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Section 6. Noxious weed management trust fund. (1) The legislature shall provide for a fund, to be known as the noxious weed management trust of the state of Montana, to be funded as provided by law. (2) The principal of the noxious weed management trust fund shall forever remain inviolate in an amount of ten million dollars ($10,000,000) unless appropriated by vote of three-fourths (3/4) of the members of each house of the legislature. (3) The interest and income generated from the noxious weed management trust fund may be appropriated by a majority vote of each house of the legislature. Appropriations of the interest and income shall be used only to fund the noxious weed management program, as provided by law. (4) The principal of the noxious weed management trust fund in excess of ten million dollars ($10,000,000) may be appropriated by a majority vote of each house of the legislature. Appropriations of the principal in excess of ten million dollars ($10,000,000) shall be used only to fund the noxious weed management program, as provided by law.

History

The Need for a Noxious Weed Management Trust Fund

After the influx of immigrants and their non-human accessories – horses, cattle, commodities and most importantly, plants, Montana experienced a steady infestation of various foreign plants, which later came to be fondly characterized as noxious weeds. Between 1920 and 1980, the noxious weed infestation spread from small pockets in the most populated and well-travelled corridors to nearly every corner of the state. Canada Thistle, Russian Knapweed, Spotted Knapweed, Diffuse Knapweed, and Leafy Spurge were the most wide-spread by the mid-1980s, and also caused the most environmental degradation and economic devastation. Mont. Dep’t of Ag., Final Programmatic Environmental Impact Statement: Noxious Weed Trust Fund, 2-4 through 2-5, (1992) [hereinafter Final Programmatic Environmental Impact Statement].

The lacking nutritional quality of noxious weeds in conjunction with their season of growth and palatability significantly reduce livestock carrying capacity on rangeland where noxious weeds have displaced native plants.Id. at 2-5. In 1983, the range livestock industry lost $4.5 million annually from the spotted knapweed invasion, with a projected annual loss of $155 million if the spotted knapweed infestation were left unaddressed.Id. Leafy Spurge, on the other hand, is known to reduce cattle carrying capacity by up to 75%. The estimated annual loss to the industry was $5.7 million in 1990, and projected to reach $25.6 million by 1995 if the leafy spurge infestation were left unaddressed.Id.

Infestations of noxious weeds not only create economic problems, but infestations creeping into wilderness, whether managed by the Federal Government, the state, or effectively by private parties, degrades the wilderness’s natural character and impairs natural biological diversity.Mont. Dep’t of Ag., Montana Noxious Weed Management Plan: 2017 Update, AGR.MT.GOV, http://agr.mt.gov/Portals/168/Documents/GrantsandLoans/NWTF/MT%20Noxious%20Weed%20Management%20Plan-%20Update%202017.pdf (last visited March 19, 2018). As of 2017, over 8.2 million acres, approximately 9% of the entire state, had been infested with noxious weeds, resulting in estimated economic loss of $1.29 per acre per year.Id.

The Regulatory Scheme of the Statutory Noxious Weed Management Trust Fund

The Noxious Weed Management Trust Fund (NWMTF) was a well-established trust fund that had already issued $18,850,03 worth of grants, $11,581,493 of which went directly to Counties, during the first fifteen years of its existence by 2000.Final Programmatic Environmental Impact Statement, supra note 1, at 2. 39 of those grants, worth $294,393, went to Reservations across the state, and 265 grants worth $6,974,207 went to other organizations.Id. The Department of Agriculture characterized the NWMTF as a fund dedicated to providing funding for development and implementation of weed management programs, research and development of innovative weed management techniques, and supporting education and other research projects that provide benefits to all Montanans.Mont. Dep’t of Ag. & Nancy K. Peterson, Montana Noxious Weed Trust Fund Summary: 1985 through 2005, MONTANA HISTORICAL SOCIETY DEPOSITORY, 1, (2006) [hereinafter Noxious Weed Trust Fund Summary].

