Backers of a constitutional initiative to legally protect abortion access have petitioned the Montana Supreme Court to allow their proposal on the 2024 ballot after Montana’s attorney general labeled the measure “legally insufficient.” 

Montanans Securing Reproductive Rights, the political committee supporting the constitutional abortion amendment drafted by Planned Parenthood Advocates of Montana, filed its legal challenge Friday, 10 days after Attorney General Austin Knudsen shot down the measure in his required legal sufficiency review. 

In the lawsuit, attorneys for the group refuted Knudsen’s findings that their proposal “logrolls multiple distinct political choices into a single initiative” and “limits the ability of the state to provide for public health and safety.” Rather, attorneys for the amendment argued, Constitutional Initiative 14, or CI-14, “plainly affects one topic and does so in a single, comprehensive way: establishing and outlining the right, then securing it from government interference.”

“It is no secret that CI-14 is, in part, a response to the sustained attack on abortion rights in Montana by the government, under laws that purport to do exactly what Subsection (3) prohibits: penalize, prosecute, and adversely affect those who exercise their rights or those, like healthcare providers, who assist,” the lawsuit states.

If approved by voters in November, the language of the constitutional initiative would add the express right in the Montana Constitution to “make and carry out decisions about one’s own pregnancy, including the right to abortion.” The amendment would allow the government to regulate abortion after the point of fetal viability unless a treating medical provider determines that terminating a pregnancy “​​is medically indicated to protect the life or health of the pregnant patient.” 

The proposal would also prohibit the government from penalizing or prosecuting a person for the outcome of their pregnancy, and similarly protect any person from adverse government action “for aiding or assisting another person in exercising their right to make and carry out decisions about their pregnancy with their voluntary consent.”

In the Jan. 16 finding, authored by Deputy Solicitor General Brent Mead, the attorney general’s office said that the ballot proposal distills many complexities of abortion policy, effectively creating “an express right to abortion but [denying] voters the ability to express their views on the nuance of the right.”

The lawsuit on Friday says that reasoning “stretches the bounds of credulity,” and, if allowed to stand by the state Supreme Court, could allow the attorney general to “adopt a new, lawless standard that permits the A.G. to block virtually any constitutional amendment that, in his own subjective determination, could benefit from more ‘nuance.’”

In the legal review, the attorney general’s office also pointed out that the proposed ballot language doesn’t match the parameters of Montana’s longstanding legal precedence allowing people to seek an abortion under the existing constitutional right to privacy. That 1999 court decision in Armstrong v. State, Knudsen’s office said, allows regulations of abortion when they serve “a compelling state interest and are narrowly tailored.” But by giving deference to a medical provider’s determination of what is “medically necessary,” the attorney general continued, those reasonable regulations cannot survive. 

Attorneys for Montanans Securing Reproductive Rights asked the court Friday to bypass considering “unripe theories” about how the proposed amendment does or does not square with the Armstrong ruling.

“The A.G.’s arguments on this score are not a basis to keep CI-14 from Montana voters, and the court should decline the A.G.’s implicit invitation to weigh in on whether and how CI-14 would interact with the Armstrong decision or the pending cases in Montana that rely on it,” the lawsuit states.

The legal filing also challenged Knudsen’s comments attached to a $0 fiscal note prepared by the governor’s Office of Budget and Program Planning. While the attorney general concluded that the ballot proposal’s resulting cost to the state cannot be determined, he also opined on possible future costs to Montana’s state health care plan, Montana Medicaid and costs from increased future litigation if the constitution was amended.

Attorneys for the constitutional initiative asked the Supreme Court to strike those arguments entirely, saying the attorney general’s comments amounted to “advocacy” and exceeded his authority. 

If the court rules in its favor, ballot issue supporters asked the court to direct the attorney general to send the proposed ballot statements to the Montana secretary of state within five business days. If allowed to advance to the next stage, the ballot committee must collect signatures of at least 10% of the qualified electors in the state, based on the last general election, in order to qualify for the November ballot.

In another recent case over a constitutional amendment to change the state’s political primary process, Knudsen’s office also accused drafters of logrolling multiple provisions into one proposal. The Montana Supreme Court ultimately ruled against that interpretation, allowing backers of the top-four primary measure to gather signatures to put the issue before voters. 

