All 100 delegates to Montana Constitutional Convention met at the Capitol in Helena on March 22, 1972 to sign off on the new state Constitution that they had spent months researching, writing, debating, and negotiating. It was due to be ratified by the voters on June 6, 1972. Montana Free Press presents a series this week exploring the history, legacy, influence, and future of the state Constitution to mark the 50th anniversary since the document was adopted by the delegates. Today:
Article II, Section 3 Section3: All persons are born free, and all have certain inalienable right. These include the right of living in a clean, healthy environment, the right of pursuing their basic needs, enjoying and protecting their freedoms, acquiring, possessing, and protecting their property, as well as the right to seek their safety and happiness in all legal avenues. All people recognize their corresponding responsibilities when they enjoy these rights.
Although it may seem unlikely, when attitudes towards overarching environmental concerns such as climate change align along reliably political fault lines, many of our country’s foundational environmental protections enjoyed broad bipartisan support during the time that Republican President Richard Nixon was in office, it is not surprising that there was widespread bipartisan support for them. The landmark laws such as the Endangered Species Act, and the National Environmental Policy Act were approved unanimously by the U.S. Senate in the late 1960s and early 70s. These measures received yes votes from more that 95% of U.S. House lawmakers. These and other environmental laws received near universal support. This was evident when 100 Montana delegate met in Helena in 1972 for the Constitutional Convention.
It was during this time that many of the western Montana rivers, such as the Clark Fork, were contaminated by heavy metals from industrial mining.Clear, terraced cuts On the Bitterroot National Forest they were very popular, and the air in Missoula was so polluted that Mount Sentinel was often obscured from the city. The 1889 Constitution was drafted under the direction of Butte, a copper baron. It enshrines a new approach to environmental conservation. William A. Clark is a pollution apologistBob Campbell and Mae Nan Ellingson were both thinking about this when they spoke of the convention. They are two convention delegates from Missoula.
Campbell and Ellingson also championed environmental protections. They were also the primary authors of Constitutions poetic preamble. This is a portrait depicting the extraordinary backdrop against the which delegates prioritized their values and their hopes for future generations.
We, Montanans, are grateful to God for the peaceful beauty of Montana, the grandeur and grandeur of its mountains, and long to increase the quality of life and equality of opportunity.
Montana Free Press interviewed legal scholars and environmental activists to better understand the impact of key Montana Constitution provisions on the environment and natural resource provision.
Article IX Section 1, Part 1 Each person and the state must maintain and improve Montana’s health for all future generations.
During the Constitutional Convention, there was much debate about the inclusion of clean and healthful language in both the Constitutions Unalienable Rights and Environmental Rights and Natural Resources articles. Michelle Bryan, a University of Montana professor who specializes in environmental, natural resource, and water law, said that delegates debated whether environmental protections would get strengthened or weakened by the adjectives.
Delegate Campbell claimed that providing an environment for future generations would not be enough. He preferred stronger language. He preferred stronger language.
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Is Montana’s progressive state Constitution in crisis at 50?
On March 22, 1972, 100 delegates of the Montana Constitutional Convention gathered in Helena at the Capitol to sign a new state Constitution. They had spent months researching, negotiating, debating and writing it. The Constitution would be ratified on June 6, 1972 by the voters. Montana Free Press has published a series this week exploring the history, legacy, influence, and future of the state Constitution to mark the 50th anniversary of its adoption by the delegates. Today: Montana’s progressive state Constitution is facing a conservative midlife crisis as it turns fifty.
Montana’s Right To Know still works fifty years later.
The delegates sought to fill a significant gap in the Montana constitution’s previous version by debating it and drafting it. This section is found in Article 2, Section 9. It provides a way to prevent government opacity.
Montana’s long road towards Indian Education for All
1972 saw the first attempt by Constitutional Convention delegates and tribal activists to secure space for Indigenous cultural integrity within the new state Constitutions article about education. Half a century later court battles and curriculum design have made little progress, but the fight for Indian Education for All in public school systems continues.
Bryan noted that Montana courts had to wait a while before they really looked into the new right and added legal flesh. Bryan also noted the fact that litigants have raised this right in arguments more often than courts have cited in decisions. Bryan describes a pivotal 1999 Montana Supreme Courts decision as being crucial in its interpretation. Montana Environmental Law Center v. Montana Department of Environmental Quality It has been established that the judiciary branch doesn’t need to wait for environmental harm to occur before attempting to prevent it.
