Montana
Montana Supreme Court hears oral arguments about 'executive privilege' in O'Neill v. Gianforte • Daily Montanan
Nearly 20 court cases from outside Montana recognize “executive privilege,” a right for the governor to guard certain pieces of information as confidential, and Montana needs to do the same, argued a lawyer for the state last week to the Montana Supreme Court.
Right now, the governor hears “robust, unfiltered and sometimes harsh criticisms” about proposed legislation, and his staff shouldn’t have to worry about retaliation if those criticisms become public, said Dale Schowengerdt, on behalf of Gov. Greg Gianforte.
“That is ultimately to the public’s detriment because it impedes the governor’s ability to make the best decision possible on whether to sign or veto a bill,” said Schowengerdt, of Landmark Law.
But take one step back and look at the right of the people in the Montana Constitution, argued Constance Van Kley, on behalf of a plaintiff and political consultant seeking those records.
“Transparency and open government are the status quo in Montana,” said Van Kley, of Upper Seven Law. “And it’s against this backdrop that we should see the governor’s request for what it is. It is a novel request to create a broad, never-before-recognized exception to our fundamental constitutional right to know.”
In Missoula on Friday, the Montana Supreme Court heard arguments in Jayson O’Neill v. Gianforte.
In the lawsuit, O’Neill is fighting to see “agency bill monitoring forms,” which track bills and apparently contain staff advice about how the governor should treat proposed legislation. But the governor’s office argues his “executive privilege” means he can withhold them.
In 2022, a Lewis and Clark County District Court judge said Montana doesn’t recognize any form of “executive privilege,” and she ordered the governor to turn over the records to the court for private review and possible release to the public.
The governor, however, appealed the decision, and in oral arguments on Friday, the Montana Supreme Court justices mulled whether a place exists in Montana for some form of “executive privilege.”
If it does, how far does such a privilege go? What else would it cover?
Would legislative legal notes that review proposed bills, and are currently public, end up secret too?
On the other hand, if there isn’t a place in Montana for such a privilege, how can the state protect the executive’s decision-making process, as other jurisdictions outside the state have done?
Schowengerdt argued the governor respects the public’s right to know, having worked with the legislature on a bill that streamlines records requests. But he said small exceptions are needed for candid bill vetting — which is in the best interest of the public.
Van Kley, however, said the delegates to Montana’s 1972 Constitutional Convention believed government needs to be responsible to the people it represents and protect the public trust.
“This can only occur when the activities of government are visible,” Van Kley said.
Justices quiz state lawyer on ‘executive privilege’
At a hearing hosted by the University of Montana law school at the Wilma Theatre, the justices pressed both lawyers about whether an executive privilege was appropriate, and if it was, how it would fit into Montana’s legal landscape.
Schowengerdt said the delegates wanted to build a stronger executive, the decision to sign or veto legislation is one of the most important functions of that office, and every executive since George Washington has claimed some form of executive privilege.
In U.S. v. Nixon, he said, the U.S. Supreme Court found such a privilege is “fundamental to the average government.” In that case, the justices found the president can’t withhold records in a criminal prosecution, but executive privilege is valid in some circumstances.
Montana Supreme Court Justice Ingrid Gustafson, however, wanted to know how far such a privilege would go if Montana accepts that idea. Would it apply only to records related to “pre-decisional deliberations,” such as those forms? And what would the process be for deciding whether the privilege applies?
Schowengerdt said the privilege could extend to other “pre-decisional deliberations,” but he said in this case, the governor was making only a limited request.
“However you slice it, it’s narrow,” he said.
Justice Beth Baker, though, said some of the cases he cited protected the governor’s schedule: “Would that be the case in Montana?”
Schowengerdt said he didn’t know. (In a separate records request, O’Neill asked for and received copies of the governor’s calendar, but with the vast majority of the entries redacted.)
District Court Judge Leslie Halligan, sitting in for Chief Justice Mike McGrath who was out for a health concern, wanted to know what happens after a decision is made. Are the forms open to the public then?
