06/23/2026
DA 25-0498
Case Number: DA 25-0498
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 134
TREASURE COUNTY, MONTANA,
Plaintiff and Appellee,
v.
RUTH LAURA EDLUND,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Treasure, Cause No. DV-2024-06
Honorable Rennie L. Wittman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Ruth Laura Edlund, Self-Represented, Hysham, Montana
For Appellee:
Susan B. Swimley, Swimley Law Firm, Bozeman, Montana
Tara DePuy, Attorney at Law, PLLC, Livingston, Montana
Submitted on Briefs: April 29, 2026
Decided: June 23, 2026
Filed:
Clerk
Justice Katherine M. Bidegaray delivered the Opinion of the Court.
¶1 Ruth Laura Edlund appeals the April 2025 order of the Montana Sixteenth Judicial
District Court, Treasure County, denying her motion for partial summary judgment and
granting the motion of Treasure County, by and through its Board of County
Commissioners (the County), for summary judgment declaring Edlund’s proposed county
ordinance invalid. We address the following restated issues:
1. Whether the District Court correctly concluded that Edlund’s proposed
ordinance was invalid under § 7-5-135, MCA.
2. Whether the District Court issued an advisory opinion.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On June 4, 2024, Edlund submitted to the County a petition for an election on a
proposed citizen initiative. The proposed initiative sought voter approval of a county
ordinance “to outline a permitting process for wind energy conversion systems” (WECS)
in Treasure County. Among other things, the ordinance would apply to WECS over
100 feet tall or producing 250 kilowatts per hour or more, and would regulate setbacks,
audible sound, ice-throw, shadow-flicker, water supplies, lighting, tower height, facility
finish, and facility location. The ordinance would also govern wildlife impacts,
abandonment and site remediation, timelines for construction, required liability insurance,
and county indemnification. The ordinance would provide for a permitting process,
including application requirements, notice to adjoining property owners, an opportunity for
public hearing and comment on initial application, requests to extend construction periods,
2
modifications of existing permits, and permit approval by the Board of County
Commissioners. The ordinance would provide for an appeal process from permit denial
limited to specific classes of aggrieved parties. Finally, the ordinance would impose a
$10,000 per-day fine for non-compliance, as well as permit denial/revocation and/or
facility decommissioning. The ordinance purported to regulate WECS “while providing a
balance between private interests and public concerns.”
¶3 On June 26, 2024, the County sent Edlund notice of approval of the petition as to
form. In the letter, the County noted a citation error. Edlund’s ordinance quoted language
from § 7-5-2101, MCA (“general authority of county commissioners”), as authority for the
ordinance, but mis-cited § 7-5-201, MCA (“operation of self-government consolidated
units of local government”), so the County suggested she correct the citation. The letter
also advised Edlund that the County intended to challenge the validity and constitutionality
of the proposed action under § 7-5-135, MCA (2023).1
¶4 On July 3, 2024, the County filed a district court “Complaint for Declaratory Relief”
pursuant to §§ 7-5-135 and 27-8-201, et seq., MCA, seeking a declaratory judgment that
Edlund’s proposed ordinance was invalid and unconstitutional.
¶5 On July 5, 2024, Edlund sent the County a letter withdrawing her June 4, 2024
petition and submitting a new petition that incorporated some minor revisions, including
correcting the citation to § 7-5-2101, MCA, and adding a citation to § 7-5-131, MCA
(2023) (“right of initiative and referendum”), as authority for the ordinance. On July 26,
1
In 2025, the Legislature repealed §§ 7-5-132, -133, -134, and -135, MCA, and amended § 7-5-131, MCA. If not otherwise noted, all references to those statutes are to the 2023 versions.
3
2024, the County notified Edlund it had approved the petition as to form. The County
again advised it would challenge the proposed action under § 7-5-135, MCA.
¶6 On August 1, 2024, the County filed an “Amended Complaint for Declaratory
Relief” pursuant to §§ 7-5-135 and 27-8-201, et seq., MCA, again seeking a declaratory
judgment that Edlund’s proposed ordinance was invalid and unconstitutional. As pertinent,
the County alleged that the proposed ordinance:
(1) was invalid because it purported to regulate land use under the County’s
“general powers” where the County’s authority to limit, restrict, and control
the use of land was specifically prescribed by Title 76, chapter 2, parts 1 and
2, MCA (citizen- and county-initiated zoning);
(2) was invalid because it purported to regulate land use in ways governed by
and/or contrary to other existing laws; and
(3) was unconstitutional because it purported to regulate land use without any
opportunity for public comment or participation in violation of constitutional
right to know, right to participate, and regulatory-takings principles.
¶7 On August 29, 2024, Edlund answered, generally denying the County’s allegations
and claiming that the County’s suit was meant to challenge the constitutionality of the
citizen-initiative process and limit the subject matter of proposed citizen initiatives. In her
answer, she asked for a declaration that the ordinance was valid and constitutional in its
entirety. To the extent any portion was invalid or unconstitutional, Edlund asked the court
to sever those portions pursuant to the ordinance’s severability clause.
¶8 The District Court set a trial schedule. After discovery, Edlund filed a “Motion for
Partial Summary Judgment Regarding Constitutionality of Proposed Ordinance” in
February 2025. Acknowledging that either invalidity or unconstitutionality of the proposed
ordinance was dispositive under § 7-5-135, MCA, Edlund urged the court to resolve
4
constitutionality before reaching validity because doing so “would dispose of th[e] entire
action and also act as a bar to any future local initiatives on the subject.”2 In turn, Edlund
said the proposed ordinance was constitutional because: (1) “the County has the power to
adopt and enforce regulations . . . that affect the use of land”; (2) § 7-5-131, MCA, places
no limitations on land-use subject matter; (3) the ordinance substantially complied with the
County’s growth policy; and (4) the power of initiative is not constrained by constitutional
rights to know and participate and, in any event, the petition and election processes
provided opportunity for public participation. Conversely, she argued that reading
§ 7-5-131, MCA, to exclude citizen-initiated ordinances regulating land use would
unconstitutionally constrain the people’s power of initiative.
