REGULAR MEETING OF THE BOARD OF COUNTY COMMISSIONERS
Tuesday August 4, 2026
PRESENT: Commissioner Morse, Chair; Commissioners Waters and White; Board Clerk Teri Reitz; Clerk and Recorder Jeff Martin.
PLEDGE: MOMENT OF SILENCE, Held.
9:00 a.m. PRESENTATION – Walking Montana Mid-Way Prize Giveaway.
PUBLIC COMMENTS ON REGULAR, CONSENT AND FILED AGENDA ITEMS – Hearing no comments Commissioner Morse continued the Board Meeting.
COUNTY
ATTORNEY – Data Center Ballot Initiative Signature Deadlines – Mr. Scott Twito, County Attorney stated that he is going to
share a memorandum that he worked on with his civil division. Late last week
and this weekend, we talked with Ms. Causby, our Election Administrator,
yesterday about it. As you know, this involves the dispute between the data
center and the petitioner and the process of gathering signatures for the
ordinance that they are seeking. We currently have a pending lawsuit trying to
find a legal determination as to whether that can go forward or not. So, I
talked to you about all of this with that hanging out there. I can't comment
on pending litigation; I can tell you some time frames of what's going on here.
I think what's important, and certainly if anybody wants to see this memo that
we prepared, we have multiple copies. So, if there's anybody here, you can
certainly follow along. I would ask you to follow along. The reason I want to
do that is twofold. The first is I want to explain to you the status of the
law as it sits with regard to signature gathering for petitions, for
ordinances, local initiatives. The second thing I want to do, and you'll see
this in this memo that we put together, is a timeline of some events. I think
it's important that you allow me the opportunity to address the timeline of
events here because I think it offers an explanation for what the county's role
in this whole process is. I think it's been crystal clear to me that the
county whether it's the county commissioners or the county attorney's office or
another county department involved in this, has been kind of scapegoated for, I
don't understand why, because the county's role in this is really to be a
gatekeeper and an assistant in the process. So, with that said, unfortunately,
the memo details that in light of new law that was recently passed by the
Montana legislature, the signature gathering deadline in this process likely
expired on July 13th. That means regardless of the lawsuit that's pending, and
any of the claims that are filed there, the statutory guidance in this new
section of law is fairly clear that that likely expired on July 13th. The issue
is governed by a new set of statutes. The code annotated is 13-28-206. It is
laid out very simply in the memo, and I won't go through it in detail. But I
think it's important to note that the election administrator was correctly
operating under the previous standard for date of certification. That is,
signatures needed to be gathered in enough time that there was a gap that the
election administrator could verify signatures and then forward it on to the
Secretary of State for certification of the ballot. That's how the process
works in Montana.
Problem is, in the 2025, well, it's not a problem, it's just the law now. The
law now, since 2025, and the Yellowstone County, nor many counties have gone
through this process since the law has changed, created a new deadline for
that. And it's a little bit confusing. Essentially, it's 113 days before the
election date where these signatures have to be presented to be verified and
then certified by the election administrator for the county. And so that date
would be July 13th. So that is an issue. So, with the memo that we drafted to
the election administrator, and I just found out in talking with Mr. Williams
this morning, it sounds like one of the parties is on to this issue as well. They've
already filed an action in district court as of yesterday afternoon. So, this
is evolving very rapidly. Commissioner Morse asked n action involving this? Mr.