The Legislative History of the Statutory Noxious Weed Management Trust Fund

The NWMTF was established during the 1985 Legislative Session. By request of the Department of Agriculture, House Bill (HB) 506 was introduced as an act establishing the NWMTF and authorizing the noxious weed management advisory council.H.R. 506, 49th Leg. Reg. Sess. (Mont. 1985). The act passed both the House and the Senate without opposition, and minimal amendments from either body.H. Journal, 49th Leg., Reg. Sess. 512, 551 (Mont. 1985); S. Journal, 49th Leg., Reg. Sess. 1103 (Mont. 1985). According to the statement of intent attached to HB 506, the legislature intended that the grants and contracts from the trust fund be given on a cost-share basis. Mont. H. Journal, 49th Leg., Reg. Sess. at 850. The ratio of the cost-sharing was left to the discretion of the Department of Agriculture, but the statement of intent further specified that the department must consider the recipient’s ability to find other sources of funding, necessity of the proposed project to be funded, and “the amount of benefit it bestows on the area involved,” with the caveat that “projects involving greater community action and benefit receive increased priority.”Id.(emphasis added).

HB 506 transferred $1,000,000 from the Montana Resource Indemnity Trust Fund (RIT), another constitutional trust fund found in Article IX, Section Four of the Montana Constitution, to the NWMTF, and established a 1% herbicide surcharge.H.R. 506, 49th Leg. Reg. Sess. (Mont. 1985). Half of the RIT grant and the herbicide surcharge funded grants for the first two years of the NWMTF’s existence, and the other half padded the permanent NWMTF.Id. At the following legislative session, a $.50 vehicle registration fee was established to fund the NWMTF.Noxious Weed Trust Fund Summary, supra note 9 at 1. At the session after that, the 1989 Legislature increased the vehicle registration fee to $1.50 per vehicle, as well as create a fee for off-highway vehicles, and divert a portion of the gas tax from snowmobiles to the NWMTF.Id. In 1991, the legislature placed a sunset on the 1% herbicide surcharge, because the NWMTF had finally reached the threshold goal of $2.5 million.Id.

Eight years later, the 1999 Legislature transferred $2.25 million from the non-restricted highway fund to the NWMTF, over the 2000/2001 biennium.S. 164, 56th Leg. Reg. Sess. (Mont. 1999). This same bill also revised the membership of the noxious weed management advisory council to include county representatives, and most importantly, increase the cap for the NWMTF from $2.5 million to $10 million.Id. The bill passed the 1999 session without opposition.Mont. Legislative Branch, Montana Legislature: Detailed Bill Information, laws.leg.mt.gov (56th Leg. Reg. Sess. 1999) http://laws.leg.mt.gov/legprd/LAW0203W$BSRV.ActionQuery?P_SESS=19991&P_BLTP_BILL_TYP_CD=SB&P_BILL_NO=164&P_BILL_DFT_NO=&P_CHPT_NO=&Z_ACTION=Find&P_ENTY_ID_SEQ2=&P_SBJT_SBJ_CD=&P_ENTY_ID_SEQ= (last visited April 1, 2018). The following session, SB 326 transferred $100,000 from the highway nonrestricted account to the noxious weed state special revenue account, as well as transfer up to $500,000 from the RIT, after the first money paid into the RIT exceeded $100,000,000, during fiscal year 2003.S. 326, 57th Leg. Reg. Sess. (Mont. 2001); MONT. CODE ANN. § 15-38-202 (2017). SB 326 also allowed county commissioners to levy taxes of not less than 1.6 mills, as opposed to the former cap of ‘not exceeding 2 mills’ on the dollar of total taxable valuation in the county, which amended Mont. Code Ann. 7-22-2142, the sources of funding for the NWMTF.S. 326, 57th Leg. Reg. Sess. (Mont. 2001). SB 326 further allowed the county commissioners to impose a tax for weed management projects within special management zones, if approved by a majority of the voters residing within the special management zone.Id.; MONT. CODE ANN. § 7-22-2141(4) (1939).

