Local Initiatives Cannot Create Countywide Land-Use Permitting Regimes Outside Title 76 (Treasure County v. Edlund)

1. Introduction

In Treasure County v. Edlund, 2026 MT 134 (DA 25-0498), the Montana Supreme Court affirmed a declaratory judgment holding invalid a proposed citizen-initiated county ordinance that would have created a detailed countywide permitting, enforcement, penalty, appeal, and decommissioning regime for wind energy conversion systems (WECS).

Parties. Treasure County, Montana (through its Board of County Commissioners) sued as Plaintiff/Appellee; Ruth Laura Edlund, pro se, was Defendant/Appellant.

Key issues. (1) Whether the proposed ordinance was invalid under § 7-5-135, MCA (2023) because it was not within the County’s “legislative jurisdiction and power” under § 7-5-131(1), MCA (2023); and (2) whether the District Court issued an advisory opinion.

Procedural posture. After Edlund submitted an initiative petition, the County invoked § 7-5-135, MCA (later repealed in 2025) to seek a pre-election declaratory ruling on whether the measure would be valid and constitutional if enacted. The District Court granted summary judgment to the County on invalidity and declined to reach constitutionality.

2. Summary of the Opinion

The Supreme Court affirmed on a narrow ground: the ordinance, as drafted, would not be a valid exercise of county legislative power because it attempted to regulate land use and implement a countywide WECS permitting/enforcement scheme under the County’s general authority (§ 7-5-2101, MCA) even though the Legislature has specifically prescribed county land-use and zoning authority in Title 76, chapter 2, parts 1 and 2, MCA.

The Court emphasized it was not holding that local electors may never use initiative power for measures affecting land use. Rather, this particular ordinance could not proceed because it lacked valid statutory footing and contained central operative provisions that exceeded the County’s authority (including permitting, enforcement, penalties, appeals, and decommissioning).

The Court also held the District Court did not issue an advisory opinion; any comments about alternative statutory routes were dicta and did not undermine the conclusive judgment on the proposed ordinance’s invalidity.

3. Analysis

A. Precedents Cited

1) The nature and scope of § 7-5-135 review: subject-matter inquiry is required

Ravalli Cnty. v. Erickson, 2004 MT 35, ¶¶ 15-19, 320 Mont. 31, 85 P.3d 772, anchors the Court’s approach: a challenge under § 7-5-135 necessarily examines the subject matter of the proposed action to determine whether it would be valid and constitutional if enacted. The Court used Ravalli Cnty. to reject the characterization that the County was attacking the initiative process itself; instead, it was invoking the statutory pre-election validity screen the Legislature provided.

2) Standards of review and summary judgment in declaratory actions

The Court relied on Gardiner-Park Cnty. Water & Sewer Dist. v. Knight, 2024 MT 121, ¶¶ 12-13, 417 Mont. 1, 549 P.3d 1151, and 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, for de novo review of legal conclusions and statutory interpretation in summary judgment.

3) Reconciling general and specific statutes (the core validity holding)

The Court applied the canon that specific statutes control over general ones in conflict: State v. Smith, 2004 MT 191, ¶ 17, 322 Mont. 206, 95 P.3d 137, and State v. Feight, 2011 MT 205, ¶ 21, 306 Mont. 312, 33 P.3d 623, support the “minute and definite” statute prevailing over general authority.

Relatedly, Trustees, Carbon Cnty. Sch. Dist. No. 28 v. Spivey, 247 Mont. 33, 36, 805 P.2d 61, 63 (1991), is cited for the presumption against implied repeal of specific schemes by later general enactments—important because nothing in the local-initiative statutes purported to repeal Title 76’s zoning frameworks. Clark Fork Coalition v. Mont. Dep't of Natural Res. & Conservation, 2021 MT 44, ¶ 60, 403 Mont. 225, 481 P.3d 198, reinforces the presumption the Legislature acts aware of its enactments.

4) Harmonizing statutes and preserving initiative power within legal constraints

State v. Triplett, 2008 MT 360, ¶ 25, 346 Mont. 383, 195 P.3d 819, supplied the directive to construe statutes harmoniously where possible. The Court used this to avoid an overbroad rule that land-use initiatives are categorically barred; instead, it reconciled § 7-5-131(1), MCA (initiative power limited to ordinances within governing body authority) with Title 76 (specific land-use powers).

