Guest Opinion: Let’s Set The Record Straight

Guest Opinion: Let’s Set The Record Straight

By: James C. Nelson, Montana Supreme Court Justice (Ret).

On February 8th Senator (and lawyer) Steve Fitzpatrick (R-SD 10) published a guest view in the Independent Record chastising the Montana Supreme Court for a “stunning” decision. The Senator’s litany of complaints included that the Court violated the separation of powers, “eviscerated the Legislature’s power to make rules and manage its own affairs” . . . “granted itself the power to punish the Legislature,” invaded the province of the legislature to interpret its own rules, accused the Legislature of bad faith, and [took]the legislature to task for violating its norms, all the while ignoring its own norms and precedents.

The Senator identified neither the case nor what the Court’s decision was actually about. The name of the case is Forward Montana v. State by and through Gianforte, 2024 MT 19. The Court’s decision is well-written and easy to follow; read it at: FORWARD MONTANA v. STATE BY AND THROUGH GIANFORTE (2024) | FindLaw Forward Montana and other plaintiffs are referred to as Appellants.

The case.

During the 2021 session, the Legislature considered SB 319, which dealt with the regulation of joint political fundraising committees. Like most, the bill went back and forth between the Senate and the House and was amended. A free conference committee, appointed to consider amendments, apparently did not. However, two days before the Legislature adjourned, this committee added four new sections to the bill during a 17-minute meeting, closed to the public. Several of these amendments were almost verbatim from a bill that failed to pass during the session. The bill, so amended, passed both houses in the last 24 hours of the session.

Appellants challenged two of the amendments for violating Montana’s Constitution, Article V, sections 11(1) and (3). In pertinent part, these require: (1) [a] law shall be passed by bill which shall not be so altered or amended on its passage through the legislature as to change its original purpose, and (3) [e]ach bill, except 2 general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title.

After various proceedings and hearings, the District Court concluded that the amended bill violated both of the foregoing constitutional mandates. The State, represented by the Attorney General, chose not to appeal—resulting in the trial court’s decision becoming the law of that case.

Appellants moved for attorney fees under the “private attorney general doctrine,” and § 25-10-711, MCA–exceptions to the “American Rule” under which litigants generally bear their own fees. The District Court denied the fee request. Appellants appealed that denial. The Supreme Court reversed and applied the doctrine.

The decision.

In reversing the District Court’s decision, the Supreme Court concluded, among other things, that: Appellants were entitled to attorney fees because “[they] alone [vindicated] important constitutional interests. The Legislature disregarded its constitutional limitations, and the Attorney General offered no substantive or constitutional interests in defense of these actions;” because “[t]he Legislature must follow certain rules in enacting legislation to ensure transparency and public participation;” and “because of the process through which the unconstitutional sections of this Bill came to be: an obviously unlawful Bill adopted through willful disregard of constitutional obligations and legislative rules and norms.”

Thus, this case had nothing to do with the parade of horribles described by Senator Fitzpatrick. Rather, this case involved the issue of attorney fees awarded to a litigant pursuant to the private attorney general doctrine.

More to the point, this case involved a challenge to unconstitutional legislation rammed through at the end of the session and the Legislature sucker- punching the public’s Constitutional right to know.

Ironically, Senator Fitzpatrick demonized the Court for doing its job—i.e. holding the Legislature and Executive accountable for not doing theirs.

Guest Opinion: Oppose Montana Renewable’s Wastewater Permit

Guest Opinion: Oppose Montana Renewable’s Wastewater Permit

Why I Oppose Montana Renewable’s EPA Wastewater Permit

By Lisa Schmidt For WTF406

I raise cattle and sheep on my ranch that, fortunately, has 16 natural springs. Those springs are vital to my livelihood so I protect them fiercely. Contamination of the groundwater would cause irreparable harm to my natural resources and livelihood. Montana Renewables, a subsidiary of Calumet, produces biodiesel in Great Falls. The most efficient method to dispose of the wastewater is to treat it at the refinery. No-brainer.