Twito replied, yes. We did not join in that. We never joined in blocking
folks gathering signatures with regard to the pendency of the validity of the
initiative that we filed back in July. But let me go through the timeline,
which starts on page two of my memo. And perhaps, Chairman, this would be
easier for the Commission. If you want to ask me any questions as we go through
this timeline, I certainly could do that. Let me begin by just saying people
need to keep this in mind as we go through this timeline. Yellowstone County
is a general powers county. For those of you that don't understand that it
means that the county, your actions, my actions, only have the authority that
the Montana legislature has explicitly or impliedly granted to us. Okay? That's
either statutes or courts interpretations of statutes. That is the authority
that we have. Okay? So that's what we're supposed to do. Okay. So, with
regard to the timeline, there is a process, albeit a new process, for a person to
petition for a local ordinance. In this particular case, specifically, this is
an ordinance to regulate the construction or build of a data center,
essentially. Okay. So we were, the Yellowstone County, the elections office on
June 9th, just a few months ago, a month and a half ago, was contacted about a
proposed ordinance regulating data centers. They were going to start the
initiative process. The elections office then advised under what their belief
was that the signatures would need to be submitted by August 12th, 2026. So
pretty tight deadline. In speaking with the elections office, they made it
crystal clear to the petitioner that this is an abbreviated timeline. We just
didn't realize how abbreviated it was until we worked on this memo last week. They
were already operating under an abbreviated timeline. By June 12th, the
petitioner submitted their proposal for review as to form by the county. Now
the law is crystal clear. The law granted to the county attorney's office with
regard to the initiative process is, first off, we look at the language and we
approve it to form. Okay, that process goes on. The law actually allows us 21
days to look at that. And if we object, there's a process, but we try to do it
as quickly as possible. So, our civil division worked with the elections
office, began to work with legal counsel for the petitioner in this process, as
you can see. So, on June 15th, petitioner submitted an amended initiative just
changed it. Again, the Elections Office stated by e-mail that signatures were
due by August 12th. We then, so the date is when it's submitted, we have the
21 days. And that is, has to be proved for legal sufficiency before signatures
can even be gathered legally. Okay, so we're trying to get this done. So, we're
working on when changes are being made, we're communicating with their legal
counsel. Unbeknownst to us, as this process is being undertaken, on June 23rd,
2026, the Montana Supreme Court issued a decision in Treasure County versus
Edland. So that week, the 23rd I think is at the beginning of that week,
obviously we try to stay up to date on cases that affect our general powers,
right?
We didn't see it that week immediately. We tried to review, but we didn't see
Edlund. On June 25th, we worked with the petitioner's attorney and approved the
petition as to form. So, we completed our first task in the initiative
process. Okay, so the county completed its task under the operative statutes
and approved the petition to form. So, at that point, signatures can be
gathered as of June 25th when it's approved to form. However, within like a
day, we became aware of the Edlund decision. That raised concerns to me specifically
that the initiative might be in jeopardy. And again, I'm not going to comment
on what the court's going to rule, but what I'm going to say is that I'm
required by law, I took the oath just as you did, that I've got to follow the
law, and Edlund raised concerns. And I think anybody, even a layperson that
would read the Edlund decision, would say, oh, you probably need a legal
determination, i.e. a court decision before this can go forward. And so that's
when I presented. We reached out to petitioner's attorney. Mr. Williams and I
spoke with the council for the Quantica. We had communication, and we worked
with both sides. We told them this Edlund decision is causing the county
attorney concern. We ask for any information that would be helpful. We did
not get additional information. So based on that, I presented to you guys on
June 30th, right at this podium, and told you, and this led to a lot of
consternation, like we're trying to prevent this process. That's not what
we're trying to do. We're just trying to get a legal determination to see if
this process is even legal under the law. And that's my duty to you guys. And so,
we did that on June 30th. Then on July 1st, the elections office
