How the Montana Constitution shapes the state’s environmental landscape

On March 22, 1972, all 100 delegates to the Montana Constitutional Convention gathered at the Capitol in Helena to sign off on a new state Constitution they’d just spent months researching, debating, negotiating and writing — and which would be ratified by voters on June 6 of that year. In observance of the 50th anniversary of the delegates’ adoption of the document, Montana Free Press this week presents a series of articles exploring the state Constitution’s history, legacy, influence and future. Today: Protecting Montana’s environment for present and future generations.

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Article II Section 3: Section 3: All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.

As unlikely as it may seem today, when attitudes toward overarching environmental concerns like climate change align along reliably partisan fault lines, many of the country’s bedrock environmental protections enjoyed widespread bipartisan support when Republican President Richard Nixon was in the White House. In the late 1960s and early 1970s, the U.S. Senate unanimously approved landmark laws like the Endangered Species Act and the National Environmental Policy Act — measures that garnered yes votes from more than 95% of U.S. House members as well. Near-universal support for these and other environmental measures helps illustrate the national mood in 1972, when 100 Montana delegates convened in Helena for the Constitutional Convention.

It was a time when western Montana rivers like the Clark Fork were laden with heavy metal contamination from industrial mining, terraced clear cuts were en vogue on the Bitterroot National Forest, and air in the Missoula valley was sometimes so thick with pulp mill pollution that Mount Sentinel was rendered invisible from downtown. Enshrining a new approach to environmental protection beyond what was afforded by the 1889 Constitution, which had been drafted under the leadership of Butte copper baron and pollution apologist William A. Clark, was top of mind for Bob Campbell and Mae Nan Ellingson, two convention delegates who hailed from Missoula.

In addition to championing key environmental protections, Ellingson and Campbell were the primary authors of the Constitution’s poetic preamble, which reads like a portrait of the extraordinary backdrop against which delegates prioritized the values of their time and their hopes for future generations of Montanans:

“We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution.”

To better understand how key environmental and natural resource provisions in the Montana Constitution have played out in the 50 years since Campbell and Ellingson wrote that preamble, Montana Free Press interviewed legal scholars, environmental activists and practicing attorneys for their perspectives on how the Montana Constitution has, sometimes literally, shaped the Treasure State.

Article IX, Section 1, Part 1: The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.

The inclusion of “clean and healthful” — language that appears in the Constitution’s Inalienable Rights article as well as the Environmental Rights and Natural Resources article — was a subject of great debate during the Constitutional Convention. Delegates argued whether environmental protections would be strengthened or weakened by the adjectives, according to Michelle Bryan, a University of Montana law professor specializing in environmental, natural resource and water law. 

Delegate Campbell argued that merely providing for “an environment” would hardly do right by future generations. He preferred stronger language. He and the other proponents prevailed, and the inalienable right to a “clean and healthful environment” was further fleshed out in Article IX, which directs the Legislature to “provide adequate remedies for the protection of environmental life support systems” and “prevent unreasonable depletion and degradation of natural resources.”

It took a couple of decades before Montana courts really scrutinized and added legal flesh to the new right, according to Bryan, who noted that litigants have raised the right in arguments more frequently than courts have cited it in decisions. Even so, there is a 1999 decision that Bryan describes as being “pivotal” in its interpretation: The Montana Supreme Court’s 1999 ruling in Montana Environmental Law Center v. the Montana Department of Environmental Quality, which established that the judicial branch need not wait for an environmental harm to occur before acting to prevent it. 

A trio of environmental nonprofits concerned about DEQ’s approval of an exploration permit for an open-pit gold mine in the upper Blackfoot River valley brought the case in 1995. The plaintiffs — Montana Environmental Information Center, the Clark Fork-Pend Oreille Coalition and Women’s Voices for the Earth — took issue with the agency’s decision to amend a mineral exploration license to allow the exploration company to discharge groundwater high in zinc and arsenic, a naturally occurring carcinogen, into the shallow aquifers of the Blackfoot and Landers Fork rivers. Citing a law that the Legislature had recently passed, DEQ had determined that the discharge could be allowed so long as it occurred within a “groundwater mixing zone.”

The state Supreme Court referred to Constitutional Convention transcripts for insight into the delegates’ “clean and healthful” intentions and the Legislature’s obligation to provide “adequate remedies to prevent unreasonable depletion and degradation of natural resources.” That record provided evidence, the justices wrote in their 1999 opinion, that “The delegates did not intend to merely prohibit the degree of environmental degradation which can be conclusively linked to ill health or physical endangerment … Our constitution does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.”

