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Come November, Montana voters will decide whether to adopt some of the most significant changes to the state Constitution since its creation and ratification in 1972 — changes that would reshape Montana’s primary elections and enshrine the right to abortion in Montana’s foremost governing document.
The appearance on the 2024 ballot of the three constitutional initiatives that would enact those changes came down to the wire this week as Secretary of State Christi Jacobsen faced an Aug. 22 deadline to certify every statewide candidate and ballot issue that will be put to voters this fall. After verifying the tens of thousands of signatures submitted by the initiatives’ backers this summer, Jacobsen certified all three.
For the initiatives collectively, the path to the Nov. 5 ballot was a bumpy one, sparking seven lawsuits and a flurry of legal orders over the past year. Some resistance came from groups fundamentally opposed to the abortion right proposed by CI-128 and from some Republicans who argued that the departure from separate party primaries proposed in CI-126 and CI-127 would minimize or even “obliterate” the traditional role of political parties in Montana. But the initiative process itself triggered the bulk of the court action as sponsors pushing the petitions tussled with Jacobsen and Attorney General Austin Knudsen over their legal interpretations of key details.
To understand each of those conflicts in the context of the 2024 ballot issue calendar, MTFP this week compiled an interactive timeline of the various developments and disputes that have arisen since last fall. Some served to slow the process for days or weeks while elected officials, attorneys and judges sorted matters out. Others prompted confusion among sponsor groups and county election workers about the state’s rules for signature-gathering and verification.
Backers asserted the delays were intentional tactics by Jacobsen and Knudsen to stymie the initiatives’ advancement. Both officials have repudiated such claims, arguing that they were simply carrying out their duties as overseers of the initiative process.
Now that the protracted saga has played out, and with county election offices slated to send out the first wave of mail-in ballots in just over a month, voters will have the final say on the initiatives’ success or failure, and what the Montana Constitution will contain in years to come.
READ MORE: Three constitutional initiatives’ long legal road to the ballot
—Alex Sakariassen, Reporter
The Gist 📌
Profoundly low water levels in many of the state’s most treasured waterways have prompted Montana Fish, Wildlife and Parks to assert water rights it secured some 50-odd years ago to protect cold-water fisheries.
The most prominent of those rights are dubbed Murphy Rights in a nod to James Murphy, a Republican lawmaker from Kalispell who sponsored a bill in 1969 to appropriate water for 12 of the state’s blue-ribbon rivers to protect fish habitat.
There are other water rights that FWP can use to bolster in-stream flows, too. Between Murphy Rights, water rights that the state administers to mitigate environmental threats posed by the Libby Dam on the Kootenai River, and other water rights established for recreational purposes like floating and angling, FWP has asserted its water rights on 10 rivers in central and western Montana this summer. Those calls are an adaptation to a season that FWP instream flow specialist Stephen Begley described as a “real challenge.” Other agency responses have included hoot-owl closures that prohibit fishing after 2 p.m. in response to trout-stressingly warm water temperatures (most of which have since been lifted) and all-out angling closures along some of the state’s smaller rivers that struggled with particularly low flows.
The Blackfoot, Missouri, Gallatin, Beaverhead, Jefferson, Smith and Shields are among the rivers where FWP has used its rights to “make a call,” or asked rights holders with a more junior water right — e.g., one that was issued after FWP’s — to cease their withdrawals. There are some exceptions, including for water rights used for domestic purposes.
The good news? We are edging into the “August singularity,” a period when shorter days, slackening temperatures and perhaps a bit of precipitation should bring some relief to Montana’s rivers and the aquatic ecosystems they support.
—Amanda Eggert, Reporter
Public Comment 🗣️
Monday, Aug. 26, marks one of the last scheduled meetings of the Behavioral Health System for Future Generations Commission before the group passes its report of recommendations to Gov. Greg Gianforte. The latest draft of the report can be viewed here.
The group, led by state health department Director Charlie Brereton and Rep. Bob Keenan, R-Bigfork, has been compiling proposals for fixing gaps in the state’s services for Montanans with mental health issues, substance use disorders and developmental disabilities. Ultimately, Gianforte will have final decision-making power over what recommendations to endorse, and how much money to put toward each idea.