¶9 A few days later, the County filed a “Motion for Summary Judgment.” In it, the
County denied that its § 7-5-135, MCA, action was a challenge to the citizen-initiative
process; instead, the action was to determine whether Edlund’s proposed ordinance would
be valid and constitutional if made law, a question which necessarily encompassed the
ordinance’s subject matter. See Ravalli Cnty. v. Erickson, 2004 MT 35, ¶ 15, 320 Mont.
31, 85 P.3d 772. The County reasserted that the ordinance was invalid and unconstitutional
for all the reasons stated in its complaint, including, as pertinent, that it purported to
regulate land use under the County’s general powers where Title 76, chapter 2, parts 1 and
2, MCA, specifically provide for citizen- and county-initiated land-use regulations.
2
In contrast, Edlund said that if the court found the ordinance invalid, she could simply refile a new initiative “with revised wording.”
5
¶10 After full briefing and oral argument, the District Court issued its decision in April
2025. Reading Edlund’s “partial” summary judgment motion as encompassing the entire
legal question presented under § 7-5-135, MCA, the court construed her motion as one for
“complete” summary judgment. Then, because the court could resolve the question
presented—“whether the proposed action would be valid and constitutional”—on the
validity issue, it declined to reach the constitutionality issue. The court concluded, among
other things, that Edlund’s proposed ordinance was invalid because it purported to regulate
land use under the County’s general powers where a specific statutory scheme existed for
citizen-initiated land-use and zoning regulations under Title 76, chapter 2, part 1, MCA.
Accordingly, the court granted summary judgment to the County on invalidity and denied
Edlund’s motion.
¶11 Edlund appeals pro se.
STANDARD OF REVIEW
¶12 This case presents review of a summary judgment decision entered in a
proceeding for declaratory judgment under § 7-5-135, MCA (2023). We review district
court interpretations, applications, and conclusions of law de novo for correctness.
Gardiner-Park Cnty. Water & Sewer Dist. v. Knight, 2024 MT 121, ¶¶ 12-13, 417 Mont.
1, 549 P.3d 1151; City of Great Falls v. Dir. of Dep’t of Pub. Health & Human Servs.,
2002 MT 108, ¶ 10, 309 Mont. 467, 47 P.3d 836.
DISCUSSION
¶13 Edlund contends that the District Court erred by (1) granting summary judgment
on the invalidity of the ordinance and declining to rule on its constitutionality;
6
and (2) rendering an advisory opinion on citizen-initiated zoning. She says the court
should have concluded that the ordinance was valid and constitutional and “approved it for
inclusion on the ballot” rather than “urging” her “to create a citizen-initiated zoning
district.”
¶14 1. Whether the District Court correctly concluded that Edlund’s proposed
ordinance was invalid under § 7-5-135, MCA.
¶15 The District Court concluded that Edlund’s proposed ordinance was invalid for
several reasons. We affirm on the narrow ground that this ordinance, as drafted, would not
be a valid exercise of the County’s legislative jurisdiction and power if voters approved it.
The ordinance creates a detailed countywide WECS land-use permitting, enforcement,
penalty, and decommissioning regime; but it invokes the County’s general powers under
Title 7, chapter 5, MCA. Those general powers remain subject to “limitations and
restrictions as are prescribed by law” and apply only “where no other provision is made by
law.” Section 7-5-2101, MCA. Because the Legislature has specifically prescribed county
authority over land-use and zoning regulation in Title 76, chapter 2, MCA, and because the
proposed ordinance contains operative provisions exceeding statutory authority, the
District Court correctly declared the proposed ordinance invalid under § 7-5-135, MCA.
¶16 Our holding is narrow. We do not hold that local electors may never use initiative
power for a measure affecting land use. We hold only that this proposed ordinance, as
drafted, cannot proceed because it does not rest on valid statutory authority and because its
central permitting and enforcement provisions exceed the County’s legislative jurisdiction
and power.
7
I. Statutory Frameworks
Title 7, Chapter 5: Local Government “General Operation and Conduct of Business”
¶17 Title 7, MCA, governs “Local Government,” including a local government unit with
self-governing powers governed by a board of county commissioners, like Treasure
County. See Title 7, chapter 1, parts 1 and 21, MCA; Mont. Const. art. XI; see also
§ 7-4-2101, et seq., MCA (boards of county commissioners).
¶18 Title 7, chapter 5, MCA, governs local governments’ “general operation and
conduct of business,” and part 1 governs “local government ordinances, resolutions, and
initiatives and referendums.” As pertinent, this part provides for two types of ordinances:
those submitted to the local governing body for adoption by a majority of its voting
members, §§ 7-5-103, -104, -105, -106, MCA, and those proposed by “the electors of a
local government” for approval by “a majority of those voting on the question” at the next
local government general election, §§ 7-5-131, -132, -133, -134, MCA (2023).
¶19 The second type of ordinance, a citizen-initiated ordinance, is at issue here.
Section 7-5-131(1), MCA (2023), provides that:
[T]he powers of initiative and referendum are reserved to the electors of
each local government. Resolutions and ordinances within the legislative
jurisdiction and power of the governing body of the local government may
be proposed or amended and prior resolutions and ordinances may be
repealed in the manner provided in 7-5-132 through 7-5-135 and 7-5-137.[3]
3
In 2025, the Legislature amended § 7-5-131(1), MCA, to provide that “[r]esolutions and ordinances within the legislative jurisdiction and power of the governing body of the local government may be proposed or amended and prior resolutions and ordinances may be repealed in the manner provided in 7-5-137 and Title 13, chapter 28.” The Legislature repealed §§ 7-5-132, -133, -134, and -135, MCA. See 2025 Mont. Laws ch. 225, §§ 18, 26. Title 13, chapter 28, MCA, newly enacted in 2025, governs “local government ballot issues,” and incorporates parts of the repealed §§ 7-5-132 through -135, MCA. See Mont. Laws ch. 225.
