River protection measure would erode our state’s Constitution

June 16, 2022 11:57 am

The Madison River near Ennis, Montana (Photo via Flickr | CC-BY-SA 2.0).

Shortly after celebrating the 50 year anniversary of Montana’s Constitution, a proposed ballot measure appears to be an attempt to cast it aside.

Backers of I-191 seek voter approval to designate the Gallatin and Madison River watersheds as Outstanding Resource Waters, a protected status only found in national parks and wilderness. In doing so, I-191 circumvents the economic protections afforded to Montanans by our Constitution and sets a dangerous precedent for the future.

While legislative bodies have authority to levy taxes and appropriate new spending, regulators can also “spend” taxpayer dollars by imposing regulations that cost property owners dearly to comply with. Montana’s Constitution accounts for this by guaranteeing property owners the due process of law in regulatory proceedings and just compensation before a “regulatory taking” – when government actions result in the owner’s property interest being taken or damaged.

Thanks to these important protections, Montana state agencies have rigorous processes in place to afford due process and ensure policy decisions are constitutionally and economically sound. For instance, the law requires all state agencies to conduct a thorough assessment of how each regulation impacts property owners prior to implementation.

I-191 bypasses constitutional protections to impose the will of a well-connected Bozeman based law firm backing the proposal. The proposal has already been twice rejected by the state Board of Environmental Review, which concluded that it would result in a significant regulatory taking, not to mention be practically and economically unfeasible. Attorney General Austin Knudsen echoed BER’s findings when he found I-191 legally insufficient, saying the proposal “unquestionably” causes a regulatory taking without providing just compensation. After failing to convince regulators to approve their proposal, I-191 backers are now betting they can convince voters to do their bidding.

Montanans can only guess at the consequences to the state if I-191 passes. Unlike when this proposal was previously submitted to regulators, this time there will be no environmental impact statement, no social or economic impact review and no state or local government consultation. If the 2007 impact statement from the Department of Environmental Quality is any guide, Montanans can expect I-191 to destroy economic activity in Gallatin County. DEQ estimated the proposal would reduce the residential development allowed in Big Sky by 89% and commercial development by 99%. Local jobs in construction, real estate, transportation, and local government would be lost. Affordable workforce housing projects, so desperately needed, would be shut down.

A vast coalition of groups has lined up to oppose I-191, again predicting detrimental effects to the local economy, property owners and environmental restoration. Another common theme brought up by many is the harm done to the robust collaborative process currently in place with the regulating agencies. Numerous local outdoor and conservation groups have worked tirelessly for years collaborating with these agencies on river access and restoration projects. Now they worry these projects will be destroyed by I-191, science and local input be damned.

The precedent set by I-191 could open pandora’s box for harmful regulations imposed by controversial activist groups with out-of-state big-money backing. Any radical group with enough money to influence voters might simply choose to sidestep normal regulatory procedure to impose costly regulations via the initiative process, depriving Montanans of the economic protections owed to them by our Constitution.

The Montana Constitution’s guaranteed economic protections are foundational to our way of life, shielding Montanans from radical, big-moneyed influences and ensuring local collaboration around state policy decisions. By circumventing Montana’s Constitution, I-191 erodes these important economic protections. If anything, we should be adding more emphasis on the economic and societal impacts of regulations, not less.

Kendall Cotton is president and CEO of the Frontier Institute, a think tank dedicated to breaking down government barriers so all Montanans can thrive.

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