This month’s meeting was originally scheduled for Aug. 8, but was bumped at the health department’s request to have more time to “review, analyze, and incorporate” feedback provided by lawmakers in a July meeting.
Monday’s meeting is scheduled to take place at the state Capitol building in Helena in Room 152, from noon to 3 p.m.
Materials, a Zoom link for remote testimony and an agenda can be found on the commission’s website.
—Mara Silvers, Reporter
By the #s 🔢
Amount of federal COVID-19 relief funding Montana’s Office of Public Instruction has redirected toward direct teacher support via the national crowdsourcing nonprofit DonorsChoose.
State Superintendent Elsie Arntzen announced the initiative Tuesday, signaling her office’s last-ditch effort to spend a portion of the money it received from the third federal Elementary and Secondary School Emergency Relief (ESSER) package. Montana teachers will be able to apply for up to $500 in ESSER funding through DonorsChoose to secure classroom materials for individual projects related to math and literacy. According to OPI, the grants will be distributed on a first-come, first-served basis until the entire $1.5 million is exhausted, or until Montana reaches the Sept. 30 spending deadline set by the U.S. Department of Education. The plan mirrors similar DonorsChoose partnerships crafted by eight other states working to spend their ESSER funds ahead of federal deadlines.
The funds represent a small slice of the $382 million Montana received in the third round of ESSER. State lawmakers directed roughly 10% of that money to OPI for a variety of specific uses including modernizing the office’s data systems and addressing statewide learning loss resulting from the pandemic. The other 90% of ESSER money was allocated directly to Montana’s 397 public school districts. As of Aug. 20, roughly $100 million of that money remained unspent.
READ MORE: OPI announces last-ditch spending strategy for federal COVID-19 funds
—Alex Sakariassen, Reporter
Highlights ☀️
- Aside from the obvious narrative value of Mara Silvers and Alex Sakariassen’s report this week on the fraught journey of three constitutional initiatives from conception to the ballot, the story contains an equally informative and very cool interactive timeline that puts the initiatives’ progress in context.
- I used to live on a stunningly tree-lined street in Missoula, so the stats in Katie Fairbanks’ report on the long road ahead for the Garden City’s urban foresters give me especially awed pause.
- I’ve been a fan of Chris La Tray’s writing, and the thinking behind it, for years, so it was a very special pleasure to be able to publish an excerpt of his new book, “Becoming Little Shell,” this week.
- I’m just another reader with questions when it comes to the ongoing saga of the breakdown of the Milk River irrigation project, so I’m grateful that Tom Lutey is keeping tabs on the bouncing money ball behind the enormously complex project to repair one of the state’s most critical pieces of water infrastructure.
- And Zeke Lloyd’s report on the 80th anniversary of Smokey Bear, one of the most successful (if not universally applauded) pieces of federal propaganda in American history, is just a delight start to finish.
—Brad Tyer, Editor
Following the Law ⚖️
The Montana Supreme Court’s decision last week striking down the 2013 Parental Consent for Abortion Act continues to make waves among the state’s anti-abortion advocacy groups and elected officials. According to a recent radio interview with Gov. Greg Gianforte, the dust might be far from settled.
Speaking on the Montana Talks program on Aug. 16, Gianforte slammed the unanimous ruling that found that minors have a right to access abortion without parental consent, as the state Constitution explicitly establishes the ‘Rights of Persons Not Adults.’ The governor, a Republican, called the ruling “outrageous” and pledged to appeal.
“We’ve looked at it. They made some absurd assertions in this ruling. We’re going to appeal it because I believe parents know what’s best for their kids,” Gianforte said.
The options for appealing a state Supreme Court ruling are fairly narrow, said University of Montana School of Law professor Anna Conley. The state would have to identify a federal right implicated by the state court ruling and ask the U.S. Supreme Court to review it, a filing called a “writ of certiorari.” The court, Conley told MTFP, “accepts less than 5% of the petitions for a writ of certiorari filed each year.”
Then there’s the matter of the rights being debated. The Montana Constitution sets a high bar for the rights of minors and the right to privacy with explicit sections enumerating those rights. Federal courts, on the other hand, have acknowledged an “unenumerated” right to parent within the Fourteenth Amendment’s due process clause.
