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they didn’t like the verdict.” Darby paid costs associated with prosecuting in both courts. However, if the district court delivered a guilty verdict, it collected the fines and penalties. “It became quite expensive for us in that way,” McKinney says. Darby’s new on-the-record status means that the only way for a defendant to appeal a guilty verdict is if there’s a district court finding that the original trial was legally or procedurally flawed. Since the change went into effect, with a month left in the 2012 fiscal year, Darby’s collected $34,461 in fines. That’s up from last year’s $29,543 and $32,754 in 2010. During the past several years, Darby has gotten increasingly tough on crime. In 2004, officials there installed several surveillance cameras along the city’s historic Main Street. And in 2010, Darby became the first city in the state to create a breathalyzer refusal ordinance. People who refuse a law enforcement officer’s request for a breathalyzer test now must pay a $500 fine. Darby Police Chief Larry Rose says the efforts are simply to keep locals safe. “We’re a little town, we can do as much as a big town,” Rose says. “We just have to be proactive about doing things.” Jessica Mayrer
Coal Railroad off track South of Miles City, the Tongue River bends through Mark Fix’s 9,700-acre ranch. He’s trying to stop a coal-hauling railroad from running through it, too. Last week, Fix and other ranchers along the river notched a victory when the federal Surface Transportation Board ruled that the Tongue River Railroad Company must reapply for a permit to carry coal from the isolated Otter Creek tracts in southeastern Montana, a decision that will at least further delay the railroad that was first proposed in 1980. “My ranch would be cut in half by the proposed Tongue River Railroad,” says Fix, a member of the Northern Plains Resource Council. “We can only hope that, for the first time in more than 30 years, the Surface Transportation Board will ask some tough questions about whether this railroad will benefit anyone besides Arch Coal and the Chinese industrialists who will burn that coal.” A year ago, Arch, the country’s second-largest coal company, which has leased about 1.4 billion tons of coal in the Otter Creek area, together with BNSF Railway and billionaire Forrest Mars, Jr.,
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acquired the Tongue River Railroad Company and its permit. They’re betting they can build the new railroad and send Otter Creek coal to West Coast export terminals. From there it would be shipped to Asia, where coal demand remains strong—unlike in the U.S., where the share of U.S. electricity that comes from coal is expected to fall below 40 percent for the year, the lowest level in about 70 years.
The Tongue River Railroad lost momentum last December when the Ninth Circuit U.S. Court of Appeals ruled that the railroad’s environmental impact statement was insufficient. That court decision, combined with changes in the railroad’s proposals, led to the STB’s ruling last week requiring a new application. Northern Plains attorney and University of Montana law professor Jack Tuholske says the STB ruling “has called into question the whole premise” of the railroad, which he says has an “ever-changing” purpose. “Twenty-five years ago, it was to haul coal to the upper Midwest. Now it is to export Montana’s resources to China. … Missoula and dozens of other communities will have a chance to weigh in and tell our federal government why this project is not in the public interest—why subsidizing China’s energy and boosting corporate profits should not come at our expense.” Matthew Frank
Citizens United What about the little guy? On June 25, Montana’s Corrupt Practices Act died in Washington D.C. The 100-year-old statute
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succumbed after a long battle with a conservative anti-environmentalist group, American Tradition Partnership. “The court has certainly slammed the door on the idea that states somehow or another are exempt from the First Amendment requirement,” says James Bopp Jr., who represented ATP in court. The United States Supreme Court found in a 54 decision that Montana’s campaign finance law, which banned direct corporate spending on political races, violated free speech protections. “Political speech does not lose First Amendment protection simply because its source is a corporation,” the Court said in its decision this week, citing a 2010 precedent that it set in Citizens United v. Federal Election Commission. Montana’s Corrupt Practices Act was born in 1912. Citizens created it to reel in the power of the Copper Kings, who at the turn of the 20th century used deep pockets to influence electoral politics. Supporters say the law evened out a dangerously tipped playing field. “As a result of these laws, citizens have been able to participate meaningfully in campaigns,” says Dennis Swibold, University of Montana journalism professor and author of Copper Chorus: Mining, Politics and the Montana Press, 1889-1959. Entities in and outside of Montana, including unions, corporations and Super PACs funded by anonymous donors, can now spend as much as they want to influence elections. Swibold says the problem now is that industry-friendly candidates will have even more leverage over average citizens who want to participate in local government. “It could just swamp people, and it will.” Those who laud the Supreme Court’s decision say it’s a victory for the little guy. Bopp says the only way for working people to broadcast their voices is to pool funds. “People of average means must pool their resources. It’s the only way the little guy can participate.” It looks like citizens will have a chance to weigh in on the discussion this November. A grassroots group called “Stand with Montanans” announced last week that it had gathered enough signatures to place voter initiative I-166 on the November election ballot. If voters support the initiative, the state would craft a non-binding resolution that tells the United States Congress to overturn the Supreme Court’s decisions on campaign finance with a constitutional amendment. Jessica Mayrer
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Days since Imperial Oil’s oversized test module arrived in the parking lot at Lolo Hot Springs. Imperial withdrew its transportation application last week, and the module, which hasn’t moved since May 2011, is now being demolished on-site.
etc. Montana’s wildfire season is raging. Roughly 200 residents were evacuated north of Helena early this week. Officials closed down the Madison River through Bear Trap Canyon in response to a blaze east of Norris. But a fire of a different sort caused a stir in the Bitterroot Valley this month. On June 19, Stevensville resident Larry D. Lowry allegedly doused an American flag in lighter fluid. Then he lit it. Only the flag wasn’t his. It belonged to his neighbor, who called the Ravalli County Sheriff’s Department. Lowry was reportedly intoxicated. Authorities took him into custody and released him the following day. Lowry faces a number of misdemeanor charges. But the kicker is a charge of flag desecration, one that, under Montana state law, carries maximum penalties of 10 years in prison or a $50,000 fine. It’s not a charge one sees pop up on crime blotters around here every day. We’re not going to make a case for Lowry’s actions. Torching a neighbor’s property is, in polite terms, poor form. Hence the added charges of negligent arson and criminal mischief. However, the incident got us thinking about flag burning in general. And frankly, we were more than a bit surprised to see this kind of charge leveled against someone, considering there’s no federal ban. The flag-burning debate has come up time and time again in our nation’s history. As early as the 1890s, states began passing laws forbidding desecration of the American flag. Peace activists in the late 1960s burned the flag in protest of the Vietnam War, prompting Congress to pass the Federal Flag Desecration Law. But the Supreme Court struck down such bans on flag burning in 1990, declaring it a constitutionally protected expression of free speech. Congressional efforts to outlaw flag burning waxed and waned throughout the 1990s and 2000s. The latest came just last year, when Sen. Orrin Hatch, R-Utah, proposed a bipartisan constitutional amendment prohibiting flag desecration. Montana’s own Sen. Max Baucus was a co-sponsor of the proposal, stating that flag burning is “clearly offensive and disrespectful to our veterans.” True. But the First Amendment is there to safeguard free speech in all its forms. That right to personal expression is part of what we celebrate on the Fourth of July. As long as it’s not, you know, arson.
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Missoula Independent Page 7 June 28– July 5, 2012