The attorney general’s office has not yet filed a legal response to Friday’s lawsuit.

The post Constitutional abortion backers file lawsuit to get on November’s ballot appeared first on Montana Free Press.

This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.

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The record-breaking cold snap Montana saw this month brought days of below-zero temperatures across the state — and with them what major Montana utility NorthWestern Energy said was record-high electric demand from its customers.

The arctic blast, and how the state’s energy system responded, triggered a wave of analysis from folks engaged in Montana’s running debate over renewable energy, coal generation and the future of the state’s electric grid.

The Montana Environmental Information Center, for example, posted a video to Instagram on Jan. 12 citing data from the U.S. Energy Information Administration to push back on NorthWestern’s longtime assertion that it can’t reliably supply Montanans with winter power without maintaining coal-powered generation.

The data, noted MEIC co-director Anne Hedges, showed that coal generation had dropped by about half on Jan. 7, a shift she interpreted as a sign of trouble at the Colstrip power plant. Wind generation, she noted, surged over much of the subsequent three days.

“During the coldest part of the year, half of the largest plant in the western United States is not working — but yet the grid hasn’t collapsed, our lights turn on, so perhaps we need to start rethinking our connection to coal,” Hedges said.

For its part, NorthWestern pointed in a Jan. 17 press release to a later, colder stretch of the cold snap, stressing that it had relied heavily on Colstrip, natural gas plants and hydroelectric dam generation to keep electricity flowing to Montana customers. “Wind and solar generation could not produce much, if any, power during the extreme cold,” wrote NorthWestern spokesperson Jo Dee Black.

In a follow-up email, Black said the decline Hedges noted was the result of Colstrip’s operators bumping up planned maintenance in one of the power plant’s two operational units so both units could operate through the most extreme stretch of cold.

Black also wrote in her initial release that additional generating capacity, like the natural-gas generation plant the company is building near Laurel or the expanded Colstrip stake the company plans to acquire in 2026, would have allowed the company to avoid spending $18 million on energy from other utilities during the cold snap.

Travis Kavulla, a former Republican member of Montana’s utility regulation board who now works as the vice president of regulatory affairs for Houston-based energy company NRG, took to Twitter to critique that latter argument, saying that it’s not necessarily a bad thing for Northwestern to be partially reliant on power purchases — provided the company is smart about how it manages that trading.

“It cannot be expected that Montana would have every single megawatt of capacity it needs to supply the state during the absolute worst hour of the decade. If Montana did, that would mean customers would be paying an absolute fortune,” Kavulla said in a subsequent interview.

Kavulla and other energy analysts routinely note that regulated utilities like NorthWestern have a financial incentive to own and operate as much generating capacity as possible since they typically earn a profit on the infrastructure they own. That dynamic is often criticized as promoting the over-construction of expensive generating plants while discouraging utilities from finding cheaper ways to serve their customers.

The post Cold snap fuels Montana’s coal power debate appeared first on Montana Free Press.

” width=”224″ height=”168″ align=”right” hspace=”10″ alt=”In October 2023, Grizzly Bear 566 weighed in at a whopping 716 pounds, three shy of the Greater Yellowstone record” title=”In October 2023, Grizzly Bear 566 weighed in at a whopping 716 pounds, three shy of the Greater Yellowstone record” />Last fall, Grizzly 566
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The City of Martin, South Dakota and the Oglala Sioux Tribe are at odds over a public records request sent by the tribe.

The City of Martin has asked that the Oglala Sioux Tribe waive its sovereign immunity or pre-pay an undetermined amount of attorney fees and administrative fees for the records it requested. The South Dakota American Civil Liberties Union (ACLU) is challenging this through the South Dakota Office of Hearing Examiners.

On August 25, under the South Dakota Sunshine Act, the tribe requested records relating to potential violations of the Voting Rights Act of 1965, according to the South Dakota ACLU.

The initial request from the tribe asked for an extensive list of documents, each of which span a time range of 20 years, including election results, redistricting maps (boundary changes and reorganization plans), agendas from meetings where redistricting was discussed, any and all analysis of Section 2 of the Voting Rights Act or Gingles factors and more.