A more recent Montana Supreme Court decision involving DEQ’s issuance of an exploratory drilling permit to Canadian mining company Lucky Minerals also plays into the “clean and healthful” discussion. 

In 2011, lawmakers had amended the Montana Environmental Policy Act to specify that “a permit, license, lease or authorization issued by an agency is valid and may not be voided … modified or suspended pending the completion of an environmental review.” The new law was designed to allow permitted projects to proceed even as they were challenged in court. 

In the Lucky Minerals case, the state Supreme Court agreed with plaintiffs Park County Environmental Council and Greater Yellowstone Coalition in ruling that DEQ failed to take a “hard look” at how the company’s proposed mining operation in Paradise Valley would impact wildlife, groundwater and streams. The court’s opinion also scrutinized the 2011 MEPA amendment. The plaintiffs argued that if Lucky Minerals had been allowed to continue with drilling operations green-lighted under its exploration license while court-ordered environmental impact studies were being conducted, any potential remedies might come too late to rectify damages already done. The plaintiffs said that would have violated their right to a clean and healthful environment and compromised their ability to participate in government proceedings — another constitutionally protected right.

The court agreed and declared the 2011 MEPA amendment unconstitutional. 

“The 2011 Amendments seek to allow Lucky to commence this work before DEQ completes supplemental review, a review that can be expected to achieve very little beyond informing Montanans — perhaps tragically — of the consequences of the actions that have already been taken,” the court’s ruling said. “A remedy implemented only after a violation is a hollow vindication of constitutional rights if a potentially irreversible harm has already occurred.”

“Who is to advocate for this sense of intergenerational justice? It’s so often ignored, but it becomes a really acute issue when you’re dealing with the destruction of a functioning atmosphere.”

Kalispell attorney Roger Sullivan

The right to a clean and healthful environment is also at the heart of an active lawsuit that challenges the state’s approach to energy permitting. In Held v. State of Montana, 16 youth plaintiffs have argued that the state has favored a fossil-fuel-based energy system that has resulted in dangerous levels of greenhouse gas pollution being released into the atmosphere and contributing to climate havoc. The lawsuit, filed in March 2020, claims that preferential posture violates the plaintiffs’ constitutional rights to a clean and healthful environment and to seek safety, health and happiness. Among other laws and policies, it singles out the State Energy Policy and a 2011 law barring state agencies from considering climate change under the Montana Environmental Policy Act.

Roger Sullivan, one of the attorneys litigating the case, said his clients’ claims are further reinforced by the delegates’ explicit inclusion of “future generations” in the Constitution. Sullivan says that language is one reason he considers the case stronger than similar lawsuits filed in other states in coordination with Our Children’s Climate Trust, a nonprofit that provides legal services for youth pursuing judicial solutions to climate threats.

“Who is to advocate for this sense of intergenerational justice? It’s so often ignored, but it becomes a really acute issue when you’re dealing with the destruction of a functioning atmosphere,” Sullivan told MTFP. “It implicates these provisions [of the Constitution] very, very explicitly.”

Article IX, Section 3: All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial use as provided by law.  

The Constitutional Convention came at an interesting time for water law in the American West. According to a 2006 report on stream access in Montana prepared by the University of Montana’s Public Policy Research Institute, delegates were concerned that the state’s waters “were in danger of being wholly appropriated by downstream states and the federal government.” The language they came up with in Article IX, Section 3 was based on lawsuits in Colorado and Wyoming, states wrestling with similar concerns. At least one delegate expressed unease with the inclusion of the phrase “for the use of its people” out of concern that it would weaken private property rights and introduced an ultimately unsuccessful amendment to strike the language. Another delegate argued, “I don’t think we want to get into the recreation access situation in a Constitution” and maintained that the provision was intended to simply establish that “this is Montana water, we want to keep it for Montana.”

The landmark lawsuit fleshing out public access to Montana waterways is known as the Curran case, which was decided in 1984. Dearborn Ranch founder Michael Curran had blocked public access to stretches of the Dearborn River that flowed through land he owned or leased from the state. Butte sportsmen, frustrated with interference from Curran and his agents while recreating on the Dearborn, brought a lawsuit asserting that they — and other members of the public — were within their rights to float and fish the river.