In 1995, a trio of environmental nonprofits were concerned about DEQ’s approval of an exploration permit to open-pit a gold mine in the upper Blackfoot River Valley. The Clark Fork-Pend Oreille Coalition, Montana Environmental Information Center, and Womens Voices for the Earth were the plaintiffs. They objected to the agency’s decision to amend a mineral exploratory license to allow the exploration company, which is high in zinc and arsenic, to discharge groundwater into the shallow aquifers that feed the Blackfoot and Landers Fork Rivers. DEQ had recently passed a law that allowed groundwater to be discharged as long as it was within a groundwater mixing area.
The state Supreme Court referenced the Constitutional Convention transcripts to gain insight into the delegates’ clean and healthy intentions and the Legislature’s obligation to provide adequate remedies for the prevention of unreasonable depletion or degradation of natural resources. This record provided evidence, which the justices wrote in 1999, that the delegates did not intend only to prohibit environmental degradation that can clearly be linked to ill or physical endangerment. The constitution does not require that dead fish remain on the waters of streams and rivers of the state before its farsighted environmental protections may be invoked.
More recent Montana Supreme Court decisionAlso, the discussion includes DEQs issuance an exploratory drilling permis to Lucky Minerals, a Canadian mining firm.
The Montana Environmental Policy Act was amended in 2011 to clarify that permits, licenses, leases, or authorizations issued by agencies are valid and cannot be revoked, modified, or suspended while an environmental review is completed. The new law allows permitted projects to continue even when they are challenged in court.
In Lucky Minerals, the state Supreme Court ruled in favor of plaintiffs Park County Environmental Council (and Greater Yellowstone Coalition) DEQ failed to examine how the proposed mining operation in Paradise Valley could impact wildlife, groundwater, and streams. The 2011 MEPA Amendment was also considered by the courts. The plaintiffs argued Lucky Minerals should not have been allowed to continue drilling operations under its exploration license, while court-ordered studies of environmental impact were being performed. This would make it difficult to find any possible remedies to repair damages already caused. Plaintiffs claimed that it would have violated the plaintiffs’ right to a healthy environment and prevented them from participating in government proceedings. Constitutionally protected right.
The court agreed and declared unconstitutional the 2011 MEPA Amendment.
The 2011 Amendments permit Lucky to start this work before DEQ completes supplemental reviews. A review that is unlikely to accomplish much beyond informing Montanans possibly tragically of the results of the actions that were already taken, the courts ruling stated. Only a remedy. AfterA violation is a hollow vindication for constitutional rights if there has been an irreversible harm.
Who is going to advocate this sense of intergenerational fairness? It’s often overlooked, but it becomes an extremely important issue when you have to deal with the destruction and disintegration of functioning atmospheres.
Kalispell attorney Roger Sullivan
An active lawsuit challenges the state’s approach towards energy permitting. This lawsuit also challenges the right to a clean, healthy environment. Held v. State of Montana is a lawsuit brought by 16 youth plaintiffs. They claim that the state favors a fossil fuel-based energy system that causes dangerous levels of greenhouse gas emissions and contributes to climate chaos. The lawsuit Filed March 2020The plaintiff claims that preferential positions violate her constitutional rights to a clean, healthy environment and to seek safety and health. It mentions, among other laws and policy, the State Energy Policy and a 2011 law that prohibits state agencies from considering climate change under Montana Environmental Policy Act.
Roger Sullivan, one the lawyers litigating the case, stated that his clients’ claims are further strengthened by the delegates explicit inclusion in the Constitution of future generations. Sullivan said that this language is why he believes the case stands out from similar cases filed in other states. In coordination with Our Childrens Climate Trust, a non-profit that provides legal services to youth who are interested in judicial solutions for climate threats.
Who is going to advocate this sense of intergenerational fairness? It is often overlooked, but it becomes a very serious issue when you are dealing with the destruction or functioning of an atmosphere. Sullivan explained to MTFP. It involves these provisions [of the Constitution]Very, very explicit.
Article IX, Section 3. All waters, whether they are underground, flood, or surface, within the state’s boundaries, are the property and right of the state. They can be appropriated for their benefit as provided by law.
The Constitutional Convention was a significant moment in American West water law history. According to a 2006 report on stream accessibility in MontanaThe University of Montanas Public Policy Research Institute prepared the language for the delegates. They were concerned that the waters of the United States were at risk of being entirely taken by downstream states and by the federal government. Article IX, Section 3 was based upon lawsuits in Colorado, Wyoming, and other states that were facing similar problems. One delegate expressed concern about the inclusion of the phrase for its people. She feared that it would weaken private property rights. A compromise amendment was introduced to strike the language. Another delegate said, I don’t think that we want to get into a recreation access situation in the Constitution. He maintained that the provision was intended simply to establish that this is Montana-owned water and that it should be kept for Montana.