By 1992, the NWMTF represented 10% of all chemical herbicide use in the state, and 50% of the state’s biological control efforts.Final Programmatic Environmental Impact Statement, supra note 1, at I-II. In 1992, the Department of Agriculture amended its internal grant process to comply with the Montana Environmental Policy Act by requiring grant applicants to submit an Environmental Assessment (EA) checklist, which could later become a full EA or an Environmental Impact Statement if the department determined that more information and analysis was necessary to comply with MEPA or NWMTF rules.Id. at 5-1, 5-2.

The Constitutional Amendment Establishing the Noxious Weed Management Trust Fund

The draft request for the constitutional amendment to create the noxious weed management trust fund was received on September 13, 2002, and a draft of the bill, labeled House Bill (HB) 128, was referred to the House Agriculture Committee on December 27th, 2002.Mont. Legislative Branch, Montana Legislature: Detailed Bill Information, LAWS.LEG.MT.GOV (58th Leg. Reg. Sess. 2003) http://laws.leg.mt.gov/legprd/LAW0203W$BSRV.ActionQuery?P_SESS=20031&P_BLTP_BILL_TYP_CD=HB&P_BILL_NO=128&P_BILL_DFT_NO=&P_CHPT_NO=&Z_ACTION=Find&P_ENTY_ID_SEQ2=&P_SBJT_SBJ_CD=&P_ENTY_ID_SEQ= (last visited March 18, 2018). Diane Rice, Representative of House District 33 between 2000 and 2008 and Chair of the House Agriculture committee, was the primary sponsor of HB 128.Mont. Legislative Branch, House Committees – 58th Legislative Session – 2003, LAWS.LEG.MT.GOV (48th Leg. Reg. Sess. 2003) http://leg.mt.gov/css/Sessions/58th/default.asp (last visited March 18, 2018). The committee amended HB 128 and passed it unanimously by January 15th, 2003. Mont. Legislative Branch, Montana Legislature: Detailed Bill Information, supra note 27. HB 128 passed second reading 97-2 on January 21st, with Representative Morgan and House Majority Leader Roy Brown voting against, and Representative Harris absent.Id. HB 128 passed third reading 100-0 on January 22nd. HB 128 was then referred to the Senate Agriculture, Livestock and Irrigation Committee, which passed HB 128 unanimously on February 4th.Id. At second reading, the Senate unanimously amended HB 128, before passing it 46-3 on February 7th, with Senators Esp, McGee, and Story voting no, and Senator Elliot excused.Id. On February 10th, HB 128 passed third reading, as amended by the Senate, 46-3 with Senators Mangan and Story voting no, and Senator Toole excused.Id. Back in the House, HB 128 passed second reading as amended 100-0 on March 7th, passed third reading as amended 88-2 on March 8th, with Representatives Gutsche and House Minority Leader Wanzenried voting no, and Representatives Cyr, Dickenson, Gallus, Gillan, Harris, Lenhart, Lewis, Rice, Windy Boy, and Younkin excused.Id. The Speaker of the House and the President of the Senate signed HB 128 on March 11th, 2003, and the chapter number was assigned on March 12th, 2003.Id.

The Political Climate of the 2003 Session

A $232 million deficit faced the 150 citizen legislators at the beginning of the session.DANIEL D’AMBROSIO, Montana News Service Coverage of the 2003 Session of the 58th Legislature, ii (May 2003) (Ph.D dissertation, University of Montana) (on file with ProQuest, University of Montana) available at https://search.proquest.com/docview/1549604256?pq-origsite=primo [hereinafter D’Ambrosio, Montana News Service Coverage]. There were a few controversial solutions to balancing the budget. The Republican leadership proposed a solution that would not require taxes to be increased, by decreasing state spending to FY 2000 levels, saving approximately $160 million.Id. at 12, 18. Governor Judy Martz proposed transferring $93 million from the coal tax trust fund to balance the budget, an option generally supported by Republicans and generally opposed by Democrats.Id. at 12; H. R. 74, 58th Leg. Reg. Sess. (Mont. 2003).

