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Montana Mining Association v. State

Supreme Court of Montana

June 19, 2018

MONTANA MINING ASSOCIATION, Petitioner,
v.
THE STATE OF MONTANA, by and through TIMOTHY C. FOX, in his official capacity as Attorney General, and COREY STAPLETON, in his official capacity as Secretary of State, Respondents.

         ORIGINAL PROCEEDING: Initiative 186

          For Petitioner: William W. Mercer, Brianne C. McClafferty, Holland & Hart LLP, Billings, Montana

          For Respondents: Timothy C. Fox, Montana Attorney General, Jon Bennion, Chief Deputy Attorney General, Stuart Segrest, Assistant Attorney General, Helena, Montana

          For Amicus Curiae: Thomas Schoenleben, Jonathan Motl, Bitterroot Law, Hamilton, Montana (Attorneys for YES for Responsible Mining)

          OPINION AND ORDER

          LAURIE MCKINNON JUSTICE

         ¶1 The Montana Mining Association (MMA) challenges the Attorney General's determination that Initiative 186 (I-186) is legally sufficient in an original proceeding before this Court. This Court has "original jurisdiction to review . . . the attorney general's legal sufficiency determination in an action brought pursuant to 13-27-316." Section 3-2-202(3)(a), MCA. We conclude this proceeding is properly before this Court and exercise our original jurisdiction.

         ¶2 If enacted, I-186 would change the mine permitting process by adding a requirement to mines' reclamation plans. I-186 proposes amendments to §§ 82-4-336 and -351, MCA, and would prohibit new hard-rock mines' reclamation plans from requiring perpetual treatment of polluted water. MMA challenges I-186 on the basis that it violates § 13-27-105, MCA, which requires that an initiative issue delegating rulemaking authority be "effective no sooner than October 1 following approval." We deny MMA's request to overrule the Attorney General's legal-sufficiency determination and address the following issue:

If a proposed initiative potentially delegates rulemaking authority, is the initiative's effective date part of the Attorney General's legal-sufficiency review?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 In February 2018, I-186's proponents (Proponents) submitted Ballot Initiative No. 12 (BI-12) to the Secretary of State and the Legislative Services Division for review. Legislative Services responded with comments and a revised draft. Some of Legislative Services' concerns regarded BI-12's use of terms such as "perpetual treatment, " noting that BI-12 did not provide definitions. Proponents responded, accepting certain revisions and commenting on Legislative Services' suggestions. To clarify what treatment activities would constitute "perpetual treatment, " Proponents added the term "perpetual leaching" and noted "that any further definition, if needed, is within the scope of agency rulemaking."

         ¶4 In April 2018, Proponents submitted a draft of Ballot Initiative No. 14 (BI-14) to Legislative Services, which was substantially similar to BI-12. Legislative Services responded, providing specific comments and revisions to BI-14, but also referring proponents to Legislative Services' previous comments regarding BI-12. Proponents subsequently submitted BI-14 to the Attorney General for a legal-sufficiency review pursuant to § 13-27-312, MCA. The Attorney General made slight revisions, determined the initiative was legally sufficient, and named the proposed ballot initiative I-186. Proponents began the signature-gathering process.

         ¶5 I-186 offers amendments to §§ 82-4-336 and -351, MCA, and provides that the changes would be "effective upon approval by the electorate." Specifically, I-186 would add a new subsection (13) to § 82-4-336, MCA, providing:

(a) The reclamation plan must contain measures sufficient to prevent the pollution of water without the need for perpetual treatment.
(b) For purposes of this subsection (13), the term "perpetual treatment" includes activities necessary to treat acid mine drainage or perpetual leaching of contaminants, ...

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