8
Accord Mont. Const. art. XI, § 8 (“The legislature shall extend the initiative and
referendum powers reserved to the people by the constitution to the qualified electors of
each local government unit.”); art. V, § 1; art. III, §§ 4, 5. Section 7-5-131(2), MCA,
identifies certain subject matters to which “the powers of initiative do not extend,” none of
which expressly include matters of land use or zoning.
¶20 Sections 7-5-132, -133, and -134, MCA, outline the procedure for a citizen-initiated
ordinance. “The electors of a local government may, by petition, request an election on
whether to enact, repeal, or amend an ordinance.” Section 7-5-132(1), MCA. Once a
petition complies with the requirements of § 7-5-134, MCA, and is approved “as to form,”
“all petition signatures must be collected and filed within 90 days.” Section 7-5-134(7),
MCA; see also § 7-5-134(3), (4), MCA (ballot statements and statements of voting
implications must be prepared by county officer and included with the petition).
“A petition signed by at least 15% of the local government’s qualified electors is sufficient
to require an election.” Section 7-5-132(1), MCA.4 “If a majority of those voting on the
question approve the proposal, it becomes effective when the election results are officially
declared, unless otherwise stated in the proposal.” Section 7-5-132(6), MCA.
¶21 Section 7-5-135, MCA, permits a governing body to challenge the action
contemplated in a citizen petition; it “may direct that a suit be brought in district court by
the local government to determine whether the proposed action would be valid and
4
But see § 7-5-133, MCA, providing that the governing body may “take the action called for in the petition.” If it does, “the question need not be submitted to the electors,” but if it does not, “then the question must be submitted to the electors at the next regular or primary election.”
9
constitutional.” Section 7-5-135(1), MCA. “The suit must be initiated within 14 days
of the date a petition has been approved as to form” under § 7-5-134, MCA.
Section 7-5-135(1), MCA. The 90-day period for signature gathering begins upon
resolution of the suit. Section 7-5-135(4), MCA.
¶22 Finally, because § 7-5-131(1), MCA, permits only proposed ordinances “within the
legislative jurisdiction and power of the governing body of the local government,” we turn
to § 7-5-2101, MCA, which prescribes the “general authority” of the governing body at
issue here, a board of county commissioners. To wit:
The board of county commissioners has jurisdiction and power, under such
limitations and restrictions as are prescribed by law, to represent the county
and have the care of the county property and the management of the business
and concerns of the county in all cases where no other provision is made by
law . . . [and] to perform all other acts and things required by law not
enumerated in this title or which may be necessary to the full discharge of
the duties of the chief executive authority of the county government.
Section 7-5-2101(1)-(2), MCA; see also §§ 7-1-104, -111, -112, -114, -116, -117, MCA
(further prescribing the powers of local government units, including “powers denied” and
powers requiring specific legislative delegation).
Title 76, Chapter 2, Part 1: Citizen-Initiated “Planning and Zoning”
¶23 Title 76, MCA, governs “Land Use,” including, under chapter 2, “planning and
zoning.” At the county level, zoning may be either citizen-initiated, § 76-2-101, et seq.,
MCA (part 1), or county-initiated, § 76-2-201, et seq., MCA (part 2). Accord Williams v.
Bd. of Cnty. Comm’rs, 2013 MT 243, ¶ 37, 371 Mont. 356, 308 P.3d 88. Part 1 provides
a specific statutory process for citizen-initiated county planning and zoning. “On petition
of 60% of the affected real property owners in the proposed district” and “whenever
10
the public interest or convenience may require,” a board of county commissioners may
create a planning and zoning district and a county planning and zoning commission
(CPZC). Section 76-2-101(1), (4), MCA.5,6 The CPZC then prepares a “development
pattern” and adopts a “development district,” including recommendations for land use and
zoning, after public notice and hearing. Sections 76-2-104, -106, MCA.7 The CPZC may
submit draft resolutions, including zoning and land-use regulations, to the board of
county commissioners “for the purpose of carrying out the development district[].”
Section 76-2-107(1), MCA; accord § 76-2-104(2), MCA.8 Part 1 expressly reserves
land-use permitting authority to the CPZC, which may “authorize and provide for
the issuance of permits as a prerequisite to construction, alteration, or enlargement of
any building or structure” and “establish and collect reasonable” permitting fees.
Section 76-2-108, MCA.
¶24 Part 1 separately governs enforcement and judicial review. Section 76-2-113,
MCA, authorizes county proceedings to prevent, restrain, correct, or abate violations of
5
See also § 7-1-101(1), (2)(b), (5), MCA (how a board of county commissioners creates a “commission”); § 76-2-102, MCA (CPZC organization and operation).
6
A citizen-initiated “planning and zoning commission” created pursuant to § 76-2-101(1), MCA, is not to be confused with a “planning board” created pursuant to Title 76, chapter 1, part 1, MCA, for the purpose of preparing a comprehensive master “growth policy” and advising the subject governing body on matters related to growth and development. See, e.g., §§ 76-1-101, -102, -103, -104, -106, -107, MCA; Title 76, chapter 1, part 6, MCA (growth policies).
7
If the CPZC “is unable to make and adopt a development pattern or to adopt a development district,” the board of county commissioners “may adopt a resolution to void” the “planning and zoning district created” under § 76-2-101, MCA. Section 76-2-107(2), MCA.
8
Compare §§ 76-2-109, -114, MCA (limits on CPZC land-use regulations).
11
part 1 or resolutions adopted under part 1. Section 76-2-110, MCA, permits “any person
aggrieved by any decision of” the CPZC or board of county commissioners to appeal to
district court within thirty days. Part 1 also provides a specific citizen-initiated referendum
process for terminating a planning and zoning district. That referendum process applies to
real property owners in the zoning district and registered electors residing in the zoning
district. Section 76-2-118(1)-(2), MCA; see also § 7-5-131(1), MCA (citizen-initiated
referendums).