Schowengerdt said no, or the same chilling effect from frank feedback would occur. But he also said a process has been laid out, and some records could be subject to an “in camera” review, or a private review and possible release by the court, but the governor has the burden to assert the scope of the privilege.
Halligan, though, also said in the Nixon case, the fight was between two branches of government, and in this case, it involves the “strong provision of the public’s right to know” in the Montana Constitution.
As such, the justices wanted to know how Schowengerdt suggested executive privilege would work regarding the actual subject matter.
For one thing, he said, the ultimate decision the governor makes is known to everyone, and the protection itself is just for the internal “devil’s advocacy.”
“It’s for the staff so that (the governor) receives that unfiltered information,” Schowengerdt said.
‘Is it an absolute position?’
Although Schowengerdt said executive privilege is common and the governor in Montana needs just a small amount of protection, Van Kley argued the court shouldn’t open that door at all.
But Justice Dirk Sandefur pressed Van Kley on the idea that executive privilege shouldn’t be recognized.
Van Kley said she agreed some records may be outside the scope of the constitutionally protected right to know, and Sandefur wanted to know how she would define them.
For starters, she said, those with significant privacy interests. Additionally, she said, the examples used by delegates, such as documents related to property purchases prior to a deal, because disclosing them would interfere with the ability of the government to get a good price.
But she said those exceptions aren’t similar to the case at hand.
“Executive privilege is fundamentally different from that,” Van Kley said.
The privilege has “no limiting principle,” she said; in this case, the governor simply said, “no” and didn’t provide even a blank version of the form her client requested.
She also stressed that the governor’s argument that other jurisdictions have used the privilege omits an important factor: “Not one of those shares our constitutional right to know.”
Sandefur, however, said the court first needs to decide whether it will recognize executive privilege, and then if so, figure out how it would apply to the specific documents in question.
Justice Jim Rice raised a question about practice on the ground. He said even though the cases outside Montana all apply different laws, they all stand for the “factual reality” the governor needs to be able to receive confidential information to make decisions only he can make.
“So how does Montana law accommodate what appears to be an undisputed factual reality about how the executive has to operate?” Rice asked.
In other cases, Van Kley said, the fights involve separation of powers, where one branch is fighting with another, but that’s not true in this case. Here, she said, the calculus is different because the public has a constitutionally protected right to know, and it’s typically “self executed,” except the governor denied information in this case.
In that context, she said, executive privilege doesn’t hold up in Montana.
Justice Beth Baker, however, wanted to know why there would be room to protect judicial deliberations but treat executive deliberations differently. Van Kley said for one thing, the protection for the judiciary is narrow, but the governor wants a much broader protection.
She also said transcripts from the constitutional convention show a privilege for judicial deliberations is ingrained in the state’s legal landscape, but that’s not the case for executive privilege.
Van Kley said Montanans have a right to observe public bodies deliberate, and the argument that someone might “say things differently” in public isn’t strong enough to keep records private: “Our constitution expects the people of Montana can understand that decision-making is sometimes difficult, that it is messy. There is no need for secrecy.”
Sandefur, however, questioned whether the governor himself is a “public body” as opposed to a constitutional officer, and Justice Jim Shea said the state already has recognized many exceptions to the right to know besides privacy, including attorney-client privilege, work product privilege, and others. (Shea also said since Nixon wasn’t decided until 1974, it’s fair to say executive privilege wasn’t on the radar of the delegates in 1972.)
Van Kley, though, said just as the delegates were looking at building a stronger executive branch, they were also concerned about the consolidation of power: “And the answer to that is accountability and transparency.”
Sandefur said he understood her position was that executive privilege wasn’t supported in Montana, but if the court found there was at least some need for it, he asked how would she sketch out the parameters.
Van Kley said the governor would bear the burden every time of demonstrating the need in connection with a specific task: “I think that at this point, the governor has failed to meet his burden.”
Disclosure: Upper Seven is representing the Daily Montanan in a separate public records matter.
A proposal to put nearly 33,000 acres of working forestland in northwest Montana into a conservation easement has cleared its last major hurdle.
