Coal development in Montana and surface rights

There were recently a couple of articles that highlight some competing interests regarding coal mining in Montana. The first is a Daily Interlake editorial decrying the "war on coal" by the EPA, spurred by the closing of a PPL Montana coal plant, with ownership citing EPA regulations as the proximate cause of rendering the plant unprofitable to keep open.

The story is a familiar one -- the plant would have to be refitted to the tune of $38 million in order to meet current regulations. As someone who breathes the air in this part of the Yellowstone Valley and who has experienced some respiratory problems that were new to me until I moved here, I confess that I would want to know a bit more about just how out-of-date the plant is with regard to emissions before completely dismissing the EPA's standards as unreasonable.

Still, it seems inescapable that the editors are correct that the current bunch at the EPA have "declared war" on coal.

Rick Hill landed a nice body blow to Steve Bullock in the debate the other night on this very topic:

Hill used his question to attack Bullock’s record on coal development, asking why Bullock failed to join 24 state attorneys general from coal-producing states this year when they challenged new Environmental Protection Agency rules Hill said would harm coal-fired power plants.

It seems as though Bullock has a problem choosing which battles to fight. He could tilt at windmills by trying to take down Citizens United singlehandedly. But he couldn't be bothered to file a brief against Obamacare in spite of that law's unpopularity in Montana, and he wouldn't join in challenging EPA coal regulations in spite of his claim to support coal development.

I digress, however. The other article that was interesting to note was this piece in the Washington Post regarding the conflicts that some Montana ranchers are having over coal development.

The strip mining of coal is, without a doubt, the most unpleasant kind of energy resource development to have in one's backyard, since its footprint is so large. It is not a permanent footprint, given modern regulations about the restoration of the soil and landscape, but for a given generation, it probably feels like forever while it goes on.

The fundamental problem, however, is the American system of decoupling surface rights from mineral rights. I am fortunate to own the rights on my own ranch, but not all ranchers are blessed in that way. One thing is certain (at least to me) -- nothing, and I mean nothing, should be allowed to compromise the long-term viability of agricultural activity on anyone's land. Oil wells will eventually run dry, coal beds will be stripped, natural gas will be bled off. But as long as the rain falls and the sun shines, and as long as the soil is pure and ground water is uncontaminated, agriculture can go on -- theoretically forever, if things are taken care of. It is the ultimate renewable resource.

The point here is that while perhaps our legal system shouldn't allow a limitless veto power to surface owners, they should have a powerful say about what mining and drilling happens on land they own -- precisely because they and their descendants will be ranching and farming that land long after the resources beneath the ground are gone. If ranchers are trying to block coal development, it seems pretty clear that they as surface owners aren't being compensated fairly and their concerns aren't being adequately addressed.

While readers of Montana Headlines know that I am pretty bullish on traditional energy development, this is one place where I have to cast my vote with the sometimes curmudgeonly Cattle Queens (and Kings) of Montana.

What’s fair in death -- and in death taxes? (Hint: check with Governor Schweitzer and Senator Tester)

We all know that the only sure things in life are death and taxes, but that doesn’t mean that anyone stops trying to find loopholes to avoid both.

In an interesting op-ed in the Kalispell Daily Interlake, the editors take a cane to Montana Governor Brian Schweitzer for his expressing sympathy for the fate of Ron Smith, on death row for the murder of two young Native American men in 1982. According to the editorial, the governor may use his power as governor in these waning months of his administration to reduce Smith’s penalty to life in prison (Smith originally sought the death penalty for himself but has subsequently had second thoughts.)

The editors conclude:

The governor was quoted as saying in the Associated Press story last week that he keeps “coming back to this question of what is fair” and said “I don’t know what is fair.”

If that is really true, then the governor isn’t in any position to make a judgment of this importance. And if he finally does come to realize what is fair, then Ron Smith will have to accept his fate at the executioner’s hand just the way he forced Thomas Running Rabbit Jr. and Harvey Mad Man Jr. to accept theirs.

