Montana
Judge overturns water rights decision for proposed Montana subdivision | Nebraska Examiner
A district court judge in Broadwater County, east of Helena, Montana, handed a victory to a group of water rights holders and landowners on the east side of Canyon Ferry Reservoir in a decision the plaintiffs say could have broad impacts on water rights and subdivision development in the state.
District Court Judge Michael McMahon’s 85-page order issued last week is sharply critical of Broadwater County commissioners and the Department of Natural Resources and Conservation.
McMahon hit the county for its preliminary approval of the Horse Creek Hills subdivision, proposed by developer 71 Ranch, despite an environmental assessment that failed to account for multiple water and natural resources impacts, and the Natural Resources Department for what he said was the department’s ignoring Supreme Court precedent surrounding water rights exemptions for subdivisions.
“The economic impetus to develop land is overwhelming and relentless. If there is going to be any check on uncontrolled development of Montana’s limited water resources it will have to come from DNRC which is statutorily charged with fulfilling Montanans’ constitutional right to ‘control, and regulation of water rights,’ … a duty DNRC has manifestly avoided or undermined for over a decade to the detriment of our waters, environment, and senior water rights holders whose protection is the ‘core purpose’ of the Water Rights Act,” McMahon wrote in his decision.
Water advocacy organization Upper Missouri Waterkeeper and a group of residents living close to the proposed subdivision in August 2022 challenged Broadwater County’s approval of a preliminary plat for the House Creek Hills subdivision made a month earlier, as well as the DNRC’s approval of the project to move forward as four separate phases that allowed each phase its own exempt well instead of the full project having one exempt well — a scheme the judge found could lead to a limitless number of non-permitted wells in Montana.
Vicki Sullivan, a resident whose comments to the county were cited multiple times by McMahon to underscore how citizens led the effort to rightfully oppose the determinations surrounding the project, said the win was a victory for people living nearby but also for all Montanans opposed to sprawling new developments taking up water resources.
“Montana citizens now have a clear roadmap for holding their local decision-makers and state agencies accountable, ensure they consider public and community comments, proactively identify negative impacts related to new sprawl development, and deny new subdivisions that do not have adequate water supplies,” she said in a statement.
The proposed subdivision is on the east side of Canyon Ferry where Lower Confederate Creek runs into the reservoir, and involves subdividing 442 acres of land into 39 residential, two commercial and one open space lot – built out in four phases, with each lot served by an exempt well, septic and stormwater system.
The DNRC signed off on water exemptions that allowed each of the four phases of the proposal an appropriation of up to 10 acre-feet per year for a total of more than 13 million gallons across all four phases, according to court filings.
When it came time for the county to consider the proposed subdivision, it went back and forth between commissioners and the county planning board. Several locals, including some of the plaintiffs in the case, objected to both the process and the lack of information about water quantity and quality, or impacts to wildlife or nearby landowners.
McMahon found the county was “bending over backwards” to allow the ranch owners multiple opportunities to correct errors in its application and found that the materials were not organized or clear enough for the public to understand and comment on, in violation of the law.
He found the environmental assessment for the proposal, as well as the review of the impact to water users close to the proposed development, did not include information about impacts required by law, nor did it consider decreasing water abundance on Confederate Creek.
“The environmental assessment includes only the barest information about water resources; omits necessary information about waters’ health and interaction; fails to consider the impact of exempt wells; and arbitrarily limits its analysis to only the property itself and not neighboring landowners and waters,” MacMahon wrote.
McMahon’s opinion says when residents raised these numerous concerns, the county ignored them and did not provide the court records of some of the most serious issues with the proposal that were raised.
“Ignoring numerous specific, documentable, and clearly defined impacts is arbitrary and unlawful when statute requires that the county review them,” McMahon wrote.
He said the county, in violation of the law, failed to review whether there was sufficient water for the proposal.
McMahon also found that the DNRC wrongfully used an internal memo for its legal guidance in determining when it can allow groundwater development without considering impacts for existing water rights holders — instead of a Supreme Court decision surrounding the definition of combined appropriations.
“DNRC blatantly ignores a recent Supreme Court holding, which the letter demonstrates that DNRC understands, to conclude that each of the four phases of one larger project are entitled to exempt wells,” he wrote. “This is contrary to the administrative rule, statute, the rulings of this and the Montana Supreme Court, and perhaps most troubling, DNRC’s own restatement of the law in the letters.”
He said the DNRC’s claim it had only limited information at the time that the four phases would be one project was not plausible and suggested that like the county, “DNRC insists on doing 71 Ranch’s job.”