The landmark lawsuit that established public access to Montana’s waterways is known by the Curran case. It was decided in 1984. Michael Curran, founder of Dearborn Ranch, had blocked public access for Dearborn River stretches that ran through land he owned and leased from the state. Butte sportmen were frustrated by Curran’s interference while they were recreating on Dearborn. They filed a lawsuit claiming that they and other members the public had the right to float and fish in the river.
Bozeman Constitutional attorney Jim Goetz and environmental lawyer Jim Goetz secured favorable decisions in district court for the Montana Coalition for Stream Access. Curran appealed the decision at the Montana Supreme Court. The court referred to Article IX, Section 3 in its decision. The court ruled the Constitution and the Public Trust Doc, a centuries old doctrine, that states held navigable waterways in trust to the public benefit and their use did not allow any private party to interfere with recreational use of the water.
This ruling led to the following: The Montana Supreme Court issued a similar decisionThe Beaverhead River was also involved in the same year, as was Lowell Hildreth, another access-restricted landowner. Montana is home to the most progressive state in the nation. [stream access]Goetz stated that law exists in the country.
Bryan, a UM law professor, said that stream access is made unique in Montana by the way it’s applied relative to other States.
We have a more liberal approach to the public trust doctrine, she stated, explaining that in some States, private landowners own streambeds of unnavigable waterways. Montana’s waterways, even those that are considered non-navigable, the smaller ones, are generally held in trust for public access. This means that the public can use them as long as they are recreationally supported by the state.
Notable is also the work of Montana’s Legislatures on stream access. The 1985 Curran decision was followed by the Montana Stream Access Law. The law codified the public’s right to use streams, their banks, and beds up to the high water mark. It also made it explicit legal for recreationists, including those who moor boats, camp overnight, and place seasonal duck blinds while recreating on the surface waters. Some restrictions may apply).
A 2009 lawThe river access was further strengthened by a declaration that bridges and county roads are open to the public for recreational purposes. It also provided a pathway for public access to areas where fences prevent bridge use. Montana Fish, Wildlife and Parks coordinates with affected landowners and county officials in order to create public passage around or through fences.
Bozeman-based Public Land Water Access Association shares Goetz’s assessment of the state of Montana. This law is arguably the most important in the country in terms of ensuring public accessibilityThe nonprofit has been sued multiple times to protect this right. One of those lawsuits became a decade-long battle to determine whether James Cox Kennedy, landowner, could legally install electric fences and barriers along bridge abutments that block public access to the Ruby River in southwest Montana. Kennedy had argued the public access to the stream was a taking.
The Montana Supreme Court disagreedThe court ruled in 2014 that the public could use county-owned river bridges to access the river via easements extending five feet downstream from the bridges and upstream. Justice Michael Wheat stated in the decision that Kennedy’s argument for a compensable interest in property has not been made and that we should reverse our precedent to disrupt long-established constitutional law.
INFLUENCE OF RIGHT-TO-KNOW AND RIGHT-TO-PARTICIPATE PROVISIONS
Legal scholars, attorneys, and environmental advocates all point out that Montana’s environmental rights are supported by other rights in the 1972 Constitution that don’t have obvious connections to public access, the condition of the state’s land, water, and wildlife. They include the right not to be informed and the right not to be oblivious to the inner workings state government and the Legislature.
Anne Hedges, director of policy & legislative affairs at Montana Environmental Information Centers, said that these provisions make Montana government accessible, especially when compared to the federal government or other states.
She stated that it is impossible to have a conversation about a healthy and clean environment without having access to the government’s decisions as well as documents detailing why they made them. It’s essential.
Without accessing the documents and decisions of the government, it is impossible to have a conversation about a clean environment. It’s essential.
Anne Hedges, director, policy and legislative affairs, Montana Environmental Information Center
Hedges was commenting upon something that Sullivan (the attorney in the youth climate change case) also noted: that the Constitution is both a set of enforceable rights and a kind a presence with influence that extends to all branches and citizens of the states.
It is difficult to explain how this has made its way into Montana’s political culture over the past 50 years. But, Sullivan said.
Sullivan was with his 15-year old granddaughter when he was contacted about this story. He expressed his hope that his generation will recognize the intergenerational obligation outlined in the Montana Constitution and respond to its implicit call.
[Its my hope]We leave her a functioning environment [with]He stated that clean water, unpolluted and functioning air are essential for her to fulfill her responsibility to the next generation.