Most people are familiar with Montana’s natural assets – big mountains, big skies, abundant wildlife, and wild rivers. The lesser known assets are those afforded to us in our state Constitution, including the right to a clean and healthful environment, the right to know, and the right to participate in government decision-making.
Unfortunately, Montana’s government has a poor track record of neglecting these constitutional rights. Time and again we’re seeing state agencies rubber-stamp decisions behind closed doors, public records requests be slow-rolled or denied altogether, and public participation be marginalized – if not completely abandoned.
There’s really no excuse; the law is clear. Montana’s Constitution unequivocally grants the public the right to know about, and the right to participate in, pretty much every government decision before a decision is reached. Here’s the plain language of the Constitution:
- Article II Section 8: Right of participation. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.
- Article II Section 9: Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
Why is open government so important, and why should you care about this if you care about our rivers, fisheries, and wildlife?
For starters, government exists to serve the people, not to serve special interests that benefit off our public trust. When the public isn’t even informed about decisions, our right to know and right to participate is not protected. When the public is in the dark, our water resources, wildlife, property, businesses, and even our health can be adversely affected and decisions often reflect special interests, not those of the public.
Secondly, Montana’s treasured outdoor values are increasingly at risk by a multitude of threats, all of which should require increased government transparency and meaningful opportunities for citizen engagement. In Southwest Montana, our renown cold water fisheries are collapsing, with trout populations at 40-year historic lows. While exact causes have yet to be pinpointed, science already tells us that intense development pressure, a decline in quality habitat, increased pollution, warming water temperatures, and drought conditions are a few of the many challenges our rivers are up against. And while we can’t control sunlight or snowfall, we can certainly control the impacts of development, pollution, and improve habitat – that is, we can protect these key elements of our outdoors heritage when our state agencies allow us our constitutional rights to engage in government decision-making.
One of the unique capabilities of Upper Missouri Waterkeeper is our 20+ combined years of expertise in law, science, and policy. On a weekly basis we review proposed government decision-making at the local, state, and federal levels relating to water and land use in Montana’s Upper Missouri River Basin to ensure actions won’t negatively impact Montana’s water resources, public health, and communities, and to ensure compliance with the law. In 2023, a member of Waterkeeper reached out about a new regional wastewater facility that was being constructed next to his property. Like the member, Waterkeeper had no knowledge of this new regional system, and no public notices or information on the project was published from the Montana Department of Environmental Quality (DEQ), Montana Department of Natural Resources and Conservation, nor the County. Only after filing and receiving a Right to Know Request with DEQ were we able to see the project’s records. We’re now challenging DEQ in court for violating our constitutional right to know and right to participate.
Recently, Waterkeeper filed a Right to Know Request with DEQ on other wastewater treatment and disposal in the region. Under statute, the agency has 90 days to fulfill public information requests and can charge a reasonable fee for the staff time gathering documents and fulfilling the request. We paid the fee and received files just shy of 90 days after filing the request, but DEQ failed to provide all documents requested (permits, fact sheets, environmental assessments, etc). After several follow-up emails requesting the deliverance of all requested documents, the files were received, but it was no easy feat, cost hundreds of dollars, and if it weren’t for us knowing exactly what we were looking for, and our persistence, DEQ likely would have marked the file request complete without fulfilling all aspects of the request.
In our technological age, it isn’t a burden for our agencies to provide electronic documents of its past decisions, let alone post public notices in the first place. Nonetheless, here we are with government bureaucracy continuing to shield its decision-making from the public.
Although we most often see this issue with DEQ, we recognize transparency is a systemic problem running through the state. Here are a few recent examples of the government’s lack of transparency since 2021:
- Montana citizen Jayson O’Neill filed suit against Governor Gianforte after he denied O’Neill’s request for public records related to legislative bill tracking and claimed the forms were subject to “executive privilege.” The District Court agreed with O’Neill, but Gianforte appealed. The Supreme Court will hold oral arguments on the case this fall.
- The Montana Environmental Information Center filed suit against the Gianforte Administration after it failed to release public documents requested in an official information request. The judge sided with MEIC and ordered the Administration to release the records, but Gianforte has yet to do so.
- Wolves of the Rockies sued Montana Fish, Wildlife, and Parks (FWP) for violating open meeting laws and failing to produce public information. Commissioners were caught internally discussing how they would vote on wolf hunting and trapping regulations prior to a meeting. FWP admitted to violating the public’s constitutional right to know and has agreed to a list of remedies, including publishing all non-privileged emails and texts written within two days of a commission meeting and disclosing all communications with interest groups.
- In the same month, wildlife groups filed suit against FWP for violating public meeting laws again. This time, the agency scheduled an emergency Fish and Wildlife Commission meeting with only a two hour business day notice, which plaintiffs claim is a violation of public participation laws by providing inadequate notice.
Here are three easy things our agencies should be doing to ensure open government in Montana:
- Craft and adopt a public participation policy that explicitly requires all non-ministerial decisions be made available for public notice and comment;
- Create an electronic web portal containing the most recent approvals for all licensed/permitted activities that can affect water resources. At a minimum this should include all activities required to seek authorization under the Montana Water Quality Act, Subdivisions and Sanitation Act, Water Supply, Treatment, and Distribution Act, and 310 Law.
- Ensure each resource agencies’ electronic web portal also contains a clear registry of all proposed government action by type, date, and affected resource with a minimum 30-day comment period.The federal government already performs pretty much the same function through the Federal Register; resource agencies of the State of Montana should do the same.