They have a compelling point -- by any reasonable standard, someone who willfully deprives another of his life has forfeited any right to his own. The state may choose not to deprive him of it, but he can’t claim to have a “right” to live. Pretty much the entirety of the human experience would seem to agree with this viewpoint. The Christian tradition in the West introduced concepts of mercy and forgiveness to what had been a much harsher punitive landscape, but it has always acknowledged the right of civil authority to use the death penalty, even while it has urged restraint in its use.

As I wrote some years ago, I personally oppose the death penalty for a number of reasons, but in keeping with that Christian tradition, I also believe strongly that the civil authority is not acting immorally when it decides that it is necessary. Most importantly, the power of pardon should not be used to keep the death penalty from being implemented -- if you want to remove the death penalty from the list of punishments available to Montana’s juries and judges, use the legislative process, not a stroke of a governor's pen.

The right of kings to grant pardons and to commute sentences is as old as civil society. It is a part of that set of Burkean “prescriptions and prejudices” -- i.e. traditions that have developed over centuries to meet a society’s needs. That royal privilege of granting pardons has carried through into Anglo-American traditions of common law and constitutional law, and is exercised by our heads of state -- the President and the 50 state governors.

While we might disagree with particular pardons by presidents and governors, it is an important safety valve for any humane society to have one man (I use the word in its inclusive sense) holding the power to correct miscarriages of justice that slip through our system of laws and courts -- a system that is the best the world has seen and yet is imperfect because we humans are imperfect.

Was there a miscarriage of justice in this particular case? That is the question the governor must ask himself after examining all of the evidence. How Governor Schweitzer exercises the royal privilege he holds lies on his conscience, and his alone.

* * * * *

And now for taxes -- specifically death taxes. We read that Senator Jon Tester has belatedly co-sponsored a stand-alone bill to exempt farmers and ranchers from the massive increase in estate taxes that will kick in once he and Senator Baucus and the rest of the Democrats in the U.S. Senate allow the Bush tax cuts to expire.

We will leave aside discussion of an obvious question: why should a family farm or ranch be protected from having the state confiscate its assets upon the owner’s death, while other kinds of family businesses are beneath Sen. Tester’s notice?

Moving on, though, this is of course a naked act of self-preservation by Sen. Tester in a rural state like Montana. It might even seem laudable, but really, it doesn’t reflect well on Tester at all.

Montana Farm Bureau Federation President Bob Hanson nailed the issue on the head when he said the following:

"I hope it passes because it’s what needs to be done,” Hanson said. “But if it needs to be done, why wasn’t it in the first bill?"

Indeed. It isn’t like it was some state secret that President Obama intended to let the Bush tax cuts expire, and that Montana farmers and ranchers would find their land in jeopardy as a result. As a U.S. Senator from a rural state (and one who trumpets his farming credentials far and wide, no less), Tester should have been all over this from the start -- which was four years ago, when Obama was elected President. We’re only hearing about this now?

By all rights, as a self-proclaimed advocate for agriculture and “the only farmer in the U.S. Senate," Tester should have been providing leadership, both working behind the scenes and publicly using his bully pulpit, to make sure it would never come to this point -- where at the 11th hour, a quick-fix stand-alone bill has to be rushed into consideration to keep farmers and ranchers from having their family land devastated by confiscatory estate taxes.

It’s only been 6 years, but it seems that Sen. Tester has already been in Washington too long.

Montana yahoo embarrasses state on national stage

It’s Wednesday and time for a little Montana politics (and no, the photo on the right is not of the yahoo, but of the guy who got yahooed.)

So here’s the story. This big Hollywood producer who has a home in Montana gets an invite to speak at a small Montana high school. Amazingly enough, even though these movie types who own homes in Montana tend to live behind locked gates and have unlisted phone numbers, he actually says yes. An incredible opportunity for kids to hear from someone who made it big, right?

