Case Number: 2018MT 151

Judge: Laurie McKinnon

Court: SUPREME COURT OF THE STATE OF MONTANA

Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Jon Bennion, Chief Deputy Attorney General, Stuart Segrest, Assistant Attorney General, Helena, Montana

Defendant's Attorney: William W. Mercer
Brianne C. McClafferty

Description: The Montana Mining Association (MMA) challenges the Attorney General’s
determination that Initiative 186 (I-186) is legally sufficient in an original proceeding
before this Court. This Court has “original jurisdiction to review ...the attorney general’s
legal sufficiency determination in an action brought pursuant to 13-27-316.” Section
3-2-202(3)(a), MCA. We conclude this proceeding is properly before this Court and
exercise our original jurisdiction.
¶2 If enacted, I-186 would change the mine permitting process by adding a requirement
to mines’ reclamation plans. I-186 proposes amendments to§§82-4-336 and -351, MCA,
and would prohibit new hard-rock mines’ reclamation plans from requiring perpetual
treatment of polluted water. MMA challenges I-186 on the basis that it violates
§13-27-105, MCA, which requires that an initiative issue delegatingrulemaking authority
be “effective no sooner than October 1 following approval.” We denyMMA’s request to
overrule the Attorney General’s legal-sufficiency determinationand address the following
issue:
If a proposed initiative potentially delegates rulemaking authority, is the initiative’s effective date part of the Attorney General’s legal-sufficiency review?
FACTUAL AND PROCEDURAL BACKGROUND ¶3 In February 2018, I-186’s proponents (Proponents) submitted Ballot Initiative
No. 12 (BI-12) to the Secretary of State and the Legislative Services Division for review.
Legislative Services responded with comments and a revised draft. Some of Legislative
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Services’ concerns regardedBI-12’s useof terms such as “perpetual treatment,” noting that
BI-12 did not provide definitions. Proponents responded, accepting certain revisions and
commenting on Legislative Services’ suggestions. To clarify what treatment activities
would constitute “perpetual treatment,” Proponents added the term “perpetual leaching”
and noted “that any further definition, if needed, is within the scope of agency rulemaking.”
¶4 In April 2018, Proponents submitted a draft of Ballot Initiative No. 14 (BI-14) to
Legislative Services, which was substantially similar to BI-12. Legislative Services
responded, providing specific comments and revisions to BI-14, but also referring
proponents to Legislative Services’ previous comments regarding BI-12. Proponents
subsequently submitted BI-14 to the Attorney General for a legal-sufficiency review
pursuant to § 13-27-312, MCA. The Attorney General made slight revisions, determined
the initiative was legally sufficient, and named the proposed ballot initiative I-186.
Proponents began the signature-gathering process.
¶5 I-186 offers amendments to §§ 82-4-336 and -351, MCA, and provides that the
changes would be “effective upon approval by the electorate.” Specifically, I-186 would
add a new subsection (13)to §82-4-336,MCA, providing:
(a) The reclamation plan must contain measures sufficient to prevent the pollution of water without the need for perpetual treatment. (b) For purposes of this subsection (13), the term “perpetual treatment” includes activities necessary to treat acid mine drainage or perpetual leaching of contaminants, including arsenic, mercury and lead. (c) This subsection (13) applies except in the case of a proposed amendment to an operating permit or reclamation plan pursuant to which a mine has been permitted on or before November 6, 2018.
I-186 would further amend §82-4-351, MCA, by adding a new subsection (3), providing:
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The department shall deny an application for a permit or an application for an amendment to a permit unless the department finds, in writing and based on clear and convincing evidence, that the reclamation plan meets the requirements of 82-4-336(13). This subsection (3) applies except in the case of a proposed amendment to an operating permit or reclamation plan pursuant to which a mine has beenpermitted on or before November 6, 2018.
The statement of purpose for I-186 approved bythe Attorney General provides:
I-186 requires the Department of Environmental Quality todeny a permit for any new hardrock mines in Montana unless the reclamation plan provides clear and convincing evidence that the mine will not require perpetual treatment of water polluted by acid mine drainage or other contaminants. The terms “perpetual treatment,” “perpetual leaching,” and “contaminants” within I-186 are not fully defined and would require further definition from the Montana Legislature or through Department of Environmental Quality rulemaking.