He said it was “blackletter law” that multi-phase developments are one combined appropriation, and that if the DNRC used its own interpretation, it “allows projects with an infinite number of exempt wells so long as they are developed in small enough sequential phases, a decision DNRC’s interpretation places entirely in the hands of the developer.”
McMahon put a section in bold in his opinion, stating that he wanted to make his ruling “absolutely clear” because the exempt well law “seems a particular challenge” for the department.
“There is no basis in law for DNRC to treat the four phases of 71 Ranch’s subdivision project separately, a conclusion which is absolutely clear from statute, administrative rule, Montana Supreme Court precedent, and even DNRC’s letters in this matter. Any and all phases of this project are one single combined appropriation,” he wrote.
McMahon said that DNRC’s efforts to evade the Supreme Court’s ruling were “limitless” and that the department “flagrantly ignores it in practice.”
“DNRC gives the distinct impression of a misbehaving child who knows how to say the right words to end the chastisement and yet immediate(ly) returns to the proscribed behavior once out of view,” McMahon wrote.
He said he worried that in a decade, district courts will be reviewing similar approved applications for separate projects sited next to each other that are being built by one developer through shell companies.
McMahon also noted that eight years ago, there were an estimated 113,000 exempt appropriations, with up to 78,000 more by 2020. Doing the math, McMahon said, the exemptions could lead to billions of gallons of water being used with no permit required.
“With DNRC going out of its way for decades to conclude that such wells are virtually never combined appropriations, each well is entitled to appropriate 10-acre feet per year, totaling 1.2-to-1.9-million-acre feet, or 417-622 billion gallons of water each and every year,” he wrote. “Each additional year adding 3,000 exempt wells entitles their owners to an additional 9 billion gallons of water each year. At this rate, in less than 50 years exempt wells will be entitled to draw a trillion gallons of water each and every year.”
A spokesperson for the DNRC and Broadwater County Attorney Cory Swanson both said Friday they were reviewing the order to fully understand the implications before speaking further or making any next moves. An attorney representing the ranch did not immediately respond to an email on Friday seeking comment and asking about a possible appeal.
Guy Alsentzer, an attorney for the plaintiffs, called McMahon’s decision a “landmark judgment.”
“This victory is not only a vindication of the rights of citizens to lawful, science-based decision-making and accountable government in the face of unrelenting development pressure, but importantly, this landmark judgment also recognizes the incredible determination and grit of individual citizens who – for nearly two years – tirelessly showed up to hold their elected leaders and bureaucracy accountable to protect their water, their treasured farms and ranches, their wildlife, and their western way of life,” Alsentzer said in a statement.
This article first appeared in the Daily Montanan, a sister site of the Nebraska Examiner in the States Newsroom network.
Montana
An influx of outsiders and money turns Montana Republican, culminating in a Senate triumph
BILLINGS, Mont. (AP) — Democrats’ crushing loss in Montana’s nationally important U.S. Senate race settled a fierce political debate over whether a surge of newcomers in the past decade favored Republicans — and if one of the new arrivals could even take high office.
Voters answered both questions with an emphatic “yes” with Tim Sheehy’s defeat of three-term Democratic Sen. Jon Tester, helping deliver a GOP Senate majority and laying bare a drastic cultural shift in a state that long prided itself on electing home-grown candidates based on personal qualifications, not party affiliation.
It’s the first time in almost a century that one party totally dominates in Montana. Corporations and mining barons known as the Copper Kings once had a corrupt chokehold on the state’s politics, and an aversion to outsiders that arose from those times has faded, replaced by a partisan fervor that Republicans capitalized on during the election.
Tester, a moderate lawmaker and third-generation grain farmer from humble Big Sandy, Montana, lost to wealthy aerospace entrepreneur Sheehy, a staunch supporter of President-elect Donald Trump who arrived in Montana 10 years ago and bought a house in the ritzy resort community of Big Sky.
“The political culture in Montana has changed fundamentally over the past 10 to 15 years,” said University of Montana history professor Jeff Wiltse. “The us vs. them, Montanans vs. outsiders mentality that has a long history in Montana has significantly weakened.”
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The state’s old instinct for choosing its own, regardless of party, gave way to larger trends that began more than a decade ago and accelerated during the pandemic.
Job opportunities in mining, logging and railroad work — once core Democratic constituencies — dried up. Newcomers, many drawn by the state’s natural social distancing, came in droves — with almost 52,000 new arrivals since 2020. That’s almost as many as the entire prior decade, according to U.S. Census data. As the population changed, national issues such as immigration and gender identity came to dominate political attention, distracting from local issues.
