In Week 11: Gravel Pit Permitting, Mental Health Bills, Cigar Bars and More

"Open Cut 2.0" Bill would Ease Regulations on Gravel Pit Permit Applications

A bill seeking to ease permitting requirements for gravel pits in rural areas and make it harder to call a public hearing on new facilities is drawing clear battle lines in the Montana Legislature, as property owners say it cuts them out of the process.

In a hearing that lasted for more than two hours on Monday, March 15, the bill's sponsor, Rep. Steve Gunderson, R-Libby, called the bill -- House Bill 599 -- "Open Cut 2.0," which he said built off the provisions of "Open Cut 1.0," a bill passed in the 2019 session. Open-cut mining, also known as open-pit mining, is a surface mining technique used to retrieve sand, gravel, and other widely-used minerals.

The bill makes numerous changes to the open-cut mine permitting process. Under HB 599, the percentage of households near a proposed mine that must request a public meeting with the Department of Environmental Quality in order for one to be held is raised from 30% to 51 percent. Additionally, where mine operators were previously required to give notice to all nearby property owners of the planned mine, that's been changed to all "occupied dwellings," cutting out landowners without anyone actively living on their property.

HB 599 would also allow mine operators to change the use of their land once it's been reclaimed without notifying the public, allows them to push reclamation of the mine back by five years after submitting a request to the department, and remove some regulations regarding wildfire prevention and water pollution that proponents said are redundant in state law.

The House of Representatives passed HB 599 on a party-line, 67-32 vote during the House's sprint to advance bills before the transmittal deadline March 2 -- a point made by one of the bill's opponents who said lawmakers should take a closer look at the changes it promises.

The bill drew support from sand and gravel companies and the Montana Contractors Association. Proponents said gravel makes up a critical aspect of daily life, from paved roads to building materials and more, and that the bill would help keep costs in those associated industries down by facilitating the permitting of more mines.

Mike Newton is an operations manager at Fisher Sand and Gravel in Glendive and told the committee that 85 percent of sand and gravel operations in the state are rural -- HB 599 is seeking to ease permitting for those operations.

"House Bill 599 is a win-win for the counties, the cities, the [Montana Department of Transportation] and the [Department of Environmental Quality]" Newton said. "This bill will save tax dollars."

However, several homeowners who said they were already feeling the impacts of new open cut sites near their property testified against the measure alongside the Montana Building Industry Association, calling it a "lose-lose" and comparing the language of the bill to a "sledgehammer."

Colleen Moullet and her husband Tim Moullet spoke against the bill, saying a company had proposed a new gravel pit less than a quarter mile away from their home near Huntley and had denied them and three other homeowners a public meeting before the permit was later approved. Colleen told the committee she was concerned the new gravel pit would potentially "wipe out" their well.

"I think this is a lose-lose situation for all Montanans that own land next to a gravel pit, because it just takes away our voice -- our say-so," Tim Moullet said.

Other opponents, including Fred McMurray, also from Huntley, said facilitating more gravel pit permits would put the value of their property in danger.

"We stand to lose groundwater in the region, and that could absolutely bankrupt the value of our ag-producing land," McMurray said

Archie Harper testified in opposition to the bill on behalf of the West Valley Citizens Alliance Network and said proposed gravel pit operations in Helena's West Valley posed threats to the livelihoods and quality of life of the people living there.

"You know what I found brings Montanans of all social and political stripes together, and quicker than a Montana sunrise? Have one of these operations set up next door in a heavy, residential, developed area," Harper told the committee. "Protect our property rights and our property values. Protect our day-to-day livelihoods and our right to a clean and healthful environment. And moreover, never disable, encumber, or obstruct our right to participate in any process having serious ramifications on our lives and properties. All these elements are under assault with House Bill 599."

The "Open Cut 1.0" bill referenced by Gunderson was Senate Bill 343, signed into law by former Gov. Steve Bullock in 2019. That bill introduced potential penalties for open cut mines that did not follow reclamation requirements, among other changes.