Instead, the company currently trucks the wastewater 85 miles to load it on railcars and haul it to out-of-state waste sites. This is a temporary disposal plan. Montana Renewables has contracted with Montalban Oil and Gas Operations, hoping to inject that wastewater into two abandoned oil wells at the end of a gravel road 91 miles from the refinery and about five miles as the crow flies from my springs. These wells are within a half mile of Dupuyer Creek, which flows into Lake Francis. Lake Francis is the source for drinking water in Conrad, Valier and Brady, along with irrigation water for 77,000 acres of cropland.

To inject wastewater, owner Patrick Montalban needs a Class V permit from the Environmental Protection Agency. I’m concerned about this plan for three important reasons.
First, Montalban’s permit application describes the injectate materials as “including, but not limited to” vegetable oils and animal fat, among others. In other words, anything could go down those wells. Montana Renewables has never provided comprehensive test results of the wastewater to the Pondera County commissioners, Great Falls water treatment managers or the public, despite repeated requests.

A basic test of potential wastewater reveals that it is contaminated with trace amounts of arsenic, barium and lead, among other things, along with sky-high levels of salts and phosphorus. Water treatment managers normally treat water that contains 3 to 5 parts per million of phosphorus. Montana Renewables wastewater contains 250 ppm. Water treatment managers estimate rates would have to increase by $3 million to $4 million each year if they had to pull that much phosphorus from the water they treat.

Second, the permit application states that 171 times more material will be injected under pressure into the ground than was originally removed. Two containment layers of rock are supposed to maintain separation between the injectate and groundwater. Those layers are limestone and shale. Limestone is known to crack under pressure and shale is only semi-permeable, not impermeable, under pressure.

The permit application requires monitoring with the quarter-mile Area of Review. But Montalban and Montana Renewables corporate officer Bruce Fleming note that the Madison sandstone layer where they want to inject materials runs from Canada to North Dakota, so they have lots of space to fill with contaminated wastewater. But the Madison layer is also a source of groundwater past the quarter-mile, monitored Area of Review. Either the injectate remains within a quarter mile of the wells and builds incredible pressure or it is allowed to flow beyond the Area of Review and potentially contaminate groundwater.

Third, Fleming says people can drink this wastewater. This declaration that people can drink wastewater that contains more than 50 times the amount of phosphorus is only true because the federal government doesn’t have a drinking water standard for phosphorus, yet water treatment plants are required to remove it. Excessive phosphorus can cause diarrhea and hardening of organs and arteries. Fleming is not quite lying, but he certainly is not answering questions in the public’s best interests or being transparent about the process. One has to wonder why.
Montana Renewables has developed an exciting new process to produce biodiesel. They have a unique opportunity to demonstrate to the entire world how to handle wastewater the right way. They should embrace that opportunity.

The deadline for comments to the EPA is February 15.
Learn more at

The Grinch in Great Falls

The Grinch in Great Falls

By Pamela Carroll

On Tuesday, December 12, 2023, the Grinch revealed itself in Great Falls, Montana. I saw the mean-spirited character manifested in citizens of Cascade County. 

Cascade County Commission held their bimonthly meeting at the Expo Park in anticipation of large public attendance. Commissioner Joe Brigg brought forth a resolution to remove election duties from the Clerk and Recorder. This resolution has been talked about for several years. 

Public comments were heard from over one hundred people. With many more in attendance to witness the spectacle of vile and spiteful testimony. This went on for seven long and excruciating hours. 

As I sat in the audience listening to the public comments, I was so ashamed of the behavior of those speaking in opposition to the resolution. These are my neighbors who used threats, yelled, and told outright lies. The Bible quotes were thrown out over and over to attack commissioners Joe Briggs and Jim Larson. Two pastors in our community spewed hateful words. Not once did I hear these so-called church attending people speak to the call to love thy neighbor as thyself. It was like watching school yard bullies and toddler temper tantrums. Never in the 62 years that I have lived in Great Falls have I ever experienced anything like the hateful actions and words that I saw that day. I fought back tears of sadness that day for my community. 

