Preservation Law Notes: Development at Lewis and Clark Portage Site Stalled by Montana Supreme Court Ruling

Posted on: July 30th, 2010 by National Trust for Historic Preservation

Written by Amy Cole and Anne Hedges  

A view of the Great Falls Portage National Historic Landmark. Photo: Amy Cole

The Montana Supreme Court sided with agricultural interests, environmentalists, and preservation advocates when it recently ruled that Cascade County, Montana’s rezoning of agricultural land to heavy industrial to facilitate the development of an energy complex constituted illegal spot zoning (see Plains Grains v. Board of County Commissioners of Cascade County). The land in question contains a portion of the Great Falls Portage National Historic Landmark, a site that was included on the National Trust for Historic Preservation's 2008 list of America’s Most Endangered Historic Places. The site also marks the location of Lewis and Clark’s historic portage around the great falls of the Missouri River.    

The Southern Montana Electric Generation and Transmission Cooperative originally wanted to build a 250-megawatt, coal-fired power plant with accompanying infrastructure, including rail lines, transmission lines, and an on-site waste disposal facility. The project was later scaled back to a 120-megawatt, natural gas-fired plant. Both proposals would have had a significant impact on the National Historic Landmark. Litigation over the rezoning began in 2006, shortly after the county rezoned the 668-acre parcel in question to heavy industrial. While the case has a complex procedural history, it was eventually heard by the Montana Supreme Court and decided on July 16, 2010.    

Of particular interest to preservationists is the court’s decision that this rezoning constituted the impermissible use of spot zoning. Under Montana law, there is a three-part inquiry (Little v. Board of County Comm’rs of Flathead County) to determine if spot zoning has occurred: 1) whether the requested use differs from the prevailing land uses in the area; 2) whether the area requested for the rezone would be “rather small” in terms of the landowners benefited by the requested zone change; and 3) whether the requested zone change would be in the nature of “special legislation” designed to benefit one or a few landowners at the expense of surrounding landowners and the public.    

The Montana Supreme Court held that each prong of the Little test had been satisfied and that spot zoning had occurred in the Cascade County case. However, at this point, it is not completely clear what this favorable decision will ultimately mean for the development of the gas plant, but we believe the decision will be a critical factor in helping to protect the integrity of the site.    

For over four years, the National Trust sought to protect this National Historic Landmark from the adverse effects of the proposed plant. National Trust staff actively participated in the Section 106 and National Environmental Policy Action processes, provided comments to the Montana Department of Environmental Quality, and testified before the county about the rezoning. The National Trust and the Montana Preservation Alliance also filed a motion with the Montana Supreme Court seeking to be admitted as an amicus curiae in this case, though the court declined to grant our motion to participate. As amicus, we planned to provide information to the court about the national significance of the Great Falls Portage and why the landmark’s significance should be considered under one of the prongs of the Montana spot zoning test.    

Please stay tuned for more information about what this new decision by the Montana Supreme Court means for protecting the integrity of the Great Falls Portage National Historic Landmark.    

Amy Cole is the senior program officer and regional attorney for the National Trust's Mountains/Plains Office. Anne Hedges is the program director for the Montana Environmental Information Center.

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