Some members of the committee took issue with the requirement for "occupied dwellings" to exist on a piece of property in order for the property owner to be considered in the calculation for a public hearing. In a lengthy exchange, Sen. Bob Brown, R-Thompson Falls, raised the issue with Rep. Gunderson, asking him if Brown would be counted toward the percentage needed to call a public meeting if he owned property near a potential gravel pit site but did not live there or have others living there. Gunderson deferred to Brian Thompson of the Montana Contractors Association, who said concerns from property owners can be lodged "at any time" with the Department of Environmental Quality. Brown repeated that the lack of opportunities for property owners to trigger a public meeting still concerned him.

If the committee approves the bill, it will head to the full Senate for additional debate.

Montana Legislature Advances Some Mental Health Bills, Tables Others

While lawmakers have advanced several bills aimed at increasing access to mental health services in the state, a panel tabled one measure last week after opponents lined up to testify against it, saying it would likely do just the opposite.

Rep. Scot Kerns, R-Great Falls, sponsored House Bill 619, which debuted in the House Taxation Committee on Tuesday, March 16. The bill would have required that nonprofit hospitals in cities with more than 20,000 people provide free mental health services equal in value to their property tax exemption annually, or that exemption would be revoked. However, the committee tabled the bill following overwhelming opposition from hospitals and medical associations.

In his opening remarks, Kerns predicted the bill would draw some opposition, but he said his bill would help reduce suicide rates in Montana, which are consistently among the highest in the nation. Kerns also noted that the bill only applied to hospitals in larger cities, as he predicted the requirement could put strain on rural hospitals.

Opponents said it would cause the same result Kerns was trying to avoid: putting undue burden on rural hospitals in providing mental health services.

Rich Rasmussen, CEO of the Montana Hospital Association, said the new requirement would destroy collaborative community health plans by consolidating psychiatrists in large hospitals. He also said the bill would strip resources the hospital invests in other areas of need, like substance abuse.

"This bill says that Helena knows better," Rasmussen told the committee. "Helena says, 'You must focus on mental health services.' That has an impact in the community."

In closing, Kerns raised an issue he had with the size of the total property tax exemption for the state's hospitals and said he wished it was more narrowly directed toward mental health services.

"$15.869 million, these nine hospitals receive in property tax exemptions," Kerns said. "Which is fine. All I'm saying is, with this bill, that they step up and provide, at no cost, mental health care for our communities."

The bill was not the first measure this session looking to tackle the mental health crisis in Montana, nor the first attempt by Kerns, a first-year lawmaker and Lutheran pastor. Kerns sponsored a bill earlier in the session that would have created psychiatric "opportunity zones" designated by the state as areas in need of additional mental health providers and granted providers working in those zones an income tax credit. A House committee tabled the bill in late February.

However, two other mental health bills sponsored by Kerns are advancing through the Legislature. The House passed House Bill 490 on a 68-31 vote, mostly down party lines. That bill would allow for the licensure of mental health workers in Montana so long as they are licensed in good standing in another state. House Bill 549, passed by the House in a near-unanimous vote, would require that the state include specific data on former and current military service members in its biennial suicide reduction plan.

For Kerns, the effort is a personal one. During his service as a chaplain in the U.S. Air Force until January 2020, he said he personally experienced the suicides of several service members and witnessed the devastation a lack of mental health support can cause. In an interview, he said he believes the solution lies in one-on-one, ongoing access to mental health services, which he hopes some of his legislation can help achieve.

"I think there needs to be an all-hands approach to figuring out how to address this mental health crisis that we have in Montana," Kerns said in an interview.

The Legislature has so far had little appetite for mental health bills sponsored by Democrats, however. The House defeated a bill sponsored by Rep. Moffie Funk, D-Helena, in early February on a 50-50 vote that would have allowed schools to implement a "handle with care" program for students who experienced traumatic events. On March 11, the House also defeated House Bill 369, sponsored by Rep. Mary Caferro, D-Helena, on another narrow 49-51 vote. That bill would have allocated part of the state alcohol tax to fund school-based mental health promotion programs.

Lawmaker Looks to Allow Consideration of Sex in Insurance Ratemaking

Insurance companies in Montana may soon be able to offer different premium rates based on an individual's sex, if a measure moving through the state Legislature is signed into law.

House Bill 379, sponsored by House Majority Leader Sue Vinton, R-Billings, adds a clause to a section of state law that prohibits insurance companies from offering discriminatory plans to people based solely on their sex. The new language would not longer make it "a violation of the prohibition against sex discrimination" for a company to use "accepted ratemaking methodologies based on sex" when determining a plan's premium.

