26 November 2017 — 0734 mdt
The DNRC’s heist of the FBC’s money may not be legal
Ideally, the Flathead Basin Commission should have been established as a stand alone agency. Instead, the FBC’s enabling act provides that:
The commission is attached to the department of natural resources and conservation for administrative purposes only. [The state employees who maintain the MCA apparently oppose capitalizing proper nouns.]
Attaching the FBC to the DNRC probably was not a cost saving measure. Instead, it may have been a way of working around a staggeringly stupid provision in Montana’s constitution:
ARTICLE VI. THE EXECUTIVE. Section 7. 20 departments. All executive and administrative offices, boards, bureaus, commissions, agencies and instrumentalities of the executive branch (except for the office of governor, lieutenant governor, secretary of state, attorney general, superintendent of public instruction, and auditor) and their respective functions, powers, and duties, shall be allocated by law among not more than 20 principal departments so as to provide an orderly arrangement in the administrative organization of state government. Temporary commissions may be established by law and need not be allocated within a department.
In my judgment, the “…for administrative purposes only.” provision prohibits the DNRC from exercising any policy authority over the FBC. The money the legislature appropriates for the FBC is supposed to be a pass-through, although the DNRC is allowed to take a 12 percent fee for administering the money.
But by denying the FBC the money intended for it by the legislature, the DNRC is nullifying an act of the legislature, and asserting authority over the program of the FBC. Therefore, there’s a good argument that the DNRC’s heist of the FBC’s funds is illegal and could be struck down by a court.
Who would have standing to sue? Presumably the FBC itself, but that might be tricky. But there’s one member of the commission with what I suspect is a bulletproof standing to sue: the representative of the Confederated Salish and Kootenai Tribes.
A court order could restore the FBC’s funding while keeping the FBC attached to the DNRC. That would allow time to pass an amendment removing the 20 departments limitation in the Montana Constitution.
Two bad ideas proposed by some friends of the FBC
The InterLake reports the FBC may be looking to replace the DNRC as an administrative partner, a move that would require amending the law. FBC Executive Director Carolyn Miske identified Lake County and the private Flathead Community Foundation as two possibilities.
Running the FBC through Lake County would diminish the status of the FBC and might cause British Columbia to cease its participation in the commission.
Running the FBC through a private entity would raise questions concerning open records, and would be the first step to converting the FBC to a private organization. That would be a tremendous mistake. Just by existing as an official entity of the State of Montana, the FBC validates the premise that within the Flathead Basin (and other ecologically defined areas) there are trans-jurisdictional issues that are addressed best through an organization that formalizes the process for creating and executing trans-jurisdictional solutions. A private organization would lack that power.