“We’re at a point in time where the U.S. Supreme Court right now has been changing the jurisprudence of due process rights,” said Mary Ziegler, professor of law at the University of California, Davis and an expert on the history of abortion policy in the U.S. One notable example of those changes, Ziegler said, was the court’s 2022 ruling overturning Roe v. Wade and ending a 50-year era of federal protections for abortion access.
The court has made few landmark decisions about parental rights in the last 20 years, Ziegler said, but recently accepted a petition to review a challenge from a Tennessee family against that state’s ban on gender-affirming care for transgender minors. If the court rules against parental rights in that case, Ziegler said, an appeal from Montana could potentially ask the court to issue a contradictory and expansive ruling for parental rights later on.
Another wrinkle, Ziegler said, is the question of what standing the state of Montana has to advocate for parental rights — an individual liberty claim typically made by parents — in the first place.
“Usually a parental rights claim would be a parent asserting that right against the state,” Ziegler said. Recently, she said, state legislatures have passed laws “claiming the mantle of parents’ rights without parents asking the state to do that,” setting up confusing legal challenges.
A spokesperson for Gianforte, Kaitlin Price, walked back his Montana Talks comments slightly on Monday, making the prospect of an appeal sound less certain.
“Our office is reviewing the decision to determine next steps, and an appeal is among the options on the table,” Price said.
Price did reaffirm the governor’s premise that the state Supreme Court ruling was incorrect. In the eyes of the administration, she said, the court’s ruling “undermines parental rights.”
READ MORE: Supreme Court settles more Montana abortion law
—Mara Silvers, Reporter
Fire Lookout 🔥
While much of Montana’s landscape currently features a small number of large, ongoing blazes, the state’s southeastern corner contains several new fires that grew rapidly over the last several days.
The Barber Draw Fire was first reported in Big Horn County on Wednesday and has already grown to 6,739 acres. As the blaze spreads south, Tongue River Reservoir State Park has been put under an evacuation warning, a recommendation indicating residents should be ready to evacuate, marking the park’s third evacuation notice this season.
Just across Big Horn County’s northern border, the Bull Fire now covers 700 acres in Rosebud County. Like the Barber Draw Fire, the Bull Fire was first reported on Wednesday. The Chalky Point Fire, a 500-acre blaze also on the border between Rosebud and Big Horn counties, was first reported on Thursday.
On the other side of the state, the Grouse Fire continues to burn across more than 4,000 acres in Beaverhead County. The local team managing the fire does not expect it to substantially increase in size.
The weekend forecast does not indicate substantial wildfire risk. According to the National Weather Service, Friday afternoon presents the most fire-prone period of the next few days, with high winds and afternoon storms. The next several days are expected to bring rain, high humidity and mild temperatures. Air quality, though, could decrease as smoke from Washington, Oregon, Idaho and California fires blows through southwestern Montana.
SEE ALSO: MTFP’s summer 2024 fire dashboard.
—Zeke Lloyd, Fire Reporting Intern
On Our Radar 
Alex — Diving cold into a concert by an unfamiliar band isn’t usually how I roll these days. But after a surprise invite to join some friends for Khruangbin at Missoula’s KettleHouse Amphitheater this week, I’ve had this track on an endless loop (sadly, Leon Bridges didn’t make a live cameo).
JoVonne — After the 2024 Paris Olympic Games concluded earlier this month, Team USA brought home a total of 126 medals, making the U.S. the top-awarded country. I’ve found myself perusing AP photographers’ favorite photo picks from the competition’s most notable events that I might have missed.
Jacob — Google released its “Reimagine” tool alongside its new Pixel 9 phones and it appears to have few safeguards in place to prevent people from using it to add crashed cars or corpses to images. The tool democratizes advanced photo editing, but it also raises ethical questions about how AI can be used in ways that are harmful.
Zeke — If you have ever been inclined to ask an inanimate object about its preferences or personality, look no further than Everything Is Alive. I recommend starting with Sal the Sock or Alex, Alex, and Sebastian the Russian Dolls.
Matt — I’ve been impressed with the quality and variety of mural art in downtown Great Falls. This week, muralists are in town again to add to the body of work. See the pieces come together at Great Walls Montana on Instagram.
Katie — As MTFP has reported, Montana’s prisons are overcrowded. A recent Stateline article explores an interesting option gaining steam in some states to address increasing and aging prison populations and potentially save money.
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