The House of Representatives passed HB 379 on a 70-28 vote in late February, and the Senate Business, Labor and Economic Affairs Committee heard arguments on the bill on Wednesday, March 17. During the hearing, Vinton said Montana has been the only state in the nation since 1985 to prohibit insurance companies from considering sex when setting rates, and that the prohibition has led to negative impacts to women, who she said often pay higher insurance premiums.

Other states have restricted gender from being considered in specific types of insurance. Insurance information site The Zebra indicates, based on calls with insurance regulators in each state, that Montana is one of six states where gender is a prohibited factor for consideration in auto insurance ratemaking, alongside California, Hawaii and a few others.

"House Bill 379 will help consumers have access to the best insurance and retirement products on the market that are properly rated to their risk," Vinton told the committee.

Current law in Montana prohibits insurance companies from assessing actuarial data -- data compiled by experts to determine risk -- based on a person's sex. A 2010 report from British economic consulting company Oxera indicated that there are a number of statistical risk factors correlated to sex. The report found that women are less likely to be involved in car accidents and more likely to live longer, and if insurance companies can't consider those factors in ratemaking, women often face more expensive car insurance and pension plans relative to their risk.

State Auditor Troy Downing said as much during his testimony in support of the measure, where he told committee members the bill was the result of many conversations with insurance agencies around the state during his campaign. He added that he believed more balanced rates would bring businesses into the state that previously suffered "sticker shock" at current insurance premiums.

"Women in Montana are paying higher rates than their risk, and this corrects that problem," Downing said.

The bill drew support from several insurance providers and lawyers who said the law would bring Montana in line with other states and stop driving potential business away.

Helena financial planner Dan Sullivan testified in support of the bill and told the committee a story about a couple he'd once helped purchase life insurance. Sullivan said the couple applied for $500,000 of life insurance in Montana for one partner, a woman who was 55 years old. When they applied for the same amount from the same company out of state, the rate was 22% cheaper.

"Every other state that has adopted unisex life insurance rates -- there's been seven of them -- they've all rolled them back," Sullivan said. "I urge you, for the sake of consumers in Montana, to pass this bill."

No one testified in opposition to the bill during its Senate hearing.

During debate on the House floor in late February, Rep. Andrea Olsen, D-Missoula raised concerns that the bill would introduce gender discrimination in ratemaking, leading to young men paying higher car insurance premiums while saying older women already receive the same value of annuities as men.

"Montana's non-gender insurance law has been in effect for nearly 40 years," Olsen said. "Please don't return gender bias to insurance."

The committee approved HB 379 on a 9-2 vote, and the bill is now heading to the full Senate for additional debate.

Funding Changes a Possibility for Montana's Community Colleges in Proposed Bill

A Montana lawmaker who said the previous formula the state used to fund community colleges "just didn't fit" is sponsoring a bill that would change that formula -- and is winning the support of community college presidents along the way.

Rep. Llew Jones, R-Conrad, serves as the chair of the House Appropriations Committee and is sponsoring House Bill 67. After clearing the House of Representatives on a bipartisan, 97-3 vote, the Senate Education and Cultural Resources Committee heard testimony on the bill on Wednesday, March 17.

The bill totally restructures the funding scheme for Montana's 12 community colleges, offering what Jones called a "modernized" approach to determining how much the state pays out to the colleges each year. Under the new formula, funding is based on how much a school predicts its enrollment of full-time students will increase or decrease over the subsequent two years, multiplied by the rate of inflation and by a "weighted" amount of different student types.

During the hearing, Jones called the addition of a weighted measurement of full-time equivalent students a "cool part" of the formula. Jones told the committee that career and technical education courses are typically more expensive than regular academic courses in community colleges due to expensive equipment and smaller class sizes. Under the new formula, the number of students enrolled in career and technical education programs could be multiplied by a factor determined by the Legislature each session when appropriating funds for the colleges, giving more money the more students a community college has enrolled in technical programs.

Jones said he worked hard with the state's community colleges to come up with a formula that would win them over. Several community college presidents testified in support of the bill, and no colleges opposed the measure in the Senate.