But then things turn darker -- there is at least one parent who is worried that an impressionable child might be indoctrinated with this Hollywood guy's political views. Complaints are made to the principal at the last minute, and the administrator caves. The producer is met at the door, and is essentially told, “guess what, consider yourself disinvited -- yeah, I know you drove an hour and a half to get here, but sorry, gotta protect children from guys like you.”

Those dang Montana yahoo right-wing nut-jobs and their obsessions with Hollywood liberal political bias, right?

Well, actually not...

It is rather amusing that this time it was lefties who censored what the tender ears of high school seniors in Ronan might hear. We all know that kids in high school these days lead very sheltered lives, and need protection...

Gerald Molen had been invited to speak to the senior class at Ronan... before he was disinvited. Molen was born in Great Falls and now is a semi-retired 77 year-old living in Bigfork. In between, he made a movie or two, including five Steven Spielberg films. His producing credits include Rain Man, Days of Thunder, Hook, Jurassic Park, Minority Report... and his Schindler’s List won an Oscar. Put simply, he was not a Hollywood lightweight.

He’s a very bad man, though. After all, he has a rather skeptical view of President Obama, and is making a film based on Dinesh D’Souza’s book The Roots of Obama’s Rage. Was Molen planning on political indoctrination? No, he was planning on a motivational talk to the kids, not that the principal bothered to ask before leaving Molen’s talk on the school’s cutting-room floor. The principal claims that he didn’t know how the talk would be “tied into the curriculum.” He also claims that he lets parents know about such things so they can opt their kids out. Come again? So the kids in Ronan -- population 1,812 -- have a chance to hear from a big-time movie producer and talk to him about his work, and their teachers had something more compelling and educational on the schedule?

Molen rightly labeled all of this a “lame excuse” in an op-ed he penned for the Kalispell Daily Interlake. Let’s play out this scenario a bit: suppose David Letterman, Tom Brokaw, or another liberal media star that owns a home in Montana accepts an invitation to talk to Ronan’s seniors. Are we seriously to believe that the principal would have demanded a copy of the talk and made sure that the talk would be “tied into the curriculum?” Or let’s say that Sen. Jon Tester, Sen. Max Baucus, or Gov. Brian Schweitzer agreed to talk to the kids about their work in Washington. If Republicans objected on the grounds that something partisan might be said, would the principal have met the planned speaker at the door on the day of the talk, letting him know that his talk had been nixed? Maybe so -- these sorts of hypotheticals are always in the realm of the unknowable -- but if so, it would be pretty silly of the parents to complain and even sillier of the principal to cave in to the pressure.

I remember when Pixar animator Bud Luckey, a Billings native, came to talk to kids at our local high school. It was an inspiring experience for the kids to get to hear from someone who had reached the highest levels of his craft in the movie industry. Granted, it didn’t really occur to me that the creator of Woody might try to indoctrinate my kid into some sort of liberal Hollywood perfidy. Even if it had, I would have trusted him to be respectful, keep an open mind, and laugh with me after the fact about any left-wing goofiness that he encountered.

The Ronan story has since gone viral, and Montana gets another moment in the national spotlight that is even more embarrassing than the governor’s crude comments about Mitt Romney’s father growing up on a “polygamy commune.”

As a final note, it was predictable perhaps that when the story first showed up on the radar of Montana’s Lee Newspapers, the headlines were not about the yahoo administrator who behaved so boorishly toward a distinguished guest, but rather about the yahoos in the “sick part of society” (as Molen put it when asked for a comment) who decided it would be fun to send anonymous threats to the principal.

So it all ended up following the preferred script (so to speak,) as far as The Missoulian, et al, were concerned -- by the time it was over, the controversy really was somehow all about those right-wing nut-jobs after all.

Sunday roundup and branding -- the Gazette, and beyond...