On September 11, the City of Martin denied the tribe’s request unless the tribe waived its sovereign immunity and paid upfront for time spent gathering records and attorney fees for 20 years’ worth of records. City representatives said the requested attorney’s fees were included as many of the records required an attorney’s assistance to locate.

After the denial, the tribe got in touch with the South Dakota ACLU. Working with the ACLU, the tribe narrowed the requested records down to a 10-year time frame from 20.

The tribe, represented by the ACLU, Native American Rights Fund and Public Council, is appealing the City of Martin’s stipulations before the South Dakota Office of Hearing Examiners.

The ACLU said the charging of attorney fees and request to waive tribal sovereignty are unreasonable.

“Why do they not want to produce these records without imposing these very stiff, punitive demands on the tribe like making them pay agreed to prepay attorneys fees in an unknown amount and also waive their tribal sovereign immunity,” said Stephanie Amiotte, legal director of the ACLU of South Dakota and a citizen of the Oglala Sioux Tribe, in a phone call. “It certainly begs the question, why aren’t they just producing these records as they would to any other requester if, in fact, everything is in accordance with the Voting Rights Act or the law.”

The City of Martin said it’s asking for attorney’s fees to be charged due to the nature of the documents requested.

“The requests are vague and broad, leaving it difficult for a layperson to determine whether a statutory exception applies,” said Sara Frankenstein, an attorney representing the City of Martin. “Many of the requests require legal analysis as to whether the documents sought are excluded from public disclosure pursuant to South Dakota law. Additionally, the request sought documents spanning over twenty years. Such a huge and broad request is taxing on the City of Martin’s resources and its citizenry. The City of Martin is small, and resources are thin.”

Generally, tribal sovereignty allows tribes to be free from lawsuits whether private or commercial, much like any other nation. The tribe is choosing to pursue action through the Office of Hearing Examiners because it says the conditions sought by the City of Martin are unreasonable or sought in bad faith.

The City of Martin’s legal counsel said the city requested that the tribe waive its sovereign immunity to ensure the request would be paid should it be fulfilled.

“Due to sovereign immunity, the City does not have legal recourse for collecting the applicable fee should the Tribe not pay, and the amount may be substantial if the ACLU continues to demand 20 years’ worth of broad-ranging documents,” Frankenstein said.

Frankenstein also said if the Oglala Sioux Tribe or ACLU refuses to pay for the records request or sovereign immunity is not waived, Martin taxpayers will have to foot the bill.

The ACLU said a request to waive sovereign immunity reflects a larger problem facing Indian Country.

“It really carries bigger implications than that because it amounts to a gradual erosion of the constitutionally protected status as a sovereign nation,” Amiotte said. “We see that every day in attempts by states to take that sovereign status away through encroachment on jurisdictional issues, and just other areas that tribes really do enjoy that status as a sovereign nation to govern in a manner that other governments are allowed to govern.”

Records shared with the Rapid City Journal and ICT suggest the City of Martin did share a January 2022 redistricting map with the tribe; however, no other records will be shared without pre-payment.

“The ACLU’s press release is wildly inaccurate,” Frankenstein said in an email to the Journal and ICT. “First, the City has yet to deny any document requested, other than broadly asserting a general denial that protected or privileged documents will not be disclosed, if the ACLU truly seeks them. The ACLU is not contesting the withholding of protected or privileged documents, so no denial of records is at issue here. In other words, there has been no ‘denial’ to trigger any judicial review.”

The City of Martin and Bennett County are within the exterior boundaries of the Pine Ridge Reservation and are considered by the Department of the Interior to be reservation land. State agencies, however, such as the South Dakota Department of Transportation, generally list Bennett County as not being within the reservation. Census records indicate roughly half of Martin’s population is non-Native.

In 2005, the South Dakota ACLU attempted to sue the City of Martin for Voting Rights Act Violations. After an 11-day bench trial, the claim was dismissed.

The post Voting rights at center of tribal dispute with city appeared first on Buffalo’s Fire.

” width=”224″ height=”168″ align=”right” hspace=”10″ alt=”A barren wheatfield in Malta, Montana, after it was raided by migratory grasshoppers that thrive in drought conditions” title=”A barren wheatfield in Malta, Montana, after it was raided by migratory grasshoppers that thrive in drought conditions” />Following a three-year
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A federal judge has directed Montana Fish, Wildlife and Parks to cut much of Montana’s wolf trapping season in half due to evidence that traps and snares set for wolves unintentionally capture grizzly bears, which are federally protected under the Endangered Species Act.

