Opinion: Enough notice is the law, not an option – Great Falls Tribune, Oct. 12, 2012

October 12, 2012

Categories: Coal, Newspaper editorial


For a little while Wednesday, the Montana Fish, Wildlife and Parks Commission planned at its Thursday meeting to consider an easement to allow the Tongue River Railroad to build across a state-owned Miles City fish hatchery at its Thursday meeting.

The Tribune’s John S. Adams inquired about the status of the agreement. After that, the item was pulled from the FWP Commission’s agenda.

There is nothing wrong with public entities changing items on their meeting agendas. Sometimes reports are delayed, more information is needed or significant parties are unable to attend a meeting. State entities are bound by state law to provide adequate public notice when a quorum is meeting and of the agenda. No action can be take on matters unless the public has been provided adequate notice.

The rule applies to all state and local government entities in Montana, from the State Land Board and airport authorities to school boards and county commissions.

The Tongue River Railroad FWP Commission easement is a perfect example of why this law, often bemoaned by elected and other public officials, is critical to all of us.

It’s been a long, drawn out negotiation process, with strong advocates and opposition, court rulings and the possibility of property acquisition through eminent domain.

The Tongue River Railroad has a new ownership group, further complicating matters.

Last year, the 9th U.S. Circuit Court of Appeals ruled that the railroad’s environmental impact statement was insufficient. Then in June, the Surface Transportation Board ordered the railroad’s new owners to submit a new application.

It’s not surprising that there appears to be a desire by FWP to make a decision on the matter one way or the other and move on to other business.

FWP Director Joe Maurier on Wednesday said the decision to add the easement agreement to the agenda for Thursday’s meeting stemmed from an Oct. 9 letter from the railroad’s owners notifying the agency that the company was prepared to execute the easement deal. After it was pulled, an agency spokesman said it was because commissioners wanted more time to review the proposal before taking action.

The abrupt addition and then removal of the easement from the commission’s agenda marks the third time this year that the commission was set to consider an easement agreement with the railroad. The February meeting was canceled because of a light agenda and the matter was moved to the March 16 meeting agenda instead. At the time Maurier told the Helena Independent Record he wanted to “settle the Tongue River Railraod matter.”

But then Maurier canceled the March 16 meeting without explanation.

Whether there’s any merit to it or not, some opponents of the railroad are raising claims that the commission is trying to push the agreement through without public notice or comment.

“How much notice is enough notice?” Maurier said. “There are no changes. We’ve heard all the testimony before. Nothing has changed.”

Montana law states that “Each agency shall develop procedures for permitting and encouraging the public to participate in agency decisions that are of significant interest to the public.”

The Montana FWP procedure is to publish an online agenda a week to a week and a half before a meeting. News releases are also issued. There are instances when items are added to the original agenda, but that is done rarely.

Clearly, inadequate public notice was provided in this case.

Private landowners are seeing red at the thought of a private, for-profit business could acquire the power of federal eminent domain to take private property. There’s call for a more thorough environmental impact statement for a project that will, among other, things pass through a hatchery were endangered pallid sturgeon are raised. Other interests are working to prevent coal from Otter Creek to be shipped, via the railroad, to the West Coast for export to Asian markets because of environmental concerns.

Even though a fair share of those interested parties may not have relevant comments to contribute when it comes to the easement agreement that FWP commissioners will vote on, they all are entitled to know when is vote scheduled and to listen to commission members’ discussion of the issue.

That, Mr. Maurier, is enough notice. Please make sure it is provided when the easement is included on any future FWP Commission agendas.


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