Title 76, Chapter 2, Part 2: County-Initiated “Zoning”
¶25 Title 76, chapter 2, part 2, MCA (part 2), separately provides for county-initiated
zoning. A board of county commissioners that has established a county planning board,
§ 76-1-101, MCA; established the planning board’s jurisdictional area, § 76-1-501, MCA;
and adopted the planning board’s recommended growth policy, §§ 76-1-603, -604, MCA,
may “adopt zoning regulations for all or parts of the jurisdictional area in accordance with
the provisions” of Title 76, chapter 2, part 2. Sections 76-2-201(1), -202(1), MCA.9
¶26 The board of county commissioners “may regulate the erection, construction,
reconstruction, alteration, repair, location, or use of buildings or structures or the
use of land” “[b]y establishing zoning regulations.” Section 76-2-202(1)(a), MCA.
County-initiated zoning regulations “must be made in accordance with the growth policy”
9
Like with the creation of a citizen-initiated “planning and zoning district” under part 1, “an action challenging the creation of a zoning district or adoption of zoning regulations” under part 2 “must be commenced within 6 months after the date of the order by the board of county commissioners creating the district or adopting the regulations.” Section 76-2-202(1)(b), MCA; compare § 76-2-101(1), (4), MCA.
12
and meet other specific criteria, including “promot[ing] public health, public safety, and
general welfare.” See §§ 76-2-203(1)(a)-(b), (2)-(4), -209, -212, -240, MCA.10
¶27 County-initiated zoning regulations are subject to public notice, public inspection,
and public hearing requirements. Section 76-2-205(1)-(3), MCA. First, after public notice,
inspection, and hearing, the board of county commissioners may pass a “resolution of
intention . . . to adopt zoning regulations for the district,” § 76-2-205(4), MCA; then, the
board must publish notice of the resolution of intention and receive public comment from
real property owners within the district, § 76-2-205(5), MCA; finally, the board may adopt
the resolution “establishing the zoning regulations for the district,” § 76-2-205(6), MCA.
¶28 Unlike part 1 citizen-initiated zoning, which reserves permitting authority to the
CPZC, part 2 county-initiated zoning authorizes the board of county commissioners to
“provide for the issuance of location or conformance permits and may collect a fee for each
such permit.” Section 76-2-207, MCA; compare § 76-2-108, MCA. Enforcement of
county-initiated zoning regulations is similar but not identical to enforcement of
citizen-initiated zoning regulations. Compare §§ 76-2-210, -113, MCA. Part 2 makes “a
violation of [part 2] or any resolution adopted pursuant thereto . . . a misdemeanor”
punishable by up to a $500 fine and six-month jail sentence. Section 76-2-211, MCA;
accord § 7-5-109(1), MCA (authorizing local government to penalize ordinance violations
10
Section 76-2-204(1), MCA, further provides that a board of county commissioners “shall require the county planning board . . . to recommend boundaries and appropriate regulations for the various zoning districts” and “make written reports of their recommendations to the board of county commissioners, but such recommendations shall be advisory only.”
13
by no more than a $500 fine and six-month jail term). Conversely, part 1 creates no such
express penalty.
¶29 Also, unlike part 1, part 2 directs the board of county commissioners to establish a
“board of adjustment.” Sections 76-2-221, -222, MCA. The board of adjustment hears
and decides appeals concerning alleged errors in zoning enforcement and exceptions to
zoning regulations and may grant variances where “a literal enforcement . . . will result in
unnecessary hardship.” Sections 76-2-223(1)(a)-(c), (2), -208, -224, -226, MCA; compare
§ 76-2-106(2), MCA (board of county commissioners authorize variances in part 1
citizen-initiated zoning). Board of adjustment proceedings and records must be public.
Section 76-2-225, MCA.11
¶30 Part 2 provides that the board of county commissioners may establish process for
appeals from decisions of the board of adjustment to the board of county commissioners.
Section 76-2-227(1), MCA; compare § 76-2-107(1), MCA. Even if there is no
intermediate appeal process established, any person aggrieved by a board of
adjustment or board of county commissioners’ decision may appeal to a “court of
record.” Section 76-2-227(2)-(5), MCA (appeal is by petition for writ of certiorari);
compare § 76-2-110, MCA (appeal from board of county commissioner or CPZC decision
to district court).
11
Part 2 also authorizes the board of county commissioners, at its discretion, to create an advisory “zoning commission” as “an optional method of amending any zoning regulations.” Section 76-2-220(1), MCA. If created, the zoning commission, composed of at least five citizen-members, will hold public hearings and make recommendations to the board of county commissioners. Section 76-2-220(2), MCA.
14
¶31 Finally, as with citizen-initiated zoning, county-initiated zoning may be undone
by referendum. Like the part 1 referendum process, the part 2 referendum process applies
to real property owners in the zoning district and registered electors residing in the
zoning district. Section 76-2-229, MCA; see also § 7-5-131(1), MCA (citizen-initiated
referendums).12
II. The Invalidity of Edlund’s Proposed Ordinance
¶32 The district court inquiry under § 7-5-135, MCA, is whether the proposed
citizen-initiated action would be valid and constitutional if it became the law. This inquiry
requires examination of the subject matter of the proposed action. Ravalli Cnty., ¶¶ 15-19.