Bozeman constitutional and environmental attorney Jim Goetz secured a favorable decision for the Montana Coalition for Stream Access in district court. Curran then appealed the decision to the Montana Supreme Court, which referenced Article IX, Section 3 of the state Constitution in its decision. The court ruled that the Constitution and the public trust doctrine — a centuries-old doctrine that’s been interpreted to establish that states hold title to navigable waterways in trust for public benefit and use — “do not permit a private party to interfere with the public’s right to recreational use of the surface of the State’s water.”

As a result of that ruling — and a similar decision issued by the Montana Supreme Court the same year involving the Beaverhead River and another access-averse landowner by the name of Lowell Hildreth — Montana has developed “probably the most progressive [stream access] law in the country,” Goetz said. 

UM law professor Bryan said part of what makes stream access in Montana so unique is how it’s applied relative to other states.

“We have a more liberal application of the public trust doctrine,” she said, explaining that in some states, private landowners own the streambeds of non-navigable waterways. In Montana, even waterways deemed non-navigable — the smaller ones, generally — are held in trust for the public, meaning the public has access to them under state law so long as recreational use is supported.

Also of note is the Montana Legislature’s work around stream access. In 1985, the year after the Curran decision, the Legislature passed the Montana Stream Access Law. In addition to codifying the public’s right to use streams and their beds and banks up to the high-water mark, the law made it explicitly legal for recreationists to moor boats, camp overnight and place seasonal duck blinds when recreating on surface waters (though the latter two activities are subject to some restrictions).

A 2009 law further strengthened river access by affirming that the public can use bridges and county roads to access surface waters for recreational purposes. Additionally, it laid out a path for opening access in places where fences hinder public use of bridges. Montana Fish, Wildlife and Parks is responsible for coordinating with affected landowners and county officials to create public passage around or through such fences.

The Bozeman-based Public Land Water Access Association echoes Goetz in its assessment that Montana has “arguably the strongest law in the nation in terms of ensuring public access,”  and the nonprofit has sued on multiple occasions to protect that right. One of those lawsuits turned into a decade-long saga to determine whether landowner James Cox Kennedy could legally install barriers and electric fences along bridge abutments to block public access to southwest Montana’s Ruby River. Kennedy had argued that public access to the stream amounted to a “taking” of his property. 

The Montana Supreme Court disagreed, and in 2014 ruled that the public could use county-owned bridges to access the river via easements that extend five feet downstream and upstream of the bridges. In the decision, Justice Michael Wheat said Kennedy “presents no persuasive argument that a compensable property interest has been taken from him or that we should overturn our precedent and disrupt long-settled constitutional law.”

INFLUENCE OF RIGHT-TO-KNOW AND RIGHT-TO-PARTICIPATE PROVISIONS 

Environmental advocates, legal scholars and attorneys point out that Montana’s environmental rights are buttressed by other rights established in the 1972 Constitution that don’t have obvious connections to public access or the condition of the state’s land, water and wildlife. Those include the right to know and the right to participate, which give environmental advocates access to the inner workings of state government and the Legislature.

Anne Hedges, the Montana Environmental Information Center’s director of policy and legislative affairs, says those provisions make government accessible in Montana, especially compared to the federal government and other states.

“You can’t even get to a conversation about a clean and healthful environment until you have access to the government’s decisions and its documents about why it’s making those decisions,” she said. “It’s just foundational.”

“You can’t even get to a conversation about a clean and healthful environment until you have access to the government’s decisions and its documents about why it’s making those decisions. It’s just foundational.”

Anne Hedges, director of policy and legislative affairs, Montana Environmental Information Center

Hedges was commenting on something that Sullivan, the attorney litigating the youth climate change case, also noted: that the Constitution is both a “bundle of enforceable rights” and a kind of “presence” with influence extending to all branches of government and across the state’s citizenry. 

“It’s difficult to explain how that finds its way into the political culture of Montana over the course of the last 50 years, but I would submit that it has,” Sullivan said. 

Sullivan happened to be with his 15-year-old granddaughter when he was contacted for this story. He said it’s his hope that his generation recognizes the intergenerational duty established by the Montana Constitution, and heeds its call. 

“[It’s my hope] that we leave to her a functioning environment [with] clean water, unpolluted air and a functioning atmosphere — and that she, in turn, fulfills her duty to the following generation to leave the same,” he said.

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