Groups say Transportation Commission decision violated Open Meetings Law
HELENA - An environmental organization and some labor unions on Monday asked a state district judge in Helena to strike down state Transportation Commission's decision halting $38.5 million of highway projects last month because the public wasn't informed about the meeting or given a chance to participate.
At a press conference at the Helena Labor Temple, Jim Jensen, executive director of the Montana Environmental Information Center, and Gene Fenderson, lobbyist for Montana Joint Heavy and Highway Committee comprising three unions, released copies of a lawsuit they filed before District Judge Jeffrey Sherlock of Helena.
The commission canceled the highway projects because Transportation Department officials believed an environmental ruling last month by U.S. District Judge Don Molloy of Missoula stops the state Department of Environmental Quality from issuing water discharge permits that highway contractors need. Transportation officials said the ruling jeopardizes an additional $100 million in projects scheduled to be awarded by year's end.
In the lawsuit filed Monday, the groups contend that the Transportation Commission, a part-time body appointed by Gov. Marc Racicot, violated Montana's Open Meetings Law and constitutional and state requirements that the public be allowed to participate before agencies make decisions that might affect them. They want another meeting that would be publicized in advance and one in which people could comment on the proposed action.
"Their action at that meeting threatens hundreds of jobs for highway construction workers, and we would have had plenty to say about that if we'd had proper notice of the meeting," said Fenderson, whose committee represents the Laborers, Operating Engineers and Teamsters unions. "We want their action declared illegal, and we want another meeting held, with proper notice and comment."
Jensen said a list of the proposed projects showed that a number of them aren't subject to the federal judge's order. A count showed that only about one-third of the projects - 56 out of 151 - are affected by Molloy's order.
"By acting so prematurely, the commission has made a political football out of this situation when they should have taken the time to do the research and then make a decision on each individual highway project," Jensen said.
Molloy has scheduled a hearing Friday in Missoula on the state's request that he issue a stay stopping implementation of his order.
Transportation Director Marvin Dye declined to comment until he had a chance to read the complaint.
Transportation Commission Chairman Thorm Forseth of Billings said the commission has a meeting scheduled Wednesday in Helena, and hopes to get all sides together to discuss the related issues.
However, Forseth said he doesn't envision the commission taking any action to reverse its decision when the matter is pending before Judge Molloy..
"I think for us to make any action before he rules or looks at this thing would be precipitous," he said.
Tim Reardon, chief legal counsel for the Transportation Department, said the commission made the decision in a telephone conference call Sept. 29 under the exceptions in the in the citizen participation laws after learning the ruling would affect highway projects. He said exceptions in the law allow an agency to maintain or protect the interests of the agency, which include the filing of a lawsuit or becoming a party in an administrative proceeding.
Molloy ruled that the state Department of Environmental Quality wasn't enforcing a law that requires it to enforce the Total Maximum Daily Load (TMDL) limit for the Clean Water Act. Molloy prohibited the U.S. Environmental Protection Agency and the state from issuing any more water discharge permits until a TMDL allocation has been made for every impaired water body in the state.
TMDL refers to the total amount of pollutants from all sources that can be discharged in state waters without violating water-quality standards. DEQ has until 2007 to develop TMDL for all waters listed as threatened or impaired.