Senator Linda Nelson, a Democrat from Medicine Lake, described the coal tax trust fund as “the hardest working asset we have for this state” and noted that the trust’s interest covered educational costs, as well as paid for other state programs.D’Ambrosio, Montana News Service Coverage, at 12. Representative Jesse Laslovich, a Democrat from Anaconda, stated it was “not a serious solution (to the budget crisis) to tap the coal trust fund.”Id. at 12, 27-28. House Majority Leader Roy Brown, a Republican from Billings, noted that there were few other options for the legislature than to tap the coal tax trust fund, and Senate Majority Leader Fred Thomas, a Republican from Stevensville, stated “[e]ither Democrats will agree to use the coal tax trust fund, or they will raise taxes and cut programs.”Id. at 12-13. Senate Minority Leader Jon Tester, a Democrat from Big Sandy, and House Minority Leader Dave Wanzenried, a Democrat from Missoula, proposed transferring $93 million out of surplus reserves in the state workers’ compensation program, rather than tap into the coal trust fund.Id. at 32. Tapping into the coal tax trust fund would require a ¾ vote, just as the NWMTF does currently.MONT CONST. art. IX, § 5; MONT. CONST. art. IX, § 6.

Halfway through the session, Governor Martz indicated that she would veto all proposals for tax increases or new taxes, leaving her solution of tapping into the coal tax trust fund and decreasing spending as the only solution.D’Ambrosio, Montana News Service Coverage, at 47. House Republicans proposed to decrease the transfer from $93 million to $31.6 million, which was rejected by a House vote, which House Majority Leader Roy Brown explained as a tactic by the Democrats to keep the proposal at the original, and more likely to fail, $93 million.Id.

Proposals for other sources of revenue included increases to the “sin taxes” of tobacco, liquor, and gambling, a 9% rental car tax, and a selective sales tax directed at tourists, which would generate an estimated $145 million.Id. at 14, 25, 31-32. The most controversial proposal of the session involved increased development of coal-bed methane.Id. at 14. Representative Keith Bales, a Republican from Otter, highlighted the budget turn-around that Wyoming experienced after developing coal-bed methane. “Wyoming was looking at a projected $160 million budget deficit. In less than one year’s time, as they went to developing methane [the budget] went to a $170 million surplus.”Id. at 14-15.

Other Constitutional Amendments Proposed at the 2003 Session

There were three other trust funds proposed during the 2003 session, including an “Economic Development Trust Fund” which died in standing committee, a “Trust Fund for Fire Suppression and Land Use Planning” which missed transmittal deadlines, and a bill to establish a “State Park-Fishing Access Maintenance Fund” which also missed transmittal.H. R. 276, 58th Leg. Reg. Sess. (Mont. 2003); H. R. 405, 58th Leg. Reg. Sess. (Mont. 2003); H. R. 466, 58th Leg. Reg. Sess. (Mont. 2003). There were 22 other constitutional amendments proposed during the 2003 session. Four died in standing committee, three died in process, and thirteen missed transmittal deadlines. Only two passed the legislature, and only one of those (excluding the NWMTF) was passed by the electorate. See list below, which depicts the title and purpose of the proposed amendment, followed by the bill number, sponsor, and legislative outcome.