Image Courtesy of www.old-picture.com

Guided tour of that lodge outside of Helena: Chuck Johnson tells us more details about the dealmaking session between a few Republican House members and executive branch staff, and what led up to it. According to Johnson:

(The governor) thought he negotiated a handshake deal with then-House Majority Leader Michael Lange, R-Billings, in the waning days of the regular session. Lange abandoned the deal after other Republican leaders trashed it. Then Lange attacked Schweitzer in a profanity-laden tirade to fellow House Republicans.

It will be interesting to hear Republican comments on that. Lange is understandably licking his wounds after the session and keeping a low profile, but it would be good to hear his side of that particular story -- Johnson doesn't tell us whether he tried to get Lange's version of whether it was reasonable for the governor to believe that he had a "handshake deal."

As a side note, Republicans had better not eat their own when it comes to Mike Lange. If he is willing to run again for the House, count Montana Headlines in for a vote of support. A review of Montana Headlines archives will show a consistent theme of the utter necessity for rhetorical restraint and discipline on the part of the Republican leadership -- and hence an unequivocal vote of no confidence after the YouTube incident. Such a review will also, however, show a consistent appreciation for Lange's hard work and approval of the discipline and restraint shown by Lange early in the session.

Lange had an impossible task, and he isn't the only guy who might have blown his top under conditions of fatigue and high pressure late in a session like this. If he can win his district, it would make no sense whatsoever not to have his experience as a legislator -- although probably not in leadership -- two years from now.

The title of Johnson's piece talks about the Republican party being "torn," which is probably an overstatement. One hopes that predictions of primary election challenges to the "moderates" doesn't turn out to be the case. We need every Republican we can get, especially ones that have proven that they can win a general election.

Someone else is hoping that Republicans follow a script of waging a civil war, though: "Schweitzer looks for 'a hotly debated battle for the heart and soul of the Montana Republican Party' over the next year."

Speaker Scott Sales is right to identify this and similar statements from Democrats as "trying to incite people."

Anyway, back to that lodge outside of Helena. "They divided into 'pods,' with each group of working on one topic: budget, taxes, school funding and energy."

In the end, Schweitzer was mostly pleased with what the special session did.

Really?

"Llew Jones and John Ward are tough negotiators," he said. "They got more done in a couple of days than the rest of the caucus got done in 85. When you shake hands with Llew Jones and John Ward, there's no question what you've got."

Because of the deal, $30 million in general fund spending requests was chopped from the budget passed by the Senate, including $10 million from the Corrections Department and $4 million from the Revenue Department. The way schools were funded was changed more to the Republicans' liking.

If that's tough negotiating, then Republicans are in real trouble if we ever get into negotiations when we don't have a $1 billion surplus to blow. It is also interesting to note how the numbers keep dropping. The first report was that the budget went down from $7.9 billion to $7.85 billion, or $50 million. Later reports cited a $40 million reduction. Now we are down to a $30 million reduction in general fund spending. That is a decrease of less than 1% in general fund spending, or 0.4% in the context of of a $7.9 billion dollar budget.

It is hard not to worry that it will be down to $20 million by next week.

To use the analogy of dickering over the price of a $30,000 car, 0.4% would be a savings of $120 dollars. Tough negotiating indeed. The very phrase "chopped from the budget" by Johnson is misleading, to be generous. "Lightly scuffed off the surface of the budget" is more like it.

Johnson says that Speaker Scott Sales "believes Schweitzer's staff snookered the Republican moderates at Ward's lodge. Schweitzer got virtually everything he wanted, he said, while Republicans would up with scraps."

At least one of the "moderates" involved in the deal doesn't have a view that is much different:

Asked if he was satisfied, (Rep. John) Ward said, "Satisfied is way too strong. It was time to be done. Some good things, from my perspective, came out of it. Obviously, I believe the governor got a lot more. He had two (the governor's office and the Senate) of the three power centers."