In a 3-1 vote on Monday, the Montana Land Board adopted language amending an agreement between timber company Green Diamond and Montana Fish, Wildlife, and Parks that closes the book on a conservation project that took four years and nearly $40 million to finalize.
The Montana Great Outdoors Conservation Easement is located between Kalispell and Libby and encompasses parts of the Salish and Cabinet mountains. The roughly 33,000 acres of land will be protected from development to support wildlife habitat and “key landscape connectivity,” according to FWP.
An FWP memo on the project says the easement also provides “permanent free public recreation access” to the enrolled lands while sustaining their use as a working forest.
The U.S. Forest Service’s Montana Forest Legacy Program is putting $20 million toward the easement. Habitat Montana, a fund administered by FWP, is contributing $1.5 million, and the Trust for Public Lands coordinated another $4.2 million of financial support for the project. Finally, Green Diamond is donating about $14 million of the land’s value.
The easement is perpetual, meaning the terms of the agreement will remain in effect indefinitely, even if Green Diamond later sells the land.
In addition to supporting long-term timber harvest, the easement will confer tax benefits to Green Diamond, which owns and manages working forests in nine states throughout the southern and western U.S. According to a FAQ on the easement, Green Diamond will continue to pay local property taxes in Lincoln, Sanders and Flathead counties once the easement is recorded.
The easement faced a tumultuous path to adoption. When the Land Board first voted on it in October, WRH Nevada Properties, which owns the mineral estate beneath approximately half of the 33,000 acres, argued that the easement jeopardized its ability to develop the subsurface mineral estate.
Peter Scott, an attorney representing WRH and Citizens for Balanced Use, argued before the Land Board on Oct. 21 that the board would be ill-advised to authorize the easement while a lawsuit over it is pending, and given that ground-disturbing activities are “not compatible” with the Montana Forest Legacy Program’s purpose.
“The folks that fund mineral exploration are not looking for conservation easements as part of their program,” Scott said. “In fact, they’re leaving and taking their mineral exploration money elsewhere. From their standpoint, Montana is not open for business in the context of mineral exploration.”
To help alleviate that concern, the board voted in October to draft language recognizing its intention to protect the mineral rights holders’ ability to access and develop their mineral rights within the easement’s bounds.
The board’s 3-1 vote effectively alters the easement to read that the mineral rights holders “shall not be infringed upon.” The mineral rights holder will retain the ability to “enter and use the [conserved land] for exploration, recovery and development of the minerals consistent with state law,” per the language adopted by the board.
State Superintendent and Land Board member Elsie Arntzen opposed a final vote on the easement, arguing that more discussion is needed and indicating that the state Legislature, which is set to gavel in for its biennial session next month, may be inclined to weigh in. She sought to postpone final action until at least the spring, a delay Gov. Greg Gianforte did not support for fear it would compromise the Forest Service’s $20 million contribution to the easement.
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“The staff worked with all of the concerned parties to get language that was agreeable. For us to make additional changes here, without consultation with all of the parties, would put us in a difficult position,” Gianforte said, adding that Arntzen had effectively missed her window to oppose the easement writ large.
“At this point, the easement has been approved, subject to this language,” Gianforte continued. “I feel a strong compunction to honor the local consensus which has been built around this, which I think is reflected in this modified language.”
Arntzen also attempted to issue a “no” vote by proxy for Montana Attorney General and Land Board member Austin Knudsen. Gianforte, who chairs the Land Board, said only members who are actively present can vote.
Gianforte also struck down an amendment offered by Secretary of State and Land Board member Christi Jacobsen to make the easement subject to a 99-year term rather than perpetual.
The easement “has been granted, has been finalized,” Gianforte said. “So I would rule your amendment out of order.”
A variety of conservation and forestry-oriented organizations support the easement, arguing that it contributes to conservation and recreational objectives, and supports local economies reliant on forestry by facilitating access to a long-term timber supply. Those groups include Rocky Mountain Elk Foundation, Montana Wildlife Federation, Trust for Public Land, Montana Wood Products Association, Montana Logging Association,Stimson Lumber and FH Stoltze Land & Lumber.