The Proposed Ordinance Regulates Land-Use and Creates a Permitting Scheme
¶33 Here, the proposed ordinance’s stated purpose is “to outline a permitting process”
and establish “standards” for WECS in Treasure County. The ordinance would apply to
“construction and operation” of WECS, including towers, blades, turbines, transmission
lines, cables, wires, accessory buildings, landscaping, fencing, screening, and parking
areas. The ordinance would regulate: “public safety” (setbacks, water supplies, signage,
12
While not directly at issue here, we note that the Legislature has also separately enacted the Montana Land Use Planning Act (MLPA), Title 76, chapter 25, MCA. The MLPA promotes “a system of comprehensive planning,” including by “coordinated and planned growth” at the local level through establishment of a local “planning commission” and “land use plan.” Sections 76-25-102, -104, -201, MCA. Under the MLPA, local governments are authorized to “regulate the use of land” by adopting “zoning regulations” that must substantially comply with the “land use plan.” Sections 76-25-301, -303, -304, MCA. The MLPA requires a local government to “provide continuous public participation when adopting, amending, or updating a land use plan or regulations.” Section 76-25-106, MCA. Local governments that comply (either municipalities of a certain population size that must comply or smaller-population local governments that elect to comply) are not subject to the separate provisions of Title 76, chapters 1 or 2, MCA. Section 76-25-105, MCA.
15
ice-throws, and audible sound); “compatibility with adjoining land uses and
scenic resources” (setbacks, tower height, facility visibility, exterior finish, lighting,
shadow-flicker, groundwater impacts, and noxious weed management); “wildlife”
(impacts on migratory birds, bats, and endangered or protected species); facility
“abandonment” (re-use, transfer, and removal); and “indemnification and insurance”
(county indemnification, $100 million per-occurrence liability insurance, and non-waiver
of liability arising out of firefighting expenses).
¶34 The ordinance would also provide a “permitting process,” establishing application
requirements; required consultation with county, state, and federal agencies; a $1,500
per-WECS (“wind tower”) application review fee; public notice, comment, and hearing on
permitting applications; and permit approval by the Treasure County Board of County
Commissioners. The ordinance would also regulate “construction periods” with approved
time-extensions only after public notice and hearing, and “modification of existing
permits” only upon similar public notice and hearing requirements. “Non-compliance”
with the ordinance “shall result in fines of $10,000 per day, permit denial or
revocation, . . . and facility decommissioning.” The ordinance provides for appeals from
a Board of County Commissioners’ decision to district court by “aggrieved parties,”
including the property owner, property owners within two miles of the facility, the tower
operator, or any party who can establish specific interest and injury.
16
¶35 Edlund’s proposed ordinance regulates land use, growth, and development and is
therefore, effectively, a land-use and zoning ordinance.13 While land-use and zoning
ordinances are generally “within the legislative jurisdiction and power” of a board of
county commissioners, § 7-5-131(1), MCA,14 that jurisdiction and power over land-use
and zoning regulations is specifically prescribed by Title 76, chapter 2, parts 1 and 2,
MCA.15 When, as here, a county ordinance creates a land-use permitting and enforcement
scheme for structures and land uses, it must rest on statutory authority that allows the
County to administer and enforce that scheme.
The Specific Provisions of Title 76, Chapter 2, Control Over the General Provisions of Title 7, Chapter 5
¶36 To the extent that specific and general statutory provisions conflict, a particular
statutory intent controls over a general one. Section 1-2-102, MCA; State v. Smith, 2004
MT 191, ¶ 17, 322 Mont. 206, 95 P.3d 137. “When two statutes deal with a subject,
one in general and comprehensive terms, and the other in minute and more definite terms,
13
See Egan Slough Cmty. v. Flathead Cnty. Bd. of Cnty. Comm’rs, 2022 MT 57, ¶ 32, 408 Mont. 81, 506 P.3d 996 (zoning “is a form of regulation that promotes the general public health, safety, and welfare of the whole community by, among other things, separating incompatible land uses and regulating growth and development”).
14
See, infra, Greens at Fort Missoula, LLC v. City of Missoula, 271 Mont. 398, 897 P.2d 1078 (1995).
15
And, though not at issue here, the MLPA also governs local government land-use planning and zoning regulations, Title 76, chapter 25, MCA.
17
the more definite statute will prevail to the extent of any opposition between them.”
Smith, ¶ 17; State v. Feight, 2011 MT 205, ¶ 21, 306 Mont. 312, 33 P.3d 623.16
¶37 A board of county commissioners has general “jurisdiction and power” under
Title 7, chapter 5, “to represent the county and have the care of the county property and the
management of the business and concerns of the county in all cases where no other
provision is made by law” and “to perform all other acts and things required by law not
enumerated in this title or which may be necessary” to fully discharge its duties.
Section 7-5-2101, MCA. That general “jurisdiction and power,” however, is subject to
“such limitations and restrictions as are prescribed by law” and applies only “where no
other provision is made by law.” Section 7-5-2101, MCA. As it pertains to land-use and
zoning authority, a board of county commissioners’ “jurisdiction and power” is more
specifically prescribed elsewhere in Montana’s code. We must read Title 7, chapter 5,
general local government powers, and Title 76, chapter 2, local government zoning powers,
together to give effect to both. To the extent of any opposition between them, as is the
rule, the specific powers created by and described in Title 76, chapter 2, control over the
general powers described in Title 7, chapter 5, as to matters of land use and zoning.
16
Also, “a general statute which does not expressly affect a previously enacted specific statute has no effect on the earlier specific statute, unless intent to repeal the earlier specific statute is either clearly manifested or unavoidably implied by irreconcilable differences created by the continued operation of the statutes.” Trustees, Carbon Cnty. Sch. Dist. No. 28 v. Spivey, 247 Mont. 33, 36, 805 P.2d 61, 63 (1991). Most provisions of Title 76, chapter 2, parts 1 and 2, predate § 7-5-131, MCA, enacted in 1977, and nothing in §§ 7-5-131 through -135, MCA, purports to repeal— expressly or impliedly—the provisions of parts 1 or 2. Accord Clark Fork Coalition v. Mont. Dep’t of Natural Res. & Conservation, 2021 MT 44, ¶ 60, 403 Mont. 225, 481 P.3d 198 (the Legislature “is presumed to be aware of all of its enactments”).