The restraint shown by Commissioners Joe Briggs, Jim Larson and those that spoke in support of the resolution is to be commended. Supporters spoke with decorum and integrity while expressing their concerns for the election process that has been flawed since Clerk and Recorder Sandra Merchant has taken office. They stuck to the facts and kept religion and emotion out of their testimony. 

We are in need of change in Great Falls and around Montana as this type of extremist behavior spreads and basic community norms around public discussion and debate dissolve. Perhaps, the most disturbing aspect is the appeal to theocratic ideals which could not be more un-American. This country was founded on a fundamental separation between church and state, and we have upheld that value, embodied in the First Amendment to the Constitution, for almost 250 years. The opponents’ dogmatic appeal to a narrow-minded, intolerant brand of Christianity would be ridiculous if it were not so fundamentally dangerous and unconstitutional. 

There is hard work ahead for all reasonable people of goodwill in this community and across Montana to try to bring us back to a semblance of decency and behavioral norms of civility and respect necessary for the community to not only survive but thrive. “Love thy Neighbor no Exception.”

Editors Choice: Der Führer Cometh

Editors Choice: Der Führer Cometh

By: James C. Nelson, Montana Supreme Court Justice (Ret).

Have you ever thanked God that you never lived Nazi Germany? Well don’t  get off your knees just yet; you might still find out what that was like. 

Donald J. Trump is straight out of fascism’s, central casting: think Hitler (who  Trump seeks to emulate and whose speeches he quotes), Bolsonaro (whose legacy  and tactics he endorses), Orbán (who he endorses and who is the darling of the reactionary GOP and Fox News) and Putin (with whom Trump is bonded). 

If elected, Trump intends to be America’s first dictator in the mold of the  foregoing authoritarians or “strongmen.” 

Trump (along with Steven Miller, and other lickspittles and sycophants) has  openly proclaimed his plans for America if he’s elected President in 2024. Indeed,  his formal plans have names–Project 2025 and Agenda47—and come complete with  a 920-page policy book from 400+ contributors, orchestrated by the right-wing  Heritage Foundation. 

Specifically, here’s a summary of what Trump has in store for us: 

Hiring and training an army of 54,000 loyalists ready to hit the ground on  inauguration day, to be appointed to government jobs and positions vacated  when the civil service, administrative agencies, FBI, DOJ and intelligence  agencies are purged of Trump’s enemies;  

Establishing concentration camps to hold aggressively rounded-up,  unauthorized immigrants, pending their deportation by the “millions each  year;” 

Placing loyal military officers over social engineering and non-defense  matters including climate change, critical race theory, and manufactured  extremism; 

Invoking the Insurrection Act, on Trump’s first day in office, and declaring  martial law so as to use the military against political opponents and unrest and  protests on election day;

Criminally prosecuting those designated by Trump for “retribution,” and  “revenge” including President Biden and his family, Democrats, and former  cabinet, staff, military officers, and public officials deemed “disloyal” when  he was President; 

Politicizing the federal civil service and undermining laws aimed at  preventing corruption and cronyism; 

Totally controlling federal agencies that presently operate with a great deal of  independence, with all reporting directly to Trump; 

Ending separation between the White House and the DOJ that prevents  presidents from using prosecutions for political purposes; 

Dehumanizing political opponents, by, for example, referring to them as thugs  and “vermin;” 

Gutting the Justice system and firing career prosecutors; 

Gutting the National Security and Intelligence apparatus; 

Requiring local law enforcement agencies to use controversial stop and frisk  practices; 

Banning travel to and from Muslim countries;  

These plans have been openly and defiantly proclaimed by Trump. Indeed,  his vitriol and promises, coming from a candidate for the highest and most  powerful office in the free world, are without precedent. 