• Constitutional amendment to limit misdemeanor trial to either lower or district court, HB 14, Jim Shockley (R) HD 61, Died in Standing Committee.
• Prohibit income or property tax reestablishment without a vote, HB 381, Daniel Fuchs (R) HD 15, Died in Standing Committee.
• Repeal term limits, SB 1, Bea McCarthy (D) SD 29, Died in Standing Committee.
• Revise legislative terms and term limits, SB 204, Mike Taylor (R) SD 37, Died in Standing Committee.
• Annual legislative sessions, SB 79, Mike Sprague (R) SD 6, Died in Process.
• Protection of unborn as compelling state interest, SB 274, Dan McGee (R) SD 11, Died in Process.
• Reapportionment commission constitutional amendment, SB 428, John Esp (R) SD 13, Died in Process.
• Allow legislature by 3/5 vote to change county boundaries, county seat, HB 229,Bernie Olson (R) HD 76, Missed Transmittal.
• Eliminate position of Commissioner of Higher Education, HB 281, Scott Sales (R) HD 27, Missed Transmittal.
• Term limit for Supreme Court, HB 394, Roy Brown (R) HD 14, Missed Transmittal.
• Increase terms for legislators, HB 655, Joey Jayne (D) HD 73, Missed Transmittal.
• Allow election of less than ½ of Senate members when legislative size change, SB 8, Mike Sprague (R) SD 6, Missed Transmittal.
• Revise authority over practice of law, SB 156, Jerry O’Neil (R) SD 42, Missed Transmittal.
• Term limits for Supreme Court Justices, SB 178, Bea McCarthy (D) SD 29, Missed Transmittal.
• Annual legislative session, SB 182, John Bohlinger (R) SD 7, Missed Transmittal.
• Constitutional Amendment for equity among sales, income, and property taxes, SB 186, Edward Butcher (R) SD 47, Missed Transmittal.
• Constitutional amendment requiring property tax be refundable, SB 482, Keith Bales (R) SD 1, Missed Transmittal.
• Extend terms of senators and representatives, SB 203, Mike Taylor (R) SD 37, Missed Transmittal.
• Annual legislative session, SB 214, Emily Stonington (D) SD 15, Missed Transmittal.
• Right to Hunt Game constitutional amendment, HB 306, Joe Balyeat (R) HD 32, Chapter Assigned, Approved by Electorate.
• Extend term limits from 8 to 12 years, HB 277, Monica Lindeen (D) HD 7, Chapter Assigned, Rejected by Electorate.Mont. Legislative Branch, Montana Legislature: Detailed Bill Information, Proposed Amendment Search, LAWS.LEG.MT.GOV (58th Leg. Reg. Sess. 2003) (last visited March 18, 2018).

HB 306, also known as the “heritage amendment” did not skate by the legislature as easily as the NWMTF amendment, even though it passed the electorate by 21,575 more votes than the NWMTF.Sec.y of State, 2004 Statewide General Election Results, SOS.MT.GOV (2004) http://sos.mt.gov/portals/142/Elections/archives/2000s/2004/2004-GenState.pdf?dt=1525712722398 (last visited March 18, 2018). HB 306 passed the House Fish, Wildlife and Parks Committee as amended 18-2, passed second reading 73-24, and passed third reading 81-17. HB 306 was far less controversial in the Senate, where it passed the Senate Fish and Game Committee 10-0, second reading 50-0, and third reading 49-1.Mont. Legislative Branch, Montana Legislature: Detailed Bill Information, LAWS.LEG.MT.GOV (58th Leg. Reg. Sess. 2003) http://laws.leg.mt.gov/legprd/LAW0203W$BSRV.ActionQuery?P_SESS=20031&P_BLTP_BILL_TYP_CD=HB&P_BILL_NO=306&P_BILL_DFT_NO=&P_CHPT_NO=&Z_ACTION=Find&P_ENTY_ID_SEQ2=&P_SBJT_SBJ_CD=&P_ENTY_ID_SEQ= (last visited March 18, 2018).