The 2024 Senate race brought a record-setting flood of outside money on both sides — more than $315 million, much of it from shadowy groups with wealthy donors. That effectively erased Montana’s efforts over more than a century to limit corporate cash in politics.
Sheehy’s win came after the party ran the table in recent Montana elections where voters installed other wealthy Republicans including Gov. Greg Gianforte, U.S. Sen. Steve Daines and U.S. Rep.-elect Troy Downing.
Daines is the only one of the group originally from Montana — once a virtual requirement for gaining high office in the state.
Apple-flavored whiskey and Champagne
The contrast between Montana’s old and new politics was on vivid display on election night. Tester’s party was a sedate event at the Best Western Inn in Great Falls — rooms for $142 a night — where the lawmaker mingled with a few dozen supporters and sipped on apple-flavored whiskey in a plastic cup.
Sheehy’s more boisterous affair was in Bozeman — the epicenter of Montana’s new wealth — at an upscale hotel where a standard room costs $395. Long before his victory was announced, carts bearing Champagne were rolled in as the candidate remained sequestered in a secure balcony area most of the night with select supporters.
Sheehy, a former U.S. Navy SEAL from Minnesota, moved to Montana after leaving the military and, along with his brother, founded Bridger Aerospace, an aerial firefighting company that depends on government contracts. Sheehy also bought a ranch in the Little Belt Mountains, and during the campaign cast himself as the modern equivalent of an early western settler seeking opportunity.
Tester received 22,000 more votes on Nov. 5 than in his last election — a gain that exceeded his margin of victory in previous wins. Yet for every additional Tester voter, Sheehy gained several more. The result was a resounding eight-point win for the Republican, removing Democrats from the last statewide office they still held in Montana.
For Republicans, it completed their domination of states stretching from the Northern Plains to the Rocky Mountains.
“We have North Dakota, South Dakota, Montana, Wyoming, Utah — we’re all kind of red now,” said Montana Republican Party Chairman Don Kaltschmidt.
Democrats as recently as 2007 held a majority of Senate seats in the Northern Plains and almost every statewide office in Montana.
Daines — who led GOP efforts to retake the Senate as chairman of the National Republican Senatorial Committee — pointed out during Sheehy’s election party that Republicans would control both Montana Senate seats for the first time in more than a century.
‘Conservative refugees’
Tester and other Democrats bemoan the wealth that’s transformed the state. It’s most conspicuous in areas like Big Sky and Kalispell, where multimillion-dollar homes occupy the surrounding mountainsides while throngs of service workers struggle to find housing.
It’s not quite the same as the Copper Kings — who at their peak controlled elected officials from both major parties — but Democrats see parallels.
“What do they say — history doesn’t repeat itself but it rhymes,” said Monica Tranel, the defeated Democratic candidate in a western Montana House district. “It is very evocative of what happened in the early 1900s. It’s very much a time of change and turmoil and who has a voice.”
Montana in 2022 gained a second House seat due to population growth over the prior decade, giving Democrats a chance to regain clout. After a narrow loss that year to former Trump Interior Sec. Ryan Zinke, Tranel ran again this year and lost.
Even as she turned to history to explain Montana’s contemporary political dynamic, Tranel considered the future. She acknowledged that Democrats have fallen out of step with a conservative electorate more attuned to party labels.
“The label itself is what they are reacting to,” she said. “Do we need a different party at this point?”
Republican officials embraced wealthy newcomers.
Steve Kelly, 66, who calls himself a “conservative refugee,” moved to northwestern Montana from Nevada at the height of the pandemic. He spent most of his 30-year career in law enforcement in Reno, but said he tired of the city as it grew and became more liberal — “San Francisco East,” he called it.
In 2020, Kelly and his wife bought a house outside Kalispell on a few acres so they could have horses. He got involved with the local Republican party and this fall won a seat in the state Legislature on an anti-illegal immigration platform.
“It seems to be different here. Most of the people we have met have also been conservative refugees, getting away from other cities,” he said.
Driving the growth are transplants from western states dominated by Democrats, especially California, where more than 85,000 Montana residents originated, or about 7.5% of the population, Census data shows. Almost half of Montana residents were born out of state.
Worker wages in Montana have been stagnant for decades, said Megan Lawson with the independent research group Headwaters Economics in Bozeman. Income from stocks, real estate and other investments has risen sharply, reflecting the changing — and wealthier — demographic.
“Certainly a large share of it is coming from folks who are moving into this state,” Lawson said. “When you put all this together it helps to explain the story of the political shift.”
___
Associated Press reporter Michael Schneider in Orlando, Florida, contributed to this report.