This is more like it. There was certainly a case to be made (whether one agrees with it or not) for just giving the executive what it wanted and being done with the session, since it was clear that real compromise wasn't going to happen. And Ward is to be commended for being straightforward in describing what happened as such.

It is also interesting that Ward describes the state Senate as being a power center that belongs to the governor. It is not, unfortunately, an inaccurate description, and that perhaps is the real story of this session.

Montana's Senators oppose amnesty for illegal immigrants: Holding their metaphorical fingers to the Montana political wind, both Senator Baucus and Senator Tester appear to be poised to vote against the grand "comprehensive immigration reform" bill.

Sen. Tester gave a reasonably clear statement through a spokesman:

"He does not support amnesty. He believes that we need to strengthen our ports and borders, that folks that want to come to this country need to get in line no different than his ancestors did, and we need to crack down on employers who are knowingly hiring illegals."

Sen. Baucus had a similarly clear response -- with the usual, and reasonable, caveat that he hasn't seen the legislation -- he shouldn't feel bad, neither has anyone else:

"But I will not support any legislation that does not include strong border enforcement for both the northern and southern borders," Baucus said in a prepared statement. "I do not support amnesty for illegal aliens, and any immigrant who wants to become a citizen must pay back taxes, learn English, and go to the back of the line." (Our emphases)

While progressives/liberals are perceived as surging in Montana, it is gratifying to hear our Democratic Senators, for now, using talking points about this immigration bill that could have been published in American Conservative -- they must know something about the Montana electorate's opinions on this subject.

For Baucus in particular, such a clear statement is telling, since it puts him at odds both with his K-Street corporate donors and with the amnesty-friendly progressive mainstream. We suspect that he's reading Montana voters quite correctly.

Likewise indicating his understanding of the views of most Montanans is Baucus's vote, joining Republicans, against requiring the Army Corps of Engineers to factor in global warming into all project analyses.

It is the last two years of Baucus's term, so he'll be voting with Republicans a lot.

Whiskey's for drinking, water's for fighting: Ya just gotta love a good water war out here in sagebrush country. For folks new to the intermountain west, the water war between Montana and Wyoming may seem esoteric, but this is serious business --

Wars have been fought for less.

In its lawsuit, Montana Justice Department attorneys describe the conflict as "a dispute between states of such seriousness that it would amount to 'casus belli' if the states were fully sovereign. Casus belli is defined as an act or circumstance that provokes or justifies war."

The compact, which was endorsed by Congress, constitutes a treaty, Montana argues.

"Violation of a treaty is one of the classic occurrences giving rise to war," the lawsuit said.

The battle will be fought in courtrooms, and the weapons will be thousands of pages of legal documents. And it's likely to stretch on longer than the wars in Vietnam or Iraq. Some interstate water disputes remain unsettled for decades.

Settle back with a whiskey (put that water on your vegetable garden) and watch this one -- and find a comfortable chair.

For those who are curious about the historical aspects of western water law, a couple of good books to read while waiting for dispatches from the front in this particular water war are Walter Prescott Webb's The Great Plains and Marc Reisner's Cadillac Desert.

Renaming Glacier National Park: The Missoula-based National Environmental Trust is having a contest to rename Glacier National Park. Now we know where Sen. Tester got that line.

As the Daily Interlake editorial points out, Glacier's glaciers have been melting for thousands of years, and that "it is misleading to suggest that... policy changes, no matter how draconian, will 'save' Glacier’s glaciers."

There are good reasons to keep working rationally on decreasing emissions of all kinds into the atmosphere -- a stunt like this isn't, however, one of them.

Sunday roundup and branding -- the Gazette, and beyond...

Image Courtesy of www.old-picture.com

HB 808 finally passes: As we stated yesterday, the political landscape has changed now that the Montana House has passed a reasonable version of HB 808. Now that all 8 appropriations bills have been passed by the House in accordance with House rules, the Senate has the duty of going to work on them.