HB 277, which would have extended term limits of the legislators from eight to twelve years, was less popular than both the heritage amendment and the NWMTF amendment at the session and at the polls. HB 277 passed the House State Administration Committee 17-2, second reading 67-32, and third reading 71-36.Mont. Legislative Branch, Montana Legislature: Detailed Bill Information, laws.leg.mt.gov (58th Leg. Reg. Sess. 2003) http://laws.leg.mt.gov/legprd/LAW0203W$BSRV.ActionQuery?P_SESS=20031&P_BLTP_BILL_TYP_CD=HB&P_BILL_NO=277&P_BILL_DFT_NO=&P_CHPT_NO=&Z_ACTION=Find&P_ENTY_ID_SEQ2=&P_SBJT_SBJ_CD=&P_ENTY_ID_SEQ= (last visited March 18, 2018). In the Senate, the Senate State Administration Committee passed HB 277, as amended, 3-2, passed second reading 36-14, and third reading 36-14.Id. Back in the House, HB 227 passed second reading 88-11, and the Senate adopted the committee report including HB 227 50-0, and HB 227 passed third reading 37-13.Id. In the House again, the committee report including HB 227 was adopted 60-40, and HB 227 passed third reading 74-26.Id. The electorate rejected HB 277 (known as C-42 at the polls) by 162,231 votes.Sec.y of State, 2004 Statewide General Election Results, supra note 51.

While the legislature nearly unanimously agreed to constitutionally bind themselves to maintaining the NWMTF at $10 million subject to electorate approval, the consent requirement of ¾ of the legislature to access the NWMTF is consistent with another bill during the same session, which prohibited transfers of state fund assets to other funds or programs.S. 360, 58th Leg. Reg. Sess. (Mont. 2003).

Ratification

Electorate Approval of the Constitutional Amendment Creating the Noxious Weed Management Trust Fund

There is no record of a campaign for or against C-40 in any of the major newspapers of the state. The 2004 Voter Information Pamphlet included a proponent argument, prepared by Senator Bill Glaser and the sponsor of the underlying legislation, Representative Diane Rice, and read as follows:

VOTE FOR C-40: PROTECT THE MONTANA NOXIOUS WEED TRUST FUND

This election, voters will have the opportunity to protect one of Montana’s most valuable assets, the Montana Noxious Weed Trust Fund. C-40 will constitutionally create and protect the Trust Fund, which has existed since 1985. The Trust Fund has generated millions of dollars in matching grants for weed control projects all over the state of Montana. The Trust Fund grants serve a variety of purposes ranging from research and education, to chemical and biological control.

C-40 will require the Legislature to have a ¾ majority vote in both the House and Senate before accessing the Trust Fund for any use other than weed control. It will cap the corpus of the Trust Fund at $10 million so that any principal amount generated over $10 million, in addition to interest, can be used directly for weed control. This structure is similar to the Coal Tax Trust Fund; however, rather than accumulating hundreds of millions of dollars, we will be able to use any money over $10 million now.

C-40 WILL NOT REQUIRE ANY NEW TAXES. C-40 is simply a protective measure to prevent raiding of the Trust Fund by the Legislature during tight budgetary times.

C-40 will be an economic boost to our state’s Agricultural industry.

C-40 will protect us from the unsightly and devastating weeds that have been expanding everywhere in Montana.Sec.y of State, Voter Information Pamphlet, SOS.MT.GOV, 12-13 (2004) http://sos.mt.gov/portals/142/Elections/archives/2000s/2004/VIP2004.pdf?dt=1525713186816 (last visited March 19, 2018).