did send all of the dates of which they needed the ballots by in order to get
it to the Secretary of State for certification again, unfortunately operating
under the old standard that was in place as recently as last year. So, when we
decided to file the action in the related to the Edlund decision, the current
pending issue, it's for the legal validity of the initiative. It's not, we just
want a court determination in interpreting the Edlund case. The problem is, I
think what set a lot of people off is that the councils for the data center
folks, the Quantica folks, jumped in on that lawsuit. And it seemed like we
were partnering up with them. We're not. In fact, we didn't join the last two
things that they filed. We're not doing that. But we can't prevent them from
doing that. When they are going to be affected by an outcome that is raised in
law under Montana procedure, they can jump into the suit. The irony of that is
the statute, and it's one of a very unique statute that allows us to challenge
the validity of this, that actually prioritizes the lawsuit. And it's the
legislature has specifically said because the initiative process is so
important, if the county, not a private party, not the data center folks, if
the county does it, then the court must make it a priority to issue a decision,
right? The idea is, the intent is behind that, that weighting the dependency
of whether this is valid so they can gather signatures, they can go and they
can start the initiative process. And so, we decided one of the factors that I
said why we're going to do this when I present it to you guys is that we can
get this prioritized. So, we can get this answer so these folks can go on with
their initiative process if it's valid or we can at least have a legal
determination why it is or isn't or what's the holdup? And so that was
actually, if you think about it, ironically, in light of the comments that you
guys have faced, we actually, we were trying in an effort to get this done
quickly so we could get this answer so they could continue to move on with the
process. I would argue that if we didn't do it, if we just did nothing, I could
almost guarantee you that another party would have, and they wouldn't have had
that prioritization. So, we were trying to do it for the benefit of all people
to get that answered. Okay. So, we did it on July 7th we had 14
days to file, so we did it like day 12 or day 13. And then we stayed out of,
like I said before, we stayed out of all other lawsuits that the data center
folks were involved in, including signature gathering. They, I think, argued in
that, the argument in that case before the court is whether they can gather
signatures during the pendency of the lawsuit. But we stayed out of that. And so,
we don't, we, that's not the issue that we brought forward. And then,
unfortunately, and you have the memo before you, late last week, our civil
division discovered the issue with the ballot, or excuse me, the signature
gathering deadlines. And I very strongly believe that that deadline was July
13th. So, this whole process didn't even get kick-started until June 9th. The
county didn't even know that this was going to be a process that was going to
be undertaken until June 9th. And so, under that time frame, July 13th, was
the deadline now. We reached out, the election administrator, since last week,
has reached out to the Secretary of State. We have not gotten a statement from
them with regard to whether the statute that is still in operation, that
contains the certification deadlines for the Secretary of State. In fact, you
can simply, anybody can go to the Secretary of State's website and see that
they're still holding August 20th, 75 days from the election as the deadline for
ballot and candidate certification. Unfortunately, they haven't responded. I'm
just telling you, and I'm telling the election administrator, my best advice is
13-28-206 applies for the local certification for the local initiatives. So, we
reached out. I know Mr. Williams in my office has spoken to the council for the
data centers. I spoke personally with the petitioner’s council yesterday to
inform them. I provided the memo to them. I'm not shying away from the memo. I
want the public to be understand what we're working with here. But that is a
problem. And so that could potentially affect the validity lawsuit that we
filed. Again, I don't want to comment on what the court's going to do in terms
of that. I'm speculating here, but it's possible that the court, because the
time to gather signatures for the local initiative has expired under this law
that I've laid out, and so they might decide that's moot. Okay, and so that's
a problem because Yellowstone County, I still think we need to determine the
validity of whether these type of initiatives can move forward in the future.