Trump, who gives all the appearances of being mentally deranged and  paranoid, functions on the basis of only three premises: (1) will it make me look  good?; (2) will I make money doing it?; and (3) will it allow me to seek revenge  and retribution on my enemies?. He has no concern for political norms or  customs; he has no concern for the rule of law; and he has no concern for our  Country, its citizens, its institutions, its government or its Constitution. He is a  pathological liar. He promises be judge, jury and executioner; a law unto himself  alone. He promises to be America’s dictator-in-chief. 

In the 2024 presidential election we will have two choices: vote for democracy  or vote for Trump. 

If you vote for the latter, stay on your knees and practice your one-arm salute. Sieg heil!

Editor’s Choice: Mary Moe Talks GF Elections Crisis

Editor’s Choice: Mary Moe Talks GF Elections Crisis

Mary Sheehy Moe: Foxes and doggies and frogs – Oh my!

I struggle to find the apt analogy: The dog that finally catches the bus? The frog that doesn’t notice the water is boiling? The fox in the henhouse?

All of the above swirl around the drain of what’s happening to the most fundamental of our democratic rights — the right to vote. The nationwide wave of efforts to discourage voting laps even at Montana’s shores. On the pretext of securing election integrity, Republicans continually advance bills making it harder for some populations to vote — Native Americans, college students, the homebound, people who can’t get off work or find a way into town on two different days to register and then to vote.

But now we’re seeing a new twist — relentless efforts to discredit those who run our elections and replace them with election deniers. In 2022, election deniers comprised 80% of the candidates running nationwide in secretary of state races. Half won their primaries. Only 8% ultimately won the seat. Thankfully, most voters don’t want a Fox-fed fox in their most precious henhouse.

Unfortunately, there’s more. Since late 2020, 161 chief local elections officials (40%) in 11 Western states, Montana included, left their positions. The average experience levels in those 161 offices plummeted from approximately eight years to about one. With the cybersecurity, technology and legal issues surrounding elections, experience matters. As the cross-partisan political reform group Issue One cautions, inexperienced elections officers are “more prone to making small mistakes based on lack of knowledge — mistakes that, however innocuous, may be interpreted by hyper-partisans as malicious acts.”

What those 161 offices have now isn’t a fox in the henhouse, but a dog who caught the bus. This inexperience feeds the very narrative election deniers were yipping between howled lies before the newbies were elected. You need look no farther than Great Falls, to see how alarmingly this dog don’t hunt. Since being elected clerk and recorder in 2022, the election denier there has fouled up election after election.

In May, flood and irrigation district elections were so riddled with errors that both districts have turned to the courts for resolution.

The school board election was even worse — contradictory ballot instructions, misfolded ballots hampering ballot-counting, some voters receiving two ballots, others getting none, voters who work unable to vote because the polling place opened late, signature verification hindered by the fact that ballots were separated from envelopes … in short, so many gaffes that the court appointed an election monitor to oversee the next election.

Enter June’s library levy election: miscommunication on election dates, instructions so erroneous they had to be reprinted three times, multiple ballots to the same voter; no ballots for some voters … same-new, same-new.

And in the municipal elections last week, the nightmare continued. In addition to the now-usual dysfunction, inadequate prior notice had voters reporting to the usual polling place (the fairgrounds), where they were directed to the elections office, a small space on a busy downtown street with parking at a premium. Already disgruntled, voters plugged meters and queued up to enter a room whose very décor screamed partiality.

An enlarged Corinthians quote and a big ceramic elephant dominated the counter space. The walls were filled with pithy, pick-a-fight quotations incongruously placed next to more charitable tokens. My favorite: A large wooden cross adjacent to an even larger picture of a longhorn emblazoned with the words, “Do No Harm. But Take No Bull.” Jesus would be so pleased.

These are relatively small-potatoes local elections with low voter turnout. But 2024 is just around the corner. What’s that, Kermit? Water too warm?

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