18
¶38 Edlund correctly notes that § 7-5-131(2), MCA, does not list land use or zoning
among subjects excluded from local initiative. We therefore do not read § 7-5-131(2),
MCA, to impose a categorical land-use exception. The limitation arises instead from
§ 7-5-131(1), MCA, which permits local initiatives only for ordinances “within the
legislative jurisdiction and power” of the governing body. The question is not whether an
initiative may ever affect land use. The question is whether this ordinance, as drafted,
would be within the County’s legislative jurisdiction and power if voters approved it.
¶39 The people’s power of initiative, while broadly construed,17 remains constrained by
the local governing body’s “legislative jurisdiction and power” and by the requirement that
the proposed action be valid and constitutional. Sections 7-5-131(1), -135, MCA; accord
Cottonwood Envt’l L. Ctr. v. State, 2024 MT 313, ¶¶ 14-16, 419 Mont. 457, 560 P.3d 1227
(“the initiative power at any level . . . has constraints”). Section 7-5-131, MCA, allows
local electors to propose ordinances within that authority.
¶40 We must construe § 7-5-131, MCA, and Title 76, chapter 2, MCA, in harmony, if
possible, to give effect to both. State v. Triplett, 2008 MT 360, ¶ 25, 346 Mont. 383,
195 P.3d 819. We can do so here. Section 7-5-131, MCA, preserves local initiative power
for ordinances within the governing body’s legislative jurisdiction and power. Title 76,
chapter 2, MCA, defines and limits county authority over land-use and zoning regulation.
Reading the statutes together preserves initiative power without allowing an initiative to
17
Town of Whitehall v. Preece, 1998 MT 53, ¶ 18, 288 Mont. 55, 956 P.2d 743.
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confer substantive authority on a local governing body that the Legislature has not
provided.
The Proposed Ordinance Exceeds the County’s Authority
¶41 Edlund’s proposed ordinance purports to empower Treasure County’s Board of
County Commissioners to regulate construction and operation of WECS in the county and
approve, conditionally approve, or deny WECS permit applications. But Treasure
County’s Board of County Commissioners does not have “legislative jurisdiction and
power” under Title 7, chapter 5, or Title 76, chapter 2, parts 1 or 2, to implement or enforce
such an ordinance.
¶42 First, the ordinance is not a county-initiated zoning regulation under Title 76,
chapter 2, part 2, MCA. Even if, as Edlund claims, the ordinance “substantially complies”
with the County’s growth policy, the ordinance was not established and adopted pursuant
to §§ 76-2-202(1)(a), -203, and -205, MCA; it cannot be enforced pursuant to § 76-2-210,
MCA; it is not subject to the board-of-adjustment procedure required by §§ 76-2-221(1),
-223(1), and -208, MCA; its $10,000 per-day penalty provision conflicts with
§§ 76-2-211 and 7-5-109, MCA; and its judicial appeal provisions differ from those
provided under § 76-2-227(2)-(5), MCA. Treasure County’s Board of County
Commissioners has permitting authority under part 2 only as provided by § 76-2-207,
MCA. The proposed ordinance therefore would not be valid or enforceable as a part 2
county-initiated land-use or zoning regulation.
¶43 Second, the proposed ordinance is not a land-use regulation adopted under Title 76,
chapter 2, part 1, MCA. Nothing in the record indicates that the Board of County
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Commissioners, on property-owner petition, created a planning and zoning district or
appointed a CPZC under § 76-2-101, MCA. The ordinance was not prepared by a CPZC
for the purpose of carrying out a development district. Sections 76-2-104, -106, -107,
-113, MCA. It assigns permitting authority to the Board of County Commissioners,
although part 1 assigns permitting authority to the CPZC. Section 76-2-108, MCA. It does
not provide for variances under §§ 76-2-105 and -106(2), MCA. Therefore, the proposed
ordinance would not be valid or enforceable as a part 1 land-use or zoning regulation.
¶44 Edlund contends that the County cannot now argue that the proposed ordinance is
invalid because it invokes the Board of County Commissioners’ “general authority” under
§ 7-5-2101, MCA, where the County “instructed” her to cite that provision. First, the
record shows that Edlund included the quoted language from § 7-5-2101 before the County
noted the mis-citation. Second, the ordinance’s invalidity does not turn on Edlund’s
citation to § 7-5-2101 alone. An incorrect or incomplete citation would not, by itself,
invalidate an otherwise valid initiative. The problem is substantive: the controlling
question is whether the ordinance’s operative provisions would fall within the County’s
legislative jurisdiction and power if voters approved it. Here, the proposed ordinance
creates a permitting and enforcement system that the Board of County Commissioners
would have to administer if voters approved it. The Board has no general authority to
implement that system outside the limitations and procedures prescribed by law. Section
7-5-2101, MCA.
21
Edlund’s Authorities Are Distinguishable
¶45 Edlund and the County cite numerous cases in support of their arguments, but none
squarely answer the validity question presented under § 7-5-135, MCA. For example,
Edlund cites Greens at Fort Missoula, LLC v. City of Missoula, 271 Mont. 398, 897 P.2d
1078 (1995), for the proposition that “a voter initiative may be used to zone land.” Greens,
and its progeny, Town of Whitehall v. Preece, 1998 MT 53, ¶ 18, 288 Mont. 55, 956 P.2d
743, involved citizen-initiated referendums to repeal existing, city-enacted land-use
ordinances; neither case involved citizen-initiated land-use regulations like the proposed
ordinance at issue here. Greens, 271 Mont. at 400-06, 897 P.2d at 1079-82; Preece,
¶¶ 7-8, 17-18, 25. Greens and Preece therefore support Edlund’s general point that local
direct democracy may reach legislative land-use decisions. They do not validate this
ordinance’s permitting and enforcement provisions.