There is a process in the new law that we worked on in this memo. You can see
in the last paragraph of the memo, and that's the important thing. And that's
primarily the discussion that I had with the petitioner’s council yesterday to
explain to them the issue. And again, they got to make those determinations. I'm
not going to make the determinations for them, but they may need to work with
the elections office if they want to continue the initiative process obviously
pending the validity issue. I say that in context. The petitioner would then
need to ask for a special election, and I'll leave that to the election
administrator and the petitioner and petitioner's council if they if that's the
road they want to go, or they may challenge the current statute on signature
gathering. That's entirely up to them. I'm not going to prevent them from
doing that. But they need to, if they decide to go down that road, then they
would have to do a call for a special election. So, my hope is that they would
work with the election administrator for that. In speaking with the elections
yesterday, it sounds like they have been working with the petitioner and
petitioners' council trying to help them in this process, and I hope that
continues. But that's the issue before you. And so, I just want to, like, I
just want to say that, again, the county's role in this is to not impede, but
it's to do it right. Because I, if I didn't think that there was a question as
to the validity and I just let it go, I would be doing this community a
disservice, I would be doing the commission a disservice and not raising that
issue for the time so we can figure out whether it's valid or not. And so, I
just think that it's gotten a little bit twisted here in terms of your role in
this process, my role in this process, and the county's role. Commissioner
Waters stated for everyone, and the public record here is you can confirm, did
we ask you to bring the lawsuit on based on the case? Mr. Twito replied, no,
in fact, that was developed in lengthy conversations with my civil division. We
brought it to you. Commissioner Morse stated also, I guess we should be clear
that we never prevented the petitioner from gathering signatures throughout
this entire process? Mr. Twito replied, we never did. We never wanted to do
that. That wasn't our intent. There was some, we got a little bit sidetracked
because the county had been working on something for months in terms of
signature gathering in county property and county buildings. We withdrew that.
Pretty simple. It's just a time, place, and manner idea we want people to use
public areas to gather signatures. We're just trying to balance. And the goal
of that was just to try to balance the, you know, taxpayers coming down to do
business down in the county building, concert goers going to the Metra. We
just wanted to make sure that we balance that out. So that was not done directly,
and we will revisit that and deal with it properly. But we do need we do need
a policy, but I will work on that now to make sure it's done correctly. Commissioner
Morse asked, any other point? Commissioner Waters replied just because we have
a chance to, there's a lot of legal ramifications surrounding the signature and
also has been brought up by the public regarding the data center proposals in
Yellowstone County. I just for you as our county attorney, for the public, do
county commissioners govern water rights and its usage in Montana? Mr. Twito
replied, no. Again, Commissioner Waters, you are, through the commission, the
county is a general powers county. You only have powers granted to you expressly
by the legislature, the people that are responsible for those sort of things
are the state would be like the Montana Department of Natural Resources, the
Montana Department of Environmental Quality. Those are the entities that
regulate those things. The county does not do that. You have extremely limited
things, but nothing that would be applicable here. Commissioner Waters stated
that is our understanding as well. And also, do county commissioners govern
power rates and power usage in Montana? Mr. Twito stated they do not. We have
no authority over that. Commissioner Waters replied all right. So, let's get
to another matter. Are there certain legal considerations for a county
government to declare emergency moratoriums especially in Yellowstone County,
where there's unzoned land. Mr. Twito replied no, you don't have that ability
with unzoned land. That's not how it works. If somebody was comparing it to
what they attempted to do in Missoula County, there is substantial differences
there. And I would advise you, no, you do not under any circumstance. Commissioner
Waters stated finally, thank you for the record as well, does the Right to
Compute Act that was passed by the last legislature in Montana. Does that
complicate matters regarding any kind of ordinances or regulations related to
data centers? Mr. Twito stated absolutely. In fact, I believe that the Montana
Association of Counties has briefed several of you with regard to this
recently. We got to see how it unfolds. But it's so broad and it's a sweeping
right that I would advise you as your counsel, I'd be very careful because
their definition of any government action that impugns on that right that the
legislature gave them opens us up to liability. So, it's a significant concern
moving forward. Commissioner Waters thanked Mr. Twito. Commissioner Morse
asked Commissioner White it he had any comments. Commissioner White replied, no.
Thank you for explaining everything in the timeline. I appreciate it. Mr. Twito
stated, again, I'm here for this. I'm happy to answer any questions you have.