The 2004 Voter Information Pamphlet did not include an argument against C-40, while the other initiatives and constitutional amendments did include an opposing argument.Id. C-40 passed with an overwhelming 323,929 votes in favor, and 105,086 votes against.Sec.y of State, 2004 Statewide General Election Results, supra note 51. Compared to other constitutional amendments and initiatives on the same ballot, C-40 was only the second most popular measure. C-41, the Constitutional Amendment known as the “Harvest Heritage Amendment” passed with 345,505 votes in favor, and only 83,185 against.Id. There was one other constitutional amendment, and four initiatives on the ballot. (C-42 – Extending term limits for legislators to 12 years, failed, with 136,931 votes in favor and 299,162 against; CI-96 – establishing that only marriages between a man and woman are valid, passed, with 295,070 in favor and 148,263 against; I-147 – allowing cyanide leach processing at open-pit gold & silver mines, failed, with 185,974 votes in favor and 257,280 against; I-148 – legalizing medical use of marijuana, passed, with 276,042 votes in favor and 170,579 against; I-149 – increasing tobacco taxes, passed, with 282,442 votes in favor and 163,626 against.Id.

C-40 passed with a 76% approval rate, and was most popular in Treasure County (84%) Silver Bow County (83%), Madison County (83%), Fallon County (83%), Fergus County (83%), and Meagher County (83%). While still passing, C-40 was less popular in Sanders County (64%), Flathead County (68%), and Musselshell County (68%).Id.

Correlations between Voter Approval of C-40 and Assistance from the Statutory Noxious Weed Management Trust Fund

Interestingly enough, counties with the fewest number of total grants between 1985 and 2005 (between 10 and 14) generally voted in favor of C-40 by at least 80%, with the exception of Toole County, which approved the measure by a relatively low margin of 69%.Id. Toole County received the same percentage of the total grants allocated to Counties by the NWMTF as Treasure County (.82%), yet Treasure County approved C-40 by an overwhelming 84%.Id. Counties that received the least amount of assistance from the NWMTF between 1985 and 2005 included Golden Valley County, Wibaux County, Toole County, and Treasure County, while the Counties that received that greatest amount of assistance included Powell County, Granite County, Ravalli County, and Lewis and Clark County.Id. See the table below for their levels of assistance from the NWMTF and their approval of C-40. The highest and lowest approval rates, amount of grants, and amount of funding are in bold.

It appears, with the exception of Toole County, there is no clear correlation between the amount of funding or grants given to the Counties and their support of C-40.

Interpretation

Maintaining the Noxious Weed Management Trust Fund Reserves

At the following legislative session, Diane Rice introduced HB 266, an act implementing the NWMTF.H. R. 266, 59th Leg. Reg. Sess. (Mont. 2005). After passing the House and Senate nearly unanimously, with Senator Jesse Laslovich being the only opposing vote at third reading in the Senate, Governor Brian Schweitzer returned HB 226 with a few amendments for clarification and correction.Mont. Legislative Branch, Montana Legislature: Detailed Bill Information, laws.leg.mt.gov (59th Leg. Reg. Sess. 2005) http://laws.leg.mt.gov/legprd/LAW0203W$BSRV.ActionQuery?P_SESS=20051&P_BLTP_BILL_TYP_CD=HB&P_BILL_NO=266&P_BILL_DFT_NO=&P_CHPT_NO=&Z_ACTION=Find&P_ENTY_ID_SEQ2=&P_SBJT_SBJ_CD=&P_ENTY_ID_SEQ= (last visited March 18, 2018). In his letter attached to the returned bill, Governor Schweitzer explained “[m]y proposed amendments make no substantive changes to the bill. Rather, the amendments accomplish two things. First, they clarify that interest or revenue generated by the trust fund must be expended only on noxious weed management projects, as provided in the voter-passed constitutional amendment. Second, they correct certain internal subsection references misnumbered in the drafting process.”GOVERNOR’S AMENDMENT, H. R. 266, 59th Leg. Reg. Sess (Mont. 2005). HB 266, as amended, passed the House at third reading 95-2, with Representatives Gutsche and Wilson voting against, and passed the Senate at third reading 50-0.Mont. Legislative Branch, Montana Legislature: Detailed Bill Information, supra note 60. The 2005 Legislature also adjusted the $1.50 vehicle registration fee for the NWMTF, to a flat percentage of the total motor vehicle registration revenue, which was calculated at 1.53% for the first fiscal year following the adjustment, and 1.50% for all succeeding fiscal years.Noxious Weed Trust Fund Summary, supra note 9 at 1.

