LOCAL

Montana AG: Proposed Ballot Initiative 24 legally insufficient

Proposed measure sought stringent protections for Gallatin, Madison rivers

BY BELLA BUTLER

HELENA – A ballot initiative proposed by a Bozeman-based law center that would have granted sweeping protections to parts of the Gallatin and Madison rivers was found legally insufficient in a memorandum filed on Jan. 28 by the Montana attorney general. Several Big Sky organizations filed comments in opposition to the measure, expressing concern for how it would impact development opportunity in Big Sky.

Ballot Initiative 24, proposed by Cottonwood Environmental Law Center along with Montana Rivers and the Gallatin Wildlife Association, proposed outstanding resource water designation for the section of the Madison River between Hebgen and Ennis lakes and the section of the Gallatin River between the Yellowstone National Park boundary and the Spanish Creek confluence.

An ORW designation provides the greatest protection feasible under state law, according to Montana Code Annotated. State law enacted in 1995 afforded ORW designation to state surface waters located wholly within the boundaries of national parks and wilderness areas and established a process for other state waters to be granted the same designation if they qualify based on several criteria.

The petition for the ballot initiative was submitted to Montana Secretary of State Christi Jacobsen in December. Jacobsen then referred the initiative to Attorney General Austin Knudsen on Dec. 29 for legal sufficiency review.

Knudsen issued a memorandum on Jan. 28 finding the proposed ballot measure legally insufficient on the grounds that it “could cause a regulatory taking” and “will likely cause significant material harm to one or more business interests in Montana.”

“The legal sufficiency review process is required under state law to determine if the petition complies with statutory and constitutional requirements governing submission of the proposed issue to the electors, the substantive legality of the proposed issue if approved by the voters, and whether the proposed issue constitutes an appropriation,” Emilee Cantrell, Attorney General Knudsen’s press secretary, wrote in an email to EBS. “In this instance, the proposed ballot measure does not meet the legal sufficiency requirements.”

During the legal review process, the attorney general’s office received dozens of comments on the proposed initiative, and according to Cantrell none of the comments from interested parties were in support of the measure. Several comments were sent from Big Sky organizations, notably including the Big Sky County and the Gallatin Canyon water and sewer districts, the Big Sky Community Housing Trust, and the Big Sky Chamber of Commerce. Others in opposition included the Madison County Commission, Gallatin County Commissioner Joe Skinner, the Bozeman Chamber of Commerce and the towns of Manhattan and West Yellowstone, among others.

Brad Niva, CEO of the Big Sky Chamber of Commerce, said the proposed ballot measure spurred an emergency chamber board meeting as the organization worked to understand the impact that the measure would have on the business community in Big Sky.

Niva said there were two main considerations that led the chamber to submit an oppositional letter and to make a plea to its member businesses to do the same: potential negative impacts to the Big Sky business community and a limitation

“We know this community is growing,” Niva told EBS on Feb. 4. “We saw this as a threat to continued development in Big Sky as well as a huge economic impact to the businesses that are here and who work here and just had potential to just literally turn off anything that was happening here in Big Sky.” This includes, he said, development of local affordable housing.

The Big Sky Community Housing Trust echoed this concern in its letter to the attorney general.

“While our organization has tried several creative approaches to increase the availability of housing for local workers, it is imperative that we continue to pursue the building of additional dedicated workforce housing units to support our Big Sky resort community,” the housing trust’s letter stated. “Ballot Issue #24 will likely prevent this from happening.”

Knudsen agreed.

“An ORW designation will prohibit DEQ from issuing wastewater disposal permits in the affected areas which will sharply limit development,” Knudsen wrote in his Jan. 28 memo.