¶46 Edlund also cites Egan Slough Cmty. v. Flathead Cnty. Bd. of Cnty. Comm’rs,
2022 MT 57, 408 Mont. 81, 506 P.3d 996, as a case where this Court “upheld the adoption
of land use ordinances” through the citizen-initiative process. Egan’s holding is more
nuanced and does not require reversal here. In Egan, Flathead County citizens sought to
expand an existing citizen-initiated zoning district by adding adjacent land; the goal was to
encompass within the existing agricultural-zoned district land that was being developed for
a large-scale water bottling plant, Montana Artesian, and thereby subject that land to
existing zoning regulations. Egan, ¶¶ 1, 4, 6. The county board of commissioners
denied the citizen-initiated zoning petition, so the citizens put forth a citizen initiative
22
under § 7-5-131, MCA, to expand the zoning district, which county voters passed.
Egan, ¶¶ 7, 9-10.
¶47 Among other things, Montana Artesian claimed that the citizen initiative expanding
the district was invalid under § 7-5-131(1), MCA, because it “legislat[ed] on subjects
beyond the authority” of the board of county commissioners and bypassed the planning
and zoning committee’s authority to develop a new development pattern and recommend
new zoning regulations for the added land. Egan, ¶¶ 44-47. We disagreed. We first noted
that “the statutes to consider in determining the authority of the county’s electors to expand
the [zoning district] through citizen initiative under [the] circumstances [were] the Part 1
zoning statutes.” Egan, ¶ 47. The part 1 statutes empowered the board of county
commissioners to create the zoning district and appoint the planning and zoning committee,
which it did many years prior pursuant to § 76-2-101(1), MCA. The part 1 statutes,
specifically § 76-2-117, MCA, also empowered the board of county commissioners
“to expand an existing zoning district to include adjacent land.” Therefore, expanding
the existing zoning district was within the board of county commissioners’ express
“legislative jurisdiction and power” and thereby “subject to the initiative power of the
people.” Egan, ¶¶ 45-47. Critically, “land added to [the] zoning district under § 76-2-117,
MCA, becam[e] subject to [the] existing zoning regulations” previously developed by the
planning committee and therefore the initiative “did not create new regulations or bypass
the authority of a planning and zoning commission” under part 1 “to recommend
regulations based on the development pattern of the district.” Egan, ¶ 47.
23
¶48 Egan supports our reading of § 7-5-131 and Title 76, chapter 2, part 1, MCA.
Expansion of an existing county-created zoning district is explicitly within the board of
county commissioners’ power under § 76-2-117, MCA, and a citizen initiative expanding
the existing zoning district therefore did not purport to regulate land use outside the
governing body’s jurisdiction and power. Unlike in Egan, there is no established CPZC in
Treasure County nor any established citizen-initiated zoning district, and Edlund’s
proposed ordinance does not purport to expand an existing zoning district, but rather,
to regulate land use county-wide under the Board of County Commissioners’
Title 7, chapter 5 “general authority.” Egan does not support Edlund’s claims.
¶49 Edlund also cites Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926),
Freeman v. Bd. of Adjustment, 97 Mont. 342, 34 P.2d 534 (1934), and Williams for the
proposition that “the County has the power to adopt and enforce . . . regulations that affect
the use of land.” Even though not factually analogous, those cases support the general
proposition that local governments may regulate land use under valid zoning authority.
Accord Greens, 271 Mont. at 400-06, 897 P.2d at 1080-81; Egan, ¶¶ 45-47. They do not
answer whether this proposed ordinance properly invokes that authority. The issue here is
not whether a county may regulate land use. The issue is whether Edlund’s proposed
ordinance would be within Treasure County’s Board of County Commissioners’ authority
if voters approved it. It would not.
¶50 Finally, Edlund relies on Kafka v. Mont. Dep’t of Fish, Wildlife & Parks, 2008 MT
460, 348 Mont. 80, 201 P.3d 8, and Seven Up Pete Venture v. State, 2005 MT 146,
327 Mont. 306, 114 P.3d 1009. Those cases involved statewide initiatives enacted under
24
statewide legislative authority. They do not govern the statutory limits on a county
initiative under § 7-5-131, MCA, which reaches only ordinances within the legislative
jurisdiction and power of the local governing body.
¶51 In sum, § 7-5-131, MCA, permits citizens to propose ordinances “within the
legislative jurisdiction and power of the governing body of the local government.”
Section 7-5-2101, MCA, grants a board of county commissioners general authority, but
only “under such limitations and restrictions as are prescribed by law.” Title 76, chapter
2, MCA, supplies specific statutory authority and limits for county land-use and zoning
regulation. Those specific statutes control over the general powers provided local
governments in Title 7, chapter 5, MCA, to the extent of any conflict.
¶52 Accordingly, we hold that the District Court correctly concluded that Edlund’s
proposed ordinance was invalid under § 7-5-135, MCA. The ordinance, as drafted, would
create a countywide WECS land-use permitting and enforcement regime under the
County’s general powers, even though specific statutes govern county land-use and zoning
authority, and the ordinance’s central permitting, enforcement, penalty, appeal, and
decommissioning provisions do not comply with those statutes. The County therefore is
not required to approve Edlund’s petition for signature gathering or place the proposed
ordinance before the electorate for a vote.
Edlund’s Remaining Claims of Error, Including Constitutionality
¶53 Though the Treasure County Board of County Commissioners’ lack of “jurisdiction
and power” to implement and enforce the proposed ordinance is dispositive under
§ 7-5-135(1), MCA, we briefly address Edlund’s remaining claims of error. Edlund
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contends that the District Court applied the wrong summary judgment standard, incorrectly
concluded the ordinance conflicted with other laws, failed to give effect to the ordinance’s
severability clause, and failed to rule on the constitutionality of the ordinance. None of
these claims requires reversal.
¶54 First, the District Court did not reversibly misapply the summary judgment standard.
The parties disputed the legal significance of the ordinance and the statutory framework
but did not materially dispute the ordinance’s text and procedural posture. The dispositive
question was whether the proposed action would be valid and constitutional under
§ 7-5-135, MCA. The District Court resolved that legal question on cross-motions
for summary judgment. See Gardiner-Park Cnty., ¶¶ 12-13; City of Great Falls, ¶ 10.
