Given that Montana’s top two industries are agriculture and recreation, it should come as no surprise that Montanans are quick to engage with policies seeking changes to the water and open space that are foundational to both.
How proposals to change water rights, stream access and conservation funding were received by policymakers the past four months illuminates entrenched sources of tension — between developer and agricultural interests, between federal and state wildlife managers, and even between Montana Gov. Greg Gianforte, a Republican, and members of his own party. Here are three takeaways from the 2023 legislative session informed by bills that passed, bills that failed and funding fights that remain unresolved.
PROPOSALS SEEKING TO CHANGE STREAM ACCESS, PERMANENT CONSERVATION EASEMENTS AND EXEMPT WELLS FLOUNDER
Three proposals seeking to change what might be euphemistically called “sensitive pieces of code” failed to find favor this session, suggesting Montanans’ continued — and impassioned — engagement with public land access and water rights issues.
One failed measure, Senate Bill 357, sought to prohibit the state from acquiring permanent easements, which the Montana Department of Fish, Wildlife and Parks use to support wildlife habitat and public access initiatives. After garnering opposition from a diverse set of stakeholders, ranging from timber companies and agricultural associations to conservation organizations and hunting advocacy groups, the Senate Fish and Game Committee tabled the bill over the wishes of its chair (and SB 357 sponsor), Steve Hinebauche, R-Wibaux, who had argued that “forever is a long time” and that a proliferation of perpetual easements could impede the construction of infrastructure such as roads and transmission lines. Opponents of SB 357 countered that those who enter into easement agreements do so willingly and that conservation easements support the wildlife, recreational opportunities and open spaces many Montanans treasure.
Another proposal to change Montana law dealing with easements — in this instance, rights of way that have been historically used by the public, but never codified on a deed — had a swift rise and an equally swift fall this session. With little in the way of public notice, the Senate Judiciary Committee held a hearing on and passed Senate Bill 497, which sought to do two things: establish that a landowner can use the presence of government signs over a five-year period to void prescriptive easement claims, and prevent groups who sue over easement issues from recovering attorneys fees.
In the midst of the transmittal break crunch, SB 497 failed in the Senate, 14-36. Sen. Jeff Welborn, R-Dillon, argued that it doesn’t work well to meddle with a “sensitive piece of code” like Montana’s Stream Access Law without bringing stakeholders along, especially in the “11th hour.”
Finally, a real estate- and building industry-backed proposal to expand a loophole in water law dealing with groundwater wells failed to overcome an outpouring of opposition. Agricultural groups leery of House Bill 642’s potential to reduce other users’ access to water opposed the measure, as did environmental groups concerned about its capacity to degrade water quality and facilitate residential sprawl. Proponents had argued the revisions would help expand the state’s tight housing supply and introduce more clarity and lawmaker input to the Montana Water Use Act, which has been subject to judicial scrutiny in recent years.
Given the makeup of this Legislature, lawmakers probably could have passed a more moderate proposal, some onlookers suggested.
“Proponents of that bill probably could have passed something, but I think they went way too far,” Montana Environmental Information Center Deputy Director Derf Johson said. “House Natural Resources is probably the most pro-development committee in the Legislature [and even they] wouldn’t let that move forward.”
LAWMAKERS TANGO WITH FEDERAL GOVERNMENT OVER GRIZZLY MANAGEMENT
In the natural resource realm, nothing seems to spotlight the tension between federal and state regulations as brightly as endangered species management. Threatened or endangered species are subject to federal protections that limit states’ ability to set population targets, establish hunting seasons and permit habitat-altering timber sales or mining projects. During the 2023 session, lawmakers engaged in a careful dance with the U.S. Fish and Wildlife Service, which is taking a close look at the recovery of grizzly bears and Montana wildlife laws as it considers removing federal protections.
In February, USFWS Director Martha Williams wrote a letter to FWP Director Henry Worsech highlighting state laws that might work counter to Montana’s efforts to assume control over grizzlies. She wrote that the 2023 legislative session “presents a good opportunity” to address those concerns.