The Effect of the Noxious Weed Management Trust Fund

The protections granted to the NWMTF by the constitutional amendment have not been adjudicated since it was added to Article IX of the Montana Constitution. Currently, grant application hearings are held annually in March, where grant applicants can apply for up to $75,000 per project.Mont. Dep’t of Ag. Noxious Weed Trust Fund Grants, agr.mt.gov, http://agr.mt.gov/Noxious-Weed-Trust-Fund-Grants (last visited March 18, 2018). Most applicants are affiliated with county weed districts or the Montana University System.Id. The Noxious Weed Management Advisory Council makes grant funding recommendations, and the Director of the Department of Agriculture approves the grants.Id.

As of 2016, 8,274,648 acres have been infested with noxious weeds, 2,227,010 being infested with Spotted Knapweed, 1,411,060 with Canada Thistle, and 781,916 with Leafy Spurge.Mont. Dep’t of Ag., Montana Noxious Weed Management Plan: 2017 Update, supra note 5 at 39. Since 2004, and especially since the introduction of noxious weeds to the state in the 1920s, the infestation has not been curbed. It is clear from the legislative history and administrative records surrounding the NWMTF that only with increased funding for herbicides and biological controls, as well as greater cooperation between all entities involved in funding herbicides and applying herbicides will the infestation be mitigated.

Legislation other than the NWMTF that attempts to mitigate noxious weed infestation include the following: The 2015 Legislature passed the “Montana County Weed Control Act,” a comprehensive act that established greater requirements for Counties and local governments to follow to comply with state-wide guidelines on noxious weed management; The 1995 Legislature created the Montana Noxious Weed Seed Free Forage program, which regulated forage products to prohibit noxious weed seed travel; and the 1973 Legislature passed the Montana Commercial Feed Act which prohibited noxious weeds in commercial feed.MONT. CODE ANN. § 7-22-2120 (2017); MONT. CODE ANN. 80-7-901 et seq. (2017); MONT. CODE ANN. 80-9-101 et seq.(2017). Most recently, Representative Ray Shaw (R) proposed HB 410 in the 2017 Legislative Session, which was “An Act Increasing Certain Vehicle Registration Fees to Increase Funds for Noxious Weed Control,” and was killed in standing committee by the Senate.Mont. Legislative Branch, Montana Legislature: Detailed Bill Information, laws.leg.mt.gov (65th Leg. Reg. Sess. 2017) http://laws.leg.mt.gov/legprd/LAW0203W$BSRV.ActionQuery?P_SESS=20171&P_BLTP_BILL_TYP_CD=HB&P_BILL_NO=410&P_BILL_DFT_NO=&P_CHPT_NO=&Z_ACTION=Find&P_ENTY_ID_SEQ2=&P_SBJT_SBJ_CD=&P_ENTY_ID_SEQ= (last visited March 18, 2018). During the same session, the Montana Nursery Law passed, which allowed for inspection and embargo of nursery stock which included noxious weeds.MONT. CODE ANN. §§ 80-7-101 et seq. (2017).

Five million acres of the approximately 8.2 million infested acres in the state are private.Mont. Dep’t of Ag., Montana Noxious Weed Management Plan: 2017 Update, supra note 5 at 39. Private landowners are able to buy herbicides and biological controls from their County Extension office for a reduced price, sometimes up to 50% less than market value, to manage noxious weeds on their private lands. However, landowners are not required to utilize these discounts, thus it is unclear to what extent the NWMTF has benefitted all private landowners with noxious weed infestations. Barriers to noxious weed mitigation on private property may include certifications and requirements for becoming herbicide applicators, the cost of herbicide, and the dangers and strict liability associated with herbicide misapplication.

Commentary