In a 25-page order, U.S. District Court Judge Donald Molloy wrote that the Flathead-Lolo-Bitterroot Citizen Task Force and WildEarth Guardians established “a reasonably certain threat of imminent harm to grizzly bears should Montana’s wolf trapping and snaring seasons proceed as planned.”

Molloy directed the state to scrap its current season plans for most of the state in favor of more conservative start and end dates. The state’s Fish and Wildlife Commission in 2021 adopted a floating start date to provide some assurance that grizzly bears would be in their dens before traps and snares are set inside occupied grizzly bear habitat.

Molloy heard oral arguments on the conservation groups’ preliminary injunction request on Monday. The plaintiffs filed the lawsuit against the state of Montana, Gov. Greg Gianforte, and Montana Fish and Wildlife Commission Chair Lesley Robinson on Sept. 22.

FWP has recorded more than 20 instances of grizzlies being caught in traps set for other animals since 1988, and an expert for the plaintiffs has documented “numerous other examples” of such incidents, according to Molloy’s order.

Grizzly bear biologists have demonstrated an increase in the number of bears exhibiting “trap-like injuries” since wolf trapping was legalized, the plaintiffs asserted. Grizzly bear biologists noted that in 2021 alone, four different bears were missing body parts, including forelegs and toes, likely due to trapping. Other injuries that can arise from capture in traps and snares include limb fractures and dislocations, as well as tooth and gum damage.

“Each of these untoward events would violate [Section 9] of the ESA,” Molloy wrote, adding that “trapping or capturing an endangered species is an unlawful ‘take’ even if the action does not cause injury or mortality.”

Defendants countered that FWP’s floating start date in grizzly-occupied areas has reduced the likelihood of unintentional grizzly bear capture and injury. They also highlighted other protective measures the Fish and Wildlife Commission has adopted such as restrictions on snaring in lynx protection zones and requirements that trappers use breakaway devices on snares and check their traps every 48 hours.

The state argued that there have been no incidences of a bear caught in a public (i.e., non-research) wolf trap in a decade.

“While Defendants may be correct that there have been no confirmed reports of grizzly bears caught in recreational wolf traps in Montana since 2013, the precise harm at issue in this case has been well-documented in Montana and adjacent states and provinces that share the home ranges of Montana’s grizzly bear populations,” Molloy wrote.

“The Montana Fish and Wildlife Commission remains a clear and present danger to Montana’s carnivores and predators and we look forward to reining them in.”

Flathead-Lolo-Bitterroot Citizen Task Force President Patty Ames

The plaintiffs had also argued that evidence suggests grizzlies are likely to be out of their dens through more of the winter and that trend will only increase as climate change brings warmer winter temperatures to the region.

In an emailed press release cheering the order, the plaintiffs expressed optimism that they’ll prevail on the larger issues in the lawsuit as the case proceeds.

“We are pleased with this order and remain confident we will prevail on the larger merits of the case,” Patty Ames of the Flathead-Lolo-Bitterroot Citizen Task Force said. “The Montana Fish and Wildlife Commission remains a clear and present danger to Montana’s carnivores and predators and we look forward to reining them in.”

In a Facebook post, Gianforte argued that Molloy’s “sweeping order tramples the rights of trappers.”

“Montana has a healthy, sustainable population of wolves and grizzlies, and there has been no incidental takes of grizzlies from wolf trapping in Montana since 2013. And yet misusing ESA protections for the grizzly to thwart the state’s wolf management plan, the activist judge has obstructed the state from responsibly managing wolves based on the sound science of FWP biologists.”

Molloy’s order narrows the 2023-2024 season start and end dates while the lawsuit proceeds. Per his order, wolf trapping and snaring cannot begin until Jan. 1, 2024, and will end on Feb. 15 in FWP’s five westernmost regions. It also applies to Hill, Blaine and Phillips counties.

In areas in and near occupied grizzly habitat, the state had been set to open trapping season sometime between Nov. 27 and Dec. 31 and close it on March 15. The state said it will appeal the order.

The post Judge halves wolf trapping season to protect grizzlies appeared first on Montana Free Press.