"This formula, I believe, will fit better," Jones said. "We worked out so that community colleges are more comfortable with it. I think it's the right thing to do."

The bill also provides for a fallback in the event a college inaccurately predicts how many full time students enroll over the next two years. If a college underestimates enrollment, the state will pay the college the amount it would have received from an accurate prediction. If a college overestimates enrollment, it will be required to pay the state back the amount it received extra.

The previous formula for calculating how much state money community colleges received tied individual colleges to the funding other state 2-year and 4-year schools received per student over a 6-year average. That meant an individual community college, even if its enrollment drastically increased or decreased over several years, could not receive more or less funding per student than a bit more or less than the average funding per full-time Montana student at any state college or university.

The presidents of Dawson Community College in Glendive and Flathead Valley Community College in Kalispell expressed their support for the bill, saying it would provide them with more stability and flexibility year to year, and thanked Jones for working with them during the drafting process.

"I support House Bill 67 and greatly appreciate how it rewards enrollment growth and the potential [career and technical education] incentive," said Dawson Community College President Scott Mickelsen.

The new formula would take effect on July 1, 2023, giving enrollment time to "stabilize" after a tumultuous year of drops due to COVID-19 according to Jones.

Bill Seeking to Create "Cigar Bars" in Montana Tabled After Drawing Fire from Healthcare Professionals

A Senate committee tabled a controversial bill on Friday, March 19 that would have allowed "cigar bars" in Montana after healthcare professionals said it would be a dangerous revision to the 2005 Clean Indoor Air Act.

House Bill 285, sponsored by Rep. Jeremy Trebas, R-Great Falls, would have permitted cigar smoking in bars that generate 10 percent of their income from cigar sales. This would mark the first major revision to the Clean Indoor Air Act, which went into effect in 2009 and prohibited smoking in all public indoor areas and workplaces.

The House passed the bill on a 55-43 in February before it moved to the Senate. While it permitted smoking cigars in bars that meet its requirements, HB 285 would not have allowed other products to be smoked indoors, such as cigarettes or marijunana.

During its Senate hearing, three of the measure's supporters said it would expand freedom of choice for Montanans and provide a place of gathering and relaxation for cigar smokers.

Patrick Webb, a representative of the Libertarian group Americans for Prosperity, spoke in support of HB 285, calling it a "good freedom bill" and saying cigar bars could bring fulfillment to the lives of some Montanans.

"That fulfillment is so important," Webb said. "I mean, that is something that really actually can build people up."

Lake County resident Gage Henderson said the provision that requires cigar bars to make 10 percent of their income from cigar sales will ensure that not every bar can allow cigar smoking.

"Overall, I feel that this is a long-overdue change to Montana law," Henderson said. "Montanans want the ability to choose the things they participate in."

Twelve opponents from the healthcare industry and health advocacy groups warned lawmakers that cigar bars would lead to increased cancer, lung disease and heart disease rates -- and not just in bar patrons, but in workers and children who inhale secondhand smoke.

Dr. David King spoke against the bill and said he'd been working as a physician in Belgrade since 1984. Back then, he said, patients were allowed to smoke in their hospital rooms, and he told the committee he had seen patients "drink, eat, drug and smoke themselves to death."

"Frankly, the hardest is watching people who are suffocating from not being able to breathe," King said. "I think the workers in any facility deserve a right to work in a clean-air environment. I think this is an extremely dangerous and irresponsible act."

Bella Childre, a junior at Bozeman Gallatin High School and advocate for the Campaign for Tobacco Free Kids, also opposed the measure and said she sees enough of her classmates smoking and vaping already without the state providing more venues to allow that to occur.

"We shouldn't be glamorizing and normalizing tobacco when it causes so much death and disease," Childre said.

During the hearing, Sen. Tom McGillvray, R-Billings, said he was concerned that cigar bars could lead to increased Medicaid expenses in the Department of Health and Human Services due to a potential increase in smoking and the health effects that would cause. Trebas said the 50% tax Montana collects on tobacco products could help defray that cost, and stated he believed the people most interested in cigar bars would be "higher income people who aren't on Medicaid."

The bill is considered dead unless the committee votes to reconsider.

Austin Amestoy is a reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation. He can be reached at [email protected].