The memo chronicled previous “unsuccessful efforts by the measure’s proponents to effectuate the changes they seek through the administrative and judicial process.” These efforts included a 2001 proposal to give ORW designation to the section of the Gallatin River, which Cottonwood renewed in 2018, along with a 2021 lawsuit filed against Montana DEQ by Ballot Initiative 24’s submitters that challenged the agency’s decision. The court upheld DEQ’s action in the 2021 lawsuit, according to the memo.

Montana law dictates that the DEQ may not allow a new or increased pointsource discharge that would result in a permanent change in the water quality of an outstanding resource water. Proposed Ballot Initiative 24 would have amended that language to prohibit new or increased point-source discharge that would result in a permanent or temporary change in water quality.

In a previous assessment on the potential impacts of an ORW designation on the Gallatin, the Board of Environmental Review determined an ORW designation “effectively prohibits development unless development achieves ‘zero discharge,’ into the Gallatin River system,” according to the memo. The memo also stated that “zero discharge” is not economically or technically feasible.

The Montana Constitution dictates that “private property shall not be taken or damaged for public use without just compensation.” By depriving affected property owners of all productive or economically beneficial use of their land without compensation, Knudsen found the proposed measure legally insufficient. The ballot initiative will not be qualified for the 2022 general election ballot.

When contacted for comment, Cottonwood Executive Director John Meyer declined an interview with EBS.

Resort tax board amends agreement with water and sewer district Local government entities provide updates on interlocal agreements

BY BELLA BUTLER

BIG SKY – As supply chain woes and high building costs maintain a chokehold on construction in the U.S., the Big Sky Resort Area District Board on Feb. 9 unanimously approved changes to its interlocal agreement with the Big Sky County Water and Sewer District to free up more funding opportunities for new infrastructure.

The amendment will allow the water and sewer district to apply for funding from the 3 percent resort tax collections in addition to their 1 percent for infrastructure resort tax collections awarded in 2020. Other amendments to the interlocal agreement made technical changes to conditions requiring the water and sewer district to pledge service contributions to affordable housing in exchange for funding to go toward its wastewater resource recovery facility.

The resort tax district entered an interlocal agreement with the water and sewer district in February 2020, an arrangement that awarded water and sewer $27 million from an additional 1 percent of resort tax approved by voters in May of 2020. The agreement also set forth conditions of the award.

One of the conditions barred the water and sewer district from applying for traditional resort tax funding outside of the interlocal agreement. Ron Edwards, general manager of the water and sewer district, said he requested ahead of the Feb. 9 meeting that this condition be lifted in order to allow the district to seek additional funds as project costs climb.

As the water and sewer district looks to fund additional concrete work for the new wastewater plant, which is intended to increase the district’s service capacity, Edwards said that money from the 3 percent resort tax would be one of the best potential options for partial funding. The initial bid for the additional work was $4.9 million.

The resort tax board agreed. Board Vice Chair Ciara Wolfe and Board Secretary and Treasurer Steve Johnson suggested it would be in the board’s best interest to help advance current community capital building projects toward the soonest possible completion as national construction rates continue to rise.

“I think any of our construction projects that we have in progress now, we need to finish them out,” Wolfe said during board discussion. “The construction environment is so challenging for everybody in it to have any idea what those endresult costs are going to be.”

Board Chair Sarah Blechta clarified that while lifting the condition allows the water and sewer district to apply for additional funding, the board’s vote does not guarantee that it will grant the funding. Edwards said the water and sewer district doesn’t intend to apply for funds this year. “I’m spending money in other places that could be used for [the plant upgrade],” he told EBS after the meeting.

One expenditure is related to a lawsuit brought to the district in July 2020 alleging violations to the Clean Water Act. According to Edwards, the district’s legal fees and other costs are at approximately $850,000 and are expected to increase as a trial date approaches this spring. The costs are depleting the water and sewer district’s general reserves, Edwards said.

An amendment to another condition of the agreement approved at the Feb. 9 meeting increased the number of single family equivalents the water and sewer district must allocate to workforce housing from 500 to 600 upon completion of the new infrastructure. The amendment was made to ensure the water and sewer district’s service commitment remained the same after the district established standard SFE allocation for employee housing based on unit square footage in December of 2021.