Montana
Montana transgender lawmaker on Capitol Hill's bathroom ban: 'Do not cede ground'
The question of who uses which bathroom on Capitol Hill has become a heated topic ahead of the 119th U.S. Congress convening next year.
This debate was sparked by the historic election of Sarah McBride, a transgender woman, to represent Delaware in Congress. In response, Rep. Nancy Mace (R-S.C.) introduced a resolution aiming to require transgender individuals to use bathrooms corresponding to their sex assigned at birth.
Democratic state Rep. Zooey Zephyr, the first transgender woman in Montana’s state legislature, understands what it feels like to be singled out.
She joined Scripps News on Friday to weigh in on the controversy unfolding in D.C.
“It’s important to acknowledge that while these attacks on transgender people are always brought one bill at a time, they do not focus on specific issues,” Zephyr said. “The hate of trans people is boundless. We saw that when Nancy Mace went on far-right media earlier this week and claimed that it was ‘offensive’ that Congresswoman McBride views herself as an equal to Nancy Mace.”
“When we see policies targeting trans women just trying to live their lives in the restroom, trying to play sports with their friends — that is not where the hate stops from the right,” Zephyr said. “That hate is on display at every moment, which is why it’s important for us to resist these efforts to target our community.”
In 2023, Republican lawmakers in Montana voted to ban Zephyr from the House floor and from participating in debates after she spoke out against a bill banning gender-affirming care for minors. The incident led to legal challenges over Zephyr’s censure and to political activism from supporters of transgender rights.
“The attacks we see on trans people will escalate. This will not be the last attack on Congresswoman McBride,” Zephyr said. “In my perspective, it is important that we make sure as trans people in this country that we do not cede ground to someone who wants to erase us — regardless of whether they want to erase us in the Capitol, or if they want to erase us as we go through our daily lives in public. We have to stand strong.”
Rep. Nancy Mace to introduce bill on restroom use tied to sex at birth
In an interview with Scripps News this week, Mace said her resolution was specifically targeted at Rep.-elect McBride, who stated she will “follow the rules as outlined” even if she disagrees with them.
“I’m not here to fight about bathrooms,” McBride said. “I’m here to fight for Delawareans to bring down the costs facing families.”
Despite McBride’s statement, Mace said her effort to ban transgender individuals from certain bathrooms extends beyond Washington. She is advocating for legislation requiring transgender people to use restrooms that align with their sex assigned at birth on any property receiving public funds.
“I have PTSD from the sexual abuse I have suffered at the hands of a man. We have to as women draw a line in the sand, a big fat red line, about our rights,” Mace said. “And the basic question today is, do women have rights or do we not? And I will tell you just the idea of a man in a locker room watching me change clothes after a workout is a huge trigger and it’s not OK to make and force women to be vulnerable in private spaces.”
RELATED STORY | As House GOP targets McBride, she says ‘I’m not here to fight about bathrooms’
Montana
Powerhouse Football Team Drops Incredible Hype Video For Legendary Rivalry Game
Montana State brought its fastball for the team’s Brawl of the Wild hype video.
The Bobcats will take the field Saturday against the Montana Grizzlies in the latest installment of one of the greatest rivalries in all of sports.
Fans of the Bobcats and Grizzlies hate each other. They’re the only two major schools in the state, and both are FCS powerhouses.
The bitterness runs deep between the fans, and once a year, they come together on the gridiron to earn bragging rights for a year.
Montana State drops epic hype video for Brawl of the Wild against Montana.
If you’re going to play in a monster college football game, then you need a great hype video to get the fans juiced up.
Well, the Bobcats brought their A-game with a hype video featuring Journey’s classic hit song “Separate Ways (Worlds Apart).”
Smash the play button below, and then hit me with your reactions at David.Hookstead@outkick.com.
That video goes insanely hard. That’s one of the best hype videos I’ve seen all season long, and I’m not at all surprised that it’s for the Brawl of the Wild.
The 11-0 Bobcats battling it out with the 8-3 Grizzlies is exactly what fans want to see in the final game of the regular season, and the stakes couldn’t be higher.
MSU is looking to go undefeated. Montana is looking to play spoiler and improve their position for the FCS playoffs.
This is what it’s all about, and do not sleep on the Brawl of the Wild simply because it’s FCS action. As someone who used to live in Bozeman, I can tell you that the environment will be nuts Saturday and the city and Bobcat Stadium will be rocking.
You can catch the game at 2:00 EST on ESPN+. It should be one of the best of the weekend. Let me know your thoughts on the Brawl of the Wild at David.Hookstead@outkick.com.
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