(Emphasis added.)
¶6 On May 25, 2018, MMA filed this original action, challenging the Attorney
General’s legal-sufficiency determination. MMA asks this Court to determine that I-186
is legally insufficient because it violates § 13-27-105, MCA, regarding the effective date
of initiative issues. MMA requests this Court issue an order, pursuant to
§13-27-316(3)(c)(iii), MCA, finding that the initiative is legally insufficient, declaring all
petitions supporting I-186 void, and declaring that no future signature gathering may occur
unless the petition complies with applicable law.
DISCUSSION ¶7 The Attorney General is charged with ensuring that proposed initiatives are legally
sufficient. Section 13-27-312(1), MCA. A proposed initiative is legally sufficient if the
petition “complies with statutory and constitutional requirements governing submission of
the proposed issue to the electors.” Section13-27-312(7), MCA. The Attorney General’s
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review “of the petition for legal sufficiency does not include consideration of the
substantive legality of the issue if approved by the voters.” Section 13-27-312(7), MCA.
See alsoMont. Consumer Fin. Ass’n v. State, 2010 MT 185, ¶9, 357Mont. 237, 238 P.3d
765. Instead, the Attorney General’sreviewis meant to identify non-substantivestatutory
and constitutionaldeficiencies regarding submission of the initiativeto the voters. Section
13-27-312(7), MCA. This Court’s examination is, in turn, limited to a review of “the
attorney general’s legal sufficiency determination.” Section 3-2-202(3)(a), MCA;
§ 13-27-316(2), MCA (“If the opponents of a ballot issue . . . believe that the attorney
general was incorrect in determiningthat the petition was legally sufficient, they may . . .
file an original proceeding in the supreme court challenging . . . the attorney general’s
determination ....”).
¶8 The Legislature developed specificstatutoryguidelines regarding when an initiative
issue may become effective. Section 13-27-105(1), MCA, provides:
Unless the petition placing an initiative issue on the ballot states otherwise, an initiative issue . . . approved by the people is effective on October 1 following approval. If the issue delegates rulemaking authority, it is effective no sooner than October 1 following approval.
The petition placing I-186 on the ballot provides that the statutory amendments would be
“effective upon approval by the electorate,” but contains no language on its face which
delegates or otherwise mentions rulemaking. I-186’s statement of purpose does not address
the initiative’s effective date if approved by the voters, but does provide that the terms
“perpetual treatment,” “perpetual leaching,” and “contaminants” “would require further
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definition from the Montana Legislature or through Department of Environmental Quality
rulemaking.”
¶9 MMA argues the effective date renders the Attorney General’s determination that
I-186 is legally sufficient incorrect. The petition for I-186 provides for an immediate
effective date; however, MMA maintains that I-186 delegates rulemaking authority and
therefore cannot become effective sooner than October 1 following approval. MMA
supports its position by arguing that Title 13, Chapter 27, MCA, as a whole, contains the
statutory requirements that set forth the scope of the Attorney General’s legal-sufficiency
review. MMA reasons that an initiative’s effective date is a statutory requirement
governing the submission of the proposed issue to the electors—something that is purely
procedural—and therefore within the scope of the Attorney General’s legal-sufficiency
review. MMA asserts that I-186 “undisputedly delegates agency rulemaking.” I-186’s
statement of purpose explicitly statesthat certain terms are not defined and “would require
further definition from the Montana Legislature or through Department of Environmental
Quality rulemaking.” (Emphasis added.)
¶10 The Attorney General and amicus curiae1 argue that the statutory text of I-186 does
not delegate rulemaking authority and, further, that the effective date is not part of the
Attorney General’s legal-sufficiency review because whether an initiative’s effective date
complies with § 13-27-105(1), MCA, is a substantive legal question, not a question of
procedural sufficiency. The Attorney General reasons that §13-27-105(1), MCA, does not
1 Amicus curiae, YES for Responsible Mining, submitted a brief supporting the Attorney General.
