determined to meet the requisite percentage to kill it. Commissioner John Prinkki said of the approved motion, “It may be moot.” Grewell said any opposition would have to be certified as meeting the sufficient percentage to cancel any such zoning application. If not, the process would go forward to create the zone.

The meeting started with Commissioner John Grewell reading a lengthy letter into the record from Michael Dockery of Crowley Fleck Attorneys, PLLP, Billings, representing Energy Corporation of America (ECA). ECA had announced on Friday, Dec. 12, in a statement by Chief Operating Officer Kyle Mork that it was not pursuing its current Belfry well or any in the area at this time.

Dockery gave extensive reasons why citizen initiated zoning should not be approved including: it was a taking of the rights of ECA (which holds current oil/gas drilling permits) and other potential permit holders; it violates a state mineral resource protection clause constituting an unlawful delegation of governmental powers; it violates the Carbon County Growth Policy in that it conflicts with its intent to work with government including the Oil and Gas Board; that the number of signatures of owners in interest were not sufficient since it did not include mineral rights holders; that there was no public benefit and that it was spot zoning.

Attorneys Hertha Lund and Susan Swimley, representing Northern Plains, were present and dismissed each claim in turn. Swimley is a former Gallatin Chief Deputy Attorney and had represented counties for ten years. Lund said she represented land use issues for years and that the issue of takings (the question of whether a party has burdened someone’s real property ownership to the point of depriving that owner of his legal right to use and enjoyment) were “one third of my practice.”

Lund said, “There is no taking here,” claiming it was “a red herring.” She told the commissioners, “You have a unique opportunity to get some things in place before it becomes a hot issue and protect this beautiful area. You can get ahead now that they’re backing off,” referring to ECA.

Lund said it was the way to have reasonable road regulations such as spreading oil and protecting water quantity and quality as well as air quality. She said Richland County, which suffers road deterioration due to heavy truck traffic from development streaming through daily, “would give its eye teeth to have such an opportunity.”

Lund said, “There is nowhere in the State of Montana that has surface owners (and) mineral owners sign off.” She stated firmly, “This is not a taking.” Swimley agreed “100 percent, it’s not a taking,” and there is no such case in Montana law.

The “Silvertip” zone covers more than 2,000 acres north of Belfry. According to NP, it creates basic landowner protections for air, water, and land, setback requirements, and gives landowners a voice in the type of oil and gas development on their property.

“We just want them to drill to industry standards and best practices,” said Martinell. She said the zone is necessary to protect landowners when oil and gas development picks up again.

The County will publish an intent to create the district. On Thursday, Jan. 15, at 10:30 a.m., the Commissioners set another public meeting to review the issues.


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