A trio of current and former elected officials opposed the easement in a letter to the Land Board, arguing that more due diligence should have been done to assess the prevalence of subsurface minerals and communicate with WRH about the project. A letter signed by Rep. Steve Gunderson, R-Libby; Sen. Dan Bartel, R-Lewistown; and Kerry White, a former state representative from Bozeman who now leads Citizens for Balanced Use, a nearly 20-year-old nonprofit that calls for more motorized recreation and resource development on public land.
The second stage of the Montana Great Outdoors Conservation Easement is still in development. It’s estimated to top 52,000 acres to the west and south of the Lost Trail National Wildlife Refuge.
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The search for a missing Conrad woman at the High Plains Landfill north of Great Falls has been suspended, the Cascade County Sheriff’s Office announced on Monday afternoon.
Alicia Wood, 46, was last seen on Nov. 22 and was reported missing on Nov. 30 to the Conrad Police Department. Wood’s car was found abandoned on the side of Highway 91 between Conrad and Brady and blood was later found inside the vehicle.
The Montana Department of Criminal Investigation took over the case and a lead prompted a search for Wood at the landfill. The search began on Dec. 5 and lasted nine days.
“The is not a decision we took lightly, however, we feel we have conducted a thorough search of our landfill based on the information and leads provided,” Cascade County Sheriff Jesse Slaughter said in a statement.
DCI and the Pondera County Sheriff’s Office will continue to lead the investigation.
“As I said at the beginning of our search this is just one lead in this investigation. I’m confident that the Division of Criminal Investigation will continue to follow all current and future leads,” Slaughter said.
Anyone with information about the disappearance of Alicia Woods is asked to contact the Division of Criminal Investigation by calling or 406-444-3874 or emailing contactdci@mt.gov.
The Cascade County Sheriff’s Office also thanked the numerous law enforcement and civilian agencies who assisted in the landfill search, as well as community supporters who provided meals for the search party.
Millions of Americans and visitors from all over the world come every year to Montana, and perhaps most know the Big Sky Country state for its access to renowned national parks, like Glacier and Yellowstone. But it offers so much more. A confluence of cultural forces has shaped this region — from the Native American traditions to the gold rushes — and it is that Old West spirit that Montana’s residents have proudly kept alive. In Montana, we’ve discovered seven of the most unconventional towns. They dot the Montana map, inviting visitors to experience and be fully immersed in the state’s heritage and traditions.
Philipsburg brings a bygone mining era back to life. Red Lodge is the ultimate rugged alpine experience. Bigfork is valued for its art scene and summer theater. Livingstone is the “Gateway to Yellowstone.” Virginia City is a well-preserved gold rush historical experience. Whitefish is a haven for outdoorsy types, but it also has a touch of sophistication. Fort Benton, is remembered as the “Birthplace of Montana.” Join the tour and discover how each of these towns is as unique as the landscapes they inhabit.
Philipsburg
Nested in a verdant valley between the Sapphire Mountains and Flint Creek is the town of Philipsburg, with its dense pine forests and alpine lakes. The downtown is marked by restored 19th-century buildings with colorful frontages. The friendly town has a nostalgic vibe with its antique shops and boutique shopping, such as the Sweet Palace, a candy store. Historical landmarks include the Opera House Theatre, built in 1891, and The Granite Country Museum, showcasing the town’s mining heritage. Sapphire mining at Gem Mountain is a unique experience. The Granite Ghost Town State Park and the annual Flint Creek Valley Days festival with its parade and live music make Philipsburg extra special.
Red Lodge
With access to Beartooth Highway, what has been dubbed “the most beautiful drive in America,” Red Lodge is an exceptional town. The downtown boasts of Wild West-style architecture, with saloons, eateries and art galleries. Historical landmarks are The Carbon County Historical Society and Museum, displaying the town’s ranching and mining history. Commercial attractions include the Yellowstone Wildlife Sanctuary. The town is settled at the base of the Beartooth Mountains and surrounded by rolling meadows.
