Montana guts a green law

MUSSELSHELL, Mont. - Rancher Pat Goffena wants to start a commercial bird-hunting range along the Musselshell River northeast of Billings. He would release ring-necked pheasants, quail, chukar and Hungarian partridge from pens onto a 1,280-acre site for hunters to stalk and shoot.

But some of his neighbors in this 100-person town are less than excited about the proposal. Wayne Brillhart's house and barn are nearby and he runs livestock in an adjacent pasture. He worries about hunters shooting onto his property, even if it's unintentional.

"People who don't know where they are in the shooting range won't know if they're close to the boundaries," says Brillhart. "I think it's a train wreck waiting to happen."

The Montana Department of Fish, Wildlife and Parks is also concerned. In the agency's environmental assessment, it reports the proposal would trigger "potentially significant" impacts on wild bird populations and "presents significant safety issues to townspeople from gunfire." Furthermore, the proposed shooting site is crossed by two highways, bordered on one side by a county road and in shouting distance of a school bus stop.

But public officials say they are hampered when trying to protect public safety. Due to legislative changes made this year to the 1971 Montana Environmental Policy Act, commonly known as MEPA, regulators can no longer attach non-statutory conditions to environmental permits for anything from timber sales to subdivisions. Now, agencies are restricted to mitigation measures that are already specified in other state laws.

"You can't really condition a permit unless the applicant agrees" or the proposed condition is authorized by the code book, says Tim Feldner, the state's game-farm licensing coordinator. "We're just hoping we can get (Goffena's) cooperation and get some of these changes."

Backlash

Attacks on the state's bedrock environmental laws have been increasingly common in recent years as industrial and development interests have been stymied by the law. As part of a flurry of regulatory rollbacks, the Montana State Legislature, spurred by Republican Gov. Judy Martz, approved a handful of bills this spring that significantly undermine MEPA's authority. The most damaging was House Bill 473, sponsored by House Majority Whip Cindy Younkin, R-Bozeman. It designates MEPA as a solely procedural statute (HCN, 3/26/01: Republicans undermine a bedrock environmental law); that means state agencies can't request environmental safeguards unless they're backed by existing laws.

Despite opposition from conservation leaders and moderate lawmakers, the measure passed on party-line votes held by Republican majorities. The action is seen by many observers as part of a larger backlash against Montana conservationists, who have been adept at challenging state agency decisions in the courts, especially over logging and mining issues.

Younkin says the changes were needed to reign in regulators who issued mitigation requirements that went beyond past legislative intent. "It boils down to whether MEPA should dictate an action or a process," she testified at a hearing on her bill.

The economy also played a role. Montana Senate Majority Leader Fred Thomas, R-Stevensville, claimed that Wyoming and other states in the West without similar environmental laws have flourishing resource-extraction economies * unlike Montana.

"The question is whether you want this state to move forward or not," Thomas said during floor debate on Younkin's bill. "I think (MEPA) is a closed door to this state. We need to open the door and let this process work."

Gov. Martz says expanded resource extraction and new electrical generating plants will salvage Montana's economy.

"You did the right thing, girl," Martz told Younkin before a cheering crowd of GOP supporters last June. "It's too bad we can't get rid of it (MEPA)."

A shredded umbrella

Conservationists say Montana has big cracks in the laws that protect the public and the environment from harm. Under Younkin's bill, MEPA can no longer be used to fill those gaps.

"The impacts are going to show up in the strangest places because MEPA's always been used as an umbrella," says Jeff Barber of the Montana Environmental Information Center. "We can find all the adverse impacts we want, but it doesn't matter anymore, because we can't do anything about it at the state level."

Instead, citizens like Brillhart, who are upset about development, will have to sue to see their concerns considered. Ironically, more lawsuits is "what (pro-industry legislators and their backers) were trying to avoid in the first place," says Anne Hedges, also with the Environmental Information Center. "You can't ignore the Constitution, and the Legislature likes to. They're like a little kid. They squeeze their eyes shut and think it's going away."

Goffena's proposed hunting range is relatively small potatoes. As angst over energy affordability and supply grips pockets of the nation, conservationists predict MEPA's neutering will be strongly noticed all across the Big Sky state.

"What we're looking at is energy development on the scale of the coal boom of the 1970s," says Barber. "Without the state's bedrock environmental laws to help manage it."

Ron Selden writes from Helena, Montana.

YOU CAN CONTACT ...

• Montana Department of Fish, Wildlife and Parks, Deputy Director Chris Smith, 1420 E. Sixth Ave., Helena, MT 59620, 406/444-3186, www.fwp.state.mt.us;
• Montana Environmental Information Center, P.O. Box 1184, Helena, MT 59624; 406/443-2520; www.meic.org;
• Montana Conservation Voters, P.O. Box 63, Billings, MT 59103; 406/254-1593; www.mtvoters.org.

Copyright © 2001 HCN and Ron Selden

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