Again, it's not easy. I feel terrible for my action asking for you to file the
suit to determine the validity of whether this initiative process is valid in
light of that recent development of that Edlund case. I mean, the timing here
is terrible. But the timing was terrible from the outset because now that we're
here, according to this new law, again, just passed last year, those signatures
had to have been gathered by July 13th. We didn't know about it until a month
earlier. We couldn't even review it until earliest, I'd say would be June
15th, we would have 21 days. If our office didn't try to work with them and
work with them as rapidly as we did within that time frame, we could have
intentionally run out the clock, essentially, if we wanted to. That was not our
intent. We wanted to get this done knowing the spirit of what the election
administrator told the petitioner in the processes you're under a tight
deadline, even if they were operating under the wrong deadline. We wanted to
move as quickly as we could. The Commissioner’s thanked Mr. Twito.
FINANCE – Notice of Public Hearings for Considering the Final Budget for FY26-27; Setting FY27 County Mills; and the Budget Amendments for FY26 – Setting the Hearings for Tuesday August 25, 2026, and Tuesday September 1, 2026, at 9:00 a.m. in Room 309 of the John V. Ostlund Building. Commissioner Waters made a MOTION to approve the Notice, Commissioner White seconded. Passed Unanimous.
CLAIMS – Batches 26-191, 27-006 and 27-007. Commissioner White made a MOTION to approve the Claims, Commissioner Waters seconded. Passed Unanimous.
CONSENT AGENDA - 1. COMMISSIONERS – Commissioner Day at the Fair 2026. 2. COUNTY ATTORNEY – A.) Professional Services Agreement with Pine Technologies. B.) Thomson Reuters – WestLaw Legal Research Contract. 3. FINANCE – A.) Resolution 26-92 to Create RSID 925M to Maintain Dry Hydrant in Maplewood Estates Sub. B.) Resolution 26-93 to Create RSID 926M to Maintain Roads in Maplewood Estates Sub. C.) Resolution 26-94 to Create RSID 927M to Maintain Parks in Maplewood Estates Sub. D.) PSMHML FY27 Request – Community Crisis Center. E.) PSMH Request for Behavioral Health Assessment & Transition Initiative Phase I – New Day Ranch. F.) Resolution #26-95 Travel & Per Diem Rates July 1 – December 31st, 2026. G.) Motor Vehicle Memorandum of Understanding between Yellowstone County and the Montana Department of Justice’s Motor Vehicle Division. H.) MetraPark Contract – VIP Services – Janitorial Services for MontanaFair 2026. 4. PLANNING DEPARTMENT – A.) Final Resolution 26-96 for Zone Change 735 – 1232 Johnson Ln – A to I2 – A Zone Change Request from Agriculture (A) to Heavy Industrial (I2). B.) Final Resolution 26-97 for Zone Change 736 – 5415 Rustic Ave. – RR3 to RR1 – A Zone Change Request from Rural Residential 3 (RR3) to Rural Residential 1 (RR1). 5. PUBLIC WORKS – Vehicle Title for Trade In. 6. HUMAN RESOURCES – PERSONNEL ACTION REPORTS – Sheriff’s Office – 3 Appointments, 3 Salary & Other; IT – 1 Appointment; Detention Facility – 1 Appointment, 1 Termination; District Court – 1 Appointment, 1 Salary & Other; County Attorney – 1 Termination.
FILE ITEMS – 1. AUDITOR – Payroll Audit July 1 – 15, 2026. 2. COMMISSIONERS – A.) DUI Task Force Annual Plan Acceptance. B.) Notice of Proposed Opencut Mining Permit Application. 3. FINANCE – Grant Completion Report and Final Request for Funds for the West Billings Neighborhood Plan Update Grant. 4. HUMAN RESOURCES – July 1 – July 15 Payroll Audit. Commissioner Waters made a MOTION to approve the Consent Agenda and place the File Items to file, Commissioner White seconded. Passed Unanimous.
PUBLIC COMMENTS ON COUNTY BUSINESS – Hearing no comments Commissioner Morse adjourned the meeting at 9:28 a.m.
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