Bigfork
Enveloped by forests, rolling hills and settled along the northeastern shore of Flathead Lake is the town of Bigfork. Bigfork’s downtown blends rustic log cabins with modern designs. The charming town is lined with bistros, galleries and shops. The town has a thriving art scene, annual events like the Bigfork Festival of the Arts, brings the whole community together. Wayfarers State Park provides breathtaking views of Flathead Lake and is rich in Native American history. One thing that is special about this town is The Bigfork Summer Playhouse, a seasonal theater that has given the town the nickname “Montana’s Broadway.”
Livingston
Downtown Livingston with its turn-of-the-century brick buildings hosting quirky cafes, bars and bookshops, presents residents and visitors with a relaxed, artsy vibe. The town is prized as a “foodie paradise” with local favorites like Fainting Goat Pub and Engine Room Deep Dish Pizza. Lying along the Yellowstone River, the small town is surrounded by the Crazy and Absaroka mountains. One thing that stands out is Livingston hosts an annual famous rodeo and has become known as the “Gateway to Yellowstone.” The Livingston Depot Center is a restored train station, which showcases the town’s railroad history. Livingston is a haven for outdoor enthusiasts with activities like fly-fishing, hiking and, of course, access to Yellowstone National Park.
Virginia City
Once known as “Fourteen Mile City,” the gold rush era town of Virginia City is based in a valley and surrounded by sagebrush hills and the Tobacco Root Mountains. During its heyday period the town was regarded as a social center and transportation hub in the region. Today the entire town is a historic site. Something that makes Virginia City unusual is the town actors that bring the mid-1800s to life again. The small settlement feels like a well-preserved ghost town with its wooden sidewalks, saloons, and mercantile shops. Be sure not to miss the Virginia City Opera House and Alder Gulch. Visitors can pan for gold and take a historic stagecoach ride.
Whitefish
The town of Whitefish has a unique tradition, known as their annual Huckleberry Days, which celebrates the local berry. A gateway to Glacier National Park, surrounded by forests and lakes with views of Big Mountain, Whitefish is plentiful in natural beauties, with much to explore and see. The downtown combines rustic architecture with a sophisticated modern touch. Be sure to check out the Whitefish Farmers’ Market, along with the many fine dining options and boutiques. Big Mountain has the best skiing in the winter and the tail rides through Bar W Guest Ranch are second to none. No visit to Whitefish is complete without some time by or on the water. Whitefish City Beach is a great place for the whole family to play. The Great Northern Railway Depot and Whitefish Lake State Parks are historical landmarks.
Fort Benton
When visitors drive past herds of antelope and deer while enjoying majestic views in all directions, they quickly come to understand why Fort Benton has been praised for its beauty by both Forbes and National Geographic Traveler. Located along the Missouri River and surrounded by rolling planes and the region’s rich agricultural land, Fort Benton is a gem of a town. Fort Benton’s downtown blends well-maintained frontier-era buildings and modern designs. Landmarks include The Lewis and Clark Memorial and the Museum of the Upper Missouri, which display the town’s role in westward expansion. Be sure to book boat tours with groups like Upper Missouri River Guides for excursions along the Missouri River that showcase views of bluffs and local wildlife.
Parting Thoughts
Montana is the fourth-largest state in the U.S., covering over 147,000 square miles. Its name comes from the Spanish word montaña, meaning “mountain,” reflecting its dramatic landscapes. The Missouri River, one of North America’s longest rivers, begins in Montana. The state experiences a range of weather, from snowy winters to warm summers. Rich in history, Montana was once home to Native American tribes like the Crow and Blackfeet. Today, it’s celebrated for its outdoor recreation, including hiking, fishing, and skiing. These seven most unconventional towns in Montana are each marked out for something special in their natures, which have become woven together into the cultural tapestry of this Old West state. From world class national parks to outstanding natural wonders to rich Native American and gold rush histories, these towns are quintessentially Montana.
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