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provide what information a proposed initiative must contain, unlike, for example,
§ 13-27-204, MCA, which details the form of an initiative’s petition. Instead,
§ 13-27-105(1), MCA, provides that “if the issue delegates rulemaking authority, it is
effectiveno sooner than October 1.” (Emphasis added.) The Attorney General argues that
an initiative delegating rule making authority “is effective no sooner than October 1,”
regardless of whether the initiative states an earlier date.2
¶11 The Attorney General further contends that, even if the Court decides that an
initiative’s effective date falls within the Attorney General’s legal-sufficiency review,
MMA’s argument fails because I-186 does not delegate rulemaking authority. The
Attorney General reasons that I-186’s proposed statutory text, on its face, does not delegate
rulemaking authority. While acknowledgingthat I-186 will likely require further direction
from the Legislature or other rulemaking before it can be enforced, as I-186 contains new
terms requiring definition and processes requiring enforcement, the Attorney General
distinguishes an initiative containing clear and specific language delegating rulemaking
authority from an initiative such as I-186,which does not contain clear delegation language
but will likely require additional rulemaking if passed. The Attorney Generalreasons that
the need for new rules alone is not itself a grant of rulemaking authority. The Attorney
General therefore concludes that the October 1 effective-date requirement does not apply
to I-186.
2 I-186 contains a severability clause, providing, in part,that if a partof I-186“is invalid, all valid parts that are severable from the invalid part remain in effect.” Amicus thus maintains that if the effective date is subsequently determined to be invalid, it may be severed and the remaining provisions of I-186 upheld.
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¶12 We determine that the issue of whether I-186 delegates rulemaking authority and
thus requires an effective date of no sooner than October 1 is outside the scope of the
Attorney General’s legal-sufficiency review. The Attorney General’s legal-sufficiency
review of I-186 was necessarily limited to the “statutory and constitutional requirements
governing submission of the proposed issue to the electors.” See § 13-27-312(7), MCA.
To determine whether I-186 complies with § 13-27-105(1), MCA, the Attorney General
would have to decide if I-186 delegates rulemaking authority. Answering that question
would require the Attorney Generalto analyze the text or substance of I-186 in the context
of relevant caselaw and statutes addressing the delegation of rulemaking authority to an
agency, which is a broader inquiry than whether I-186 complies with statutory and
constitutional requirements governing submission of a ballot initiative to the electors. See
§13-27-312(7), MCA. The statutory text of I-186, see supra¶5, does not “contain specific
guidelines describing for the agency and the public what the rules may and may not
contain.” Section 5-4-103, MCA (setting forth the manner in which a statute must delegate
rulemaking authority to an agency). However, I-186’s statement of purpose provides that
certain terms will need to be defined through future “rulemaking.” We would have to
undergo a substantive review of I-186 in order to determine whether it delegates
rulemaking authority—something we cannot do based on the limited nature of the Attorney
General’s legal-sufficiency review and our review thereof.
¶13 The “initiative and referendum provisions of the Constitution should be broadly
construed to maintain the maximum power in the people.” Nicholson v. Cooney, 265 Mont.
406, 411, 877 P.2d 486, 488 (1994) (citing Chouteau Cnty. v. Grossman, 172 Mont. 373,
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378, 563 P.2d 1125, 1128 (1977)). Pre-election judicial review is disfavored because the
people of Montana have a constitutional right to “change the laws of this State through the
initiative process.” Harper v. Greely, 234 Mont. 259, 265-66, 763 P.2d 650, 654 (1988)
(quoting State ex rel. Boese v. Waltermire, 224 Mont. 230, 234, 730 P.2d 375, 378 (1986)).
Because the issue of whether I-186 delegates rulemaking authority is outside the scope of
the Attorney General’s legal-sufficiency review, it is also, accordingly, outside the scope
of this Court’s pre-election initiative review.

Outcome: IT IS ORDERED that MMA’s request to overrule the Attorney General’s
legal-sufficiency determination for I-186 is DENIED.

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