The Legislature took Williams’ recommendation to heart. Though lawmakers ultimately decided to shelve a proposal titled “require management of delisted grizzly bears at sustainable levels,” they did pass Senate Bill 295, “Revising Laws to Accommodate Grizzly Delisting.” That bill directs the state to “manage grizzly bear populations at levels necessary to maintain delisted status,” by sticking to an established mortality threshold. SB 295 critics note that it makes it legal, post-delisting, for a rancher to obtain a permit to kill a bear “threatening” livestock without specifying the behavior that constitutes “threatening.”
Mindful of Williams’ recommendations — and Gov. Greg Gianforte’s explicit desire to resume state management of grizzlies — the Legislature balked at passing predator hunting measures sponsored by Rep. Paul Fielder, R-Thompson Falls. Fielder had attempted to write seasons for trapping wolves and pursuing black bears with hounds into state law. He also sought to override the Fish and Wildlife Commission’s ability to disallow neck snares. All three proposals narrowly failed the GOP-supermajority in the House, largely due to concerns that they would lead to preventable grizzly bear deaths.
THE FIGHT OVER HABITAT MONTANA FUNDING IS ONGOING
One of the Legislature’s biggest fights concerning land management — where marijuana tax revenues should be allocated — remains unresolved. Gianforte and backers of a bill that garnered the approval of 86% of lawmakers remain locked in a tense separation-of-powers tussle over a bill that would establish a fund to support habitat and conservation initiatives.
Marijuana tax allocation had been a long-simmering fight this session, but it hit a fever pitch during the Legislature’s final week.
A variety of different visions for the marijuana taxes emerged this session as policymakers garnered clarity on just how much money is at stake: more than $50 million annually. Some legislators, such as Rep. Marta Bergtolio, R-Montana City, suggested that the Legislature should cut the allocations for conservation and recreation programs codified in law last session and funnel more money toward law enforcement and the Department of Justice. Others, such as Rep. Bill Mercer, R-Billings, and House Appropriations Chair Rep. Llew Jones, R-Conrad, called for the bulk of collections to go toward the General Fund so lawmakers have an opportunity to allocate the funds toward the state’s most pressing needs on a session-by-session basis. But Senate Bill 442, the proposal that garnered the most support among both lawmakers and public commenters, seeks to divide those revenues between county road construction and maintenance, conservation and recreation initiatives, and programming for addiction treatment and veterans. A sizable chunk would go toward the General Fund as well.
That proposal might have garnered widespread support from the legislative branch, but it didn’t align with the priorities of the governor, who has argued that funding for wildlife habitat is in good shape while other state responsibilities remain underfunded. The Bertoglio bill Gianforte favored died somewhat early, and an attempt to reincorporate much of it in a late-session “generally revise marijuana laws” bill floundered. Then, the day after the Senate issued its final vote on SB 442, Gianforte made good on his pledge to Republican leadership to veto it, rejecting the proposal with a swiftness that Sen. Minority Leader Pat Flowers, D-Belgrade, described as “curious.”
Now there’s a question as to whether lawmakers should have a final opportunity to weigh in on SB 442 by voting to override the veto. That question hinges on whether the Legislature was technically in session — the governor’s office maintains the veto was issued before the Senate moved to adjourn — and whether lawmakers were given sufficient notice of the veto. In letters and petitions to Jacobsen and Gianforte, Lang and other SB 442 backers such as the Montana Association of Counties, Wild Montana and Montana Backcountry Hunters and Anglers, have argued a veto override poll is justified by the circumstances since the governor’s veto was not clear when the Senate voted to adjourn.
On May 10, Wild Montana sent a letter to Gianforte urging his cooperation with the veto override process. In it, they argue that the constitution and state law make “crystal-clear” that the Legislature should have the final say in this instance and there is no legal support for stripping that power from the Legislature with “creative timing.”
Secretary of State Christi Jacobsen appears to be disinclined to get into the middle of the debate. In an email to Montana Free Press, Secretary of State spokesperson Richie Melby said his office “plays a ministerial role only” for the executive and legislative branches and “bills vetoed during the legislative session are not returned to the Secretary of State’s Office.”
“I have lots of questions,” Sen. Lang told MTFP. “I still question whether it was legally vetoed.”
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