We do not rely on any factual finding that Edlund failed to “prove” the policy basis for
WECS regulation. The wisdom, necessity, or factual support for wind-facility regulation
is not before us. We decide only whether the proposed ordinance, as drafted, would be
valid and enforceable if voters approved it.
¶55 Second, several provisions in the proposed ordinance confirm its invalidity.
The penalty provision imposes a $10,000 per-day fine, exceeding the penalty authority
available to counties under § 7-5-109, MCA, and exceeding the penalty provision
applicable to county-initiated zoning under § 76-2-211, MCA. The ordinance assigns
the Board of County Commissioners permitting authority in a manner inconsistent
with §§ 76-2-108 and -207, MCA. The ordinance also includes decommissioning,
transmission-line, insurance, appeal, and enforcement provisions that the County would
have to administer without a valid statutory foundation for the permitting regime. We need
26
not decide whether every challenged provision independently conflicts with state or federal
law. The central defect is that the ordinance’s operative provisions depend on authority
the County has not been given under the general powers provided in Title 7, chapter 5,
MCA.
¶56 Third, Edlund’s claim that the District Court should have exercised severability
to make the proposed ordinance valid under § 7-5-135, MCA, also fails. Edlund’s
ordinance directs that “invalid or unenforceable” provisions were to be severed and
“the remainder” was to “continue in effect.” But a severability clause cannot supply
statutory authority that the County lacks. It also cannot require a court to rewrite a
proposed ballot measure into a materially different ordinance. The invalid provisions are
central to the ordinance’s operation: they define who issues permits, how permits are
enforced, how violations are punished, how facilities are decommissioned, and how
decisions are reviewed. Even if a court could sever a discrete invalid provision in a
§ 7-5-135, MCA, proceeding, severing the central permitting and enforcement provisions
here would defeat the ordinance’s stated purpose “to outline a permitting process for wind
energy conversion systems.” The District Court did not err by declining to salvage the
proposed ordinance through severability.
¶57 Lastly, Edlund claims that the District Court erroneously failed to rule on the
constitutionality of the proposed ordinance. She offers many reasons for why the proposed
ordinance was constitutional, including that citizen initiatives may affect land use; land use
is not specifically included in the list of impermissible subject matters for citizen initiatives
under § 7-5-131(2), MCA; the initiative process, including signature-gathering and voting,
27
preserves constitutional notice and participation principles; and the Legislature recently
amended the local initiative and referendum statutes without limiting those powers.
¶58 Section 7-5-135(1), MCA, establishes that the inquiry upon challenge by a local
governing body is “whether the proposed action would be valid and constitutional” if it
became law. This is a conjunctive test: a proposed ordinance must be both valid and
constitutional; if not, it must fail. See Helvik v. Toscano, 2025 MT 150, ¶ 36, 423 Mont.
85, 571 P.3d 1058; American Fed. S&L Ass’n v. Madison Valley Props. Inc., 1998 MT 93,
¶ 26, 288 Mont. 365, 958 P.2d 57. Upon concluding that the proposed ordinance was
invalid under § 7-5-135, MCA, the District Court declined to reach the constitutionality
question. This was not error. Courts should avoid constitutional rulings when a case may
be resolved on nonconstitutional grounds. Solem v. Dep’t of Revenue, 2024 MT 217, ¶ 26,
418 Mont. 176, 557 P.3d 919.
¶59 2. Whether the District Court issued an advisory opinion.
¶60 Edlund contends that the District Court improperly issued “an advisory opinion on
[her] possible use of § 76-2-101, MCA.” We disagree. “Cases” and “controversies” within
the judicial power to determine do not include “abstract differences of opinion.” Plan
Helena, Inc. v. Helena Reg’l Airport Auth. Bd., 2010 MT 26, ¶ 9, 355 Mont. 142, 226 P.3d
567 (citation omitted). A “controversy” is one that is “definite and concrete, touching legal
relations of parties having adverse legal interests,” i.e., a “real and substantial controversy,
admitting of specific relief through decree of conclusive character, as distinguished from
an opinion advising what the law would be upon a hypothetical state of facts, or upon an
28
abstract proposition.” Plan Helena, Inc., ¶ 9 (citation omitted); Arnone v. City of Bozeman,
2016 MT 184, ¶ 14, 384 Mont. 250, 376 P.3d 786.
¶61 The County sought declaratory judgment under § 7-5-135, MCA, that Edlund’s
proposed ordinance was invalid and unconstitutional. The District Court resolved that
concrete dispute by declaring the ordinance invalid and entering judgment for the County.
That judgment was not advisory; it definitively and correctly resolved the subject
controversy—the validity of Edlund’s proposed ordinance under § 7-5-135, MCA.
The court’s comments about other possible statutory routes for land-use regulation were
unnecessary to its judgment, and we do not adopt them as a holding. But unnecessary dicta
do not transform a final judgment resolving an actual controversy into an advisory
opinion. See Plan Helena, ¶ 9; Arnone, ¶ 14.
CONCLUSION
¶62 We hold that the District Court correctly concluded Edlund’s proposed ordinance
was invalid under § 7-5-135, MCA. The ordinance, as drafted, would create a countywide
WECS land-use permitting and enforcement regime under the Treasure County Board of
County Commissioners’ general authority, Title 7, chapter 5, MCA, although specific
statutes under Title 76, chapter 2, parts 1 and 2, MCA, govern county land-use and zoning
authority and the ordinance’s central operative provisions do not comply with those
statutes. The County is not required to approve Edlund’s petition or submit the proposed
ordinance for election. Nothing in this Opinion decides whether a differently drafted
measure, proceeding under proper statutory authority and consistent with applicable state
and federal law, could be submitted to the voters.
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¶63 Affirmed.
/S/ KATHERINE M. BIDEGARAY
We Concur:
/S/ CORY J. SWANSON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON
30