Democrats aren't too happy that the GOP managed to put a bill together without their help, with Sen. Mike Cooney making the disparaging comment that it was "too little, too late."

Again, Democrats complained about the contents of the bill, but have no excuse, since amendments and votes would have been welcomed. It has been pretty easy to be a Democratic House member this session when it comes to the grind of appropriations bills and the appropriations committee -- just mindlessly vote "no," and leave the work of amending the bills into workable compromises in content to the Senate.

Speaking of the Montana Senate...: Charles Johnson has this to say about the Senate's version of partisanship, and we hope that it holds true in the coming weeks:

The Senate, thank goodness, is still the Senate, the good old reliable Montana Senate. Through thick or thin, whether Democrats or Republicans are in control, the two sides in the Senate can disagree on issues, but usually do so in an agreeable way.

Most senators even seem to actually like and respect most of their counterparts on the other side of the aisle. As an example of the Senate's collegiality, the one party had takeout dinners delivered to the other party during the long days right before the transmittal deadline last month. The next night, the other side reciprocated.

If that happened in the House, nobody would touch the food. They'd be afraid the other party had sprinkled arsenic on it.

Biodiesel hazards: Alternative energy sources are a must for America. Wind, geothermal, biodiesel, you name it. Alternative energy sources that arise competitively in the open market without the need for government subsidies are of course the most desirable, since they will be financially sustainable.

Tom Howard's piece demonstrates the complexities of the issue of biodiesel. The most important section of the piece is right at the end, however:

Ultimately, economics could derail Montana's efforts to develop biodiesel, Ulledalen said. Most plants producing ethanol and biodiesel are being built in the Midwest, where corn and oilseeds are plentiful and rail traffic is readily available.

There is a simple reason why corn and oilseeds are plentiful in the Midwest: rain. Corn ethanol production in particular is , if anything, destructive to Montana agriculture, since we are a state of corn consumers, not corn producers. The ethanol industry gets a 51 cent/gal. tax credit -- let the implications of the enormity of that subsidy sink in for a minute. This is driving up the price of corn for Montana's livestock producers.

Biodiesel has more promise, since dryland crops can be put to use in producing it, but we suspect that it is probably still a pipedream to have much bio-fuel coming from Montana. We should concentrate on what we do have: Wind, oil, coal, and gas -- traditional as well as "clean and green."

The Bitterroot truth: It seems that Steve Woodruff of the Missoulian is giving Ed Kemmick of the Gazette a run for his satirical money. Good stuff.

Jore watch: now the Democrats like him...

According to an informative and wide-ranging article in the Kalispell Daily Interlake, Rep. Doug Cordier, D-Columbia Falls, is quoted as saying this about Jore's position as the deal-maker in the conservative caucus in Helena: “...in some ways, I’m glad it’s Rick who’s in that position. He’s certainly not going to be pressured by anybody.”

Yes, the same Democratic Party who ruthlessly demonized Jore before the session is now pretty happy that Jore isn't going to make things easy for the Republicans to pass their 6 appropriations bills.

Fairness point: we have not done enough research to know if Cordier himself was one of those decrying Jore. We're rather assuming, based on this article, that he probably was a Democrat who was fair in any criticisms of Jore he may have voiced.

Cordier goes on to say some sincerely gracious things about Jore that are worth quoting.

Cordier, a career educator with the Columbia Falls school district, backs Jore up about fairness.

“He is very upfront, he’s transparent and he’s good to his word,” Cordier said. “I would much rather work with a gentleman like Rick rather than someone who has an unstated agenda and is masquerading as someone else.”

“He’s not sinister,” Cordier said. “It just happens he and I don’t agree on how to view our education system.”

Whatever else might be said, no-one can contest the fact that Jore has made this legislative session far more interesting to follow. We're glad he's in Helena this month and not back at his trout farm.