The interlocal agreement was also amended to include definitions for workforce housing, affordable housing and deed-restricted housing.

Laura Seyfang, executive director of the Big Sky Community Housing Trust, assisted members of the BSRAD board and staff in drafting these new definitions and believes they will help all stakeholders operate under the same parameters.

“As we’re excited to see more developers wanting to actually create some workforce housing, we felt we really had to clarify what does it mean to make something workforce housing?” Seyfang told EBS after the meeting. “What does it mean for it to be affordable?”

The amended interlocal agreement defines workforce housing as “housing properties and housing projects that are restricted to tenants or owners who demonstrate full-time employment (annual average of 30 hours per week) with a business entity registered and operating within the [resort area district],” and affordable housing as “housing properties that are made available to qualified occupants (tenant or owner) at a rate for housing (mortgage or rent, plus taxes, and insurance) that is less than or equal to 33% of adjusted [area median income].”

Starting last year, BSRAD also entered into interlocal agreements with what it calls government entities which include the Big Sky Fire District; the Big Sky Transportation District; the Gallatin Canyon Water and Sewer District; and the Gallatin County Sheriff’s Office. These agreements allow the agencies to apply for resort tax funding for operational costs on a three-year basis as opposed to a oneyear basis like other applicants are required to do.

All entities except the sheriff’s office provided annual updates and disclosed any changes to their three-year contract and requested funding. The canyon water and sewer district, who’s three-year contract awards them $74,000 in resort tax funding per year, indicated a need for additional funding. No entities requested additional funding at the meeting.

Morningstar will close Fridays due to staffing crisis Community members struggle to balance child care and work

BY GABRIELLE GASSER

BIG SKY – Due to staffing issues, Morningstar Learning Center will be closing its doors on Fridays starting the week of Feb. 7. Now, parents are struggling to compensate for the lost day of child care.

Morningstar announced that it would close on Fridays after a Jan. 25 Zoom meeting where Morningstar board members, staff and parents discussed several possible solutions including a lottery system or parents voluntarily pulling their kids out of daycare. Meeting participants agreed that closing the daycare’s doors one day a week was the best solution, and a subsequent survey yielded majority favor for closing Fridays.

Morningstar Executive Director Mariel Butan said the plan is to operate Monday through Thursday until the end of spring quarter on May 31 or until they can hire enough teachers to reopen for five days.

“No one is like ‘Oh good, we found a good solution now we can relax,’” Butan said. “Now we, if anything, have one extra administrative day in the week, to be just consistently at the grind and trying to find [more staff.]”

Morningstar has been trying to hire new teachers for a long time, and, according to Butan, the biggest obstacle is usually housing. Leading up to the schedule change, Morningstar was asking parents to voluntarily unenroll their kids if they didn’t absolutely need child care that day in an attempt to keep its doors open five days a week.

“This is obviously a big deal, and it has ripple effects throughout the community,” Butan said.

One local mother of three and a nurse at the Big Sky Medical Center clinic Brittany Marvin said this change means she will eventually have to stop working on Fridays.

“Now the clinic is going to have one less nurse available to work,” Marvin said, “putting a lot more pressure on the other employees, and then decreasing patient care and availability.”

For now, Morningstar is stuck in a holding pattern until the facility can hire more staff, according to Butan.

It can be easy to get discouraged, Butan says, suggesting that the Big Sky community needs to keep working to solve these problems.

“We have to keep working towards [a solution] today so that maybe we have a solution in a year or two years or whatever it is,” she said, “but it’s going to take that continued effort, which is a really heavy burden for everybody.”

Children at Morningstar Learning Center play outside in the snow. PHOTO BY LESLIE AMMONS

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Big Sky, MT 59716 USA 406.995.3670 bigskybuild.com