The Court also cited Town of Whitehall v. Preece, 1998 MT 53, ¶ 18, 288 Mont. 55, 956 P.2d 743, for broad construction of initiative power, but only within statutory confines.

5) Land-use direct democracy: what prior cases do (and do not) establish

Edlund relied on Greens at Fort Missoula, LLC v. City of Missoula, 271 Mont. 398, 897 P.2d 1078 (1995), and Town of Whitehall v. Preece, but the Court distinguished them because they involved citizen referendums repealing existing city-enacted land-use ordinances—not a citizen-authored countywide permitting/enforcement regime.

The Court treated Egan Slough Cmty. v. Flathead Cnty. Bd. of Cnty. Comm'rs, 2022 MT 57, 408 Mont. 81, 506 P.3d 996, as supportive of its statutory approach: in Egan, the initiative expanded an existing citizen-initiated zoning district under express authority (§ 76-2-117, MCA), and it did not create new regulations or bypass the planning/zoning commission’s regulatory role. By contrast, Edlund’s ordinance attempted to create a new countywide permitting and enforcement architecture outside Title 76’s procedural and institutional requirements.

The Court cited Egan Slough Cmty., ¶ 32, to characterize zoning as regulation of growth and development, supporting its conclusion that Edlund’s WECS ordinance was effectively land-use/zoning in substance.

6) Initiative power has constraints; statewide initiative cases are not transferrable

Cottonwood Envt'l L. Ctr. v. State, 2024 MT 313, ¶¶ 14-16, 419 Mont. 457, 560 P.3d 1227, was used to underscore that initiative power (including at local levels) is not unlimited.

The Court distinguished 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, because those addressed statewide initiatives enacted under statewide legislative authority, not the narrower “legislative jurisdiction and power” of a county governing body.

7) Constitutional avoidance and the conjunctive “valid and constitutional” requirement

The Court applied the principle of avoiding unnecessary constitutional rulings, citing Solem v. Dep't of Revenue, 2024 MT 217, ¶ 26, 418 Mont. 176, 557 P.3d 919.

It also emphasized that § 7-5-135 poses a conjunctive test—“valid and constitutional”—citing Helvik v. Toscano, 2025 MT 150, ¶ 36, 423 Mont. 85, 571 P.3d 1058, and American Fed. S&L Ass'n v. Madison Valley Props. Inc., 1998 MT 93, ¶ 26, 288 Mont. 365, 958 P.2d 57. Once invalidity was established, constitutional analysis was unnecessary.

8) Advisory opinion doctrine

Rejecting Edlund’s advisory-opinion claim, the Court relied on Plan Helena, Inc. v. Helena Reg'l Airport Auth. Bd., 2010 MT 26, ¶ 9, 355 Mont. 142, 226 P.3d 567, and Arnone v. City of Bozeman, 2016 MT 184, ¶ 14, 384 Mont. 250, 376 P.3d 786, to define a justiciable controversy. The County sought concrete relief (a declaration of validity/constitutionality) authorized by statute; the judgment resolved that dispute.

B. Legal Reasoning

1) The operative limitation is “legislative jurisdiction and power,” not the list of excluded subjects

A critical move in the Opinion is separating two different statutory constraints:

  • § 7-5-131(2), MCA (2023) lists certain subject matters excluded from initiatives (land use is not listed).
  • § 7-5-131(1), MCA (2023) independently restricts initiatives to ordinances “within the legislative jurisdiction and power” of the governing body.

The Court refused to create a categorical land-use carveout, but held the measure still must fit within the County’s delegated authority. This frames the case as one about institutional competence and delegated power, not voter motive or policy merits.

2) General county “authority” cannot be used to bypass specific land-use statutory schemes

Edlund’s ordinance invoked the County’s general authority under § 7-5-2101, MCA, which applies only “under such limitations and restrictions as are prescribed by law” and “where no other provision is made by law.” The Court treated Title 76’s planning/zoning statutes as the “other provision” that occupies the field of county land-use and zoning regulation—particularly where permitting and enforcement mechanisms are created.

3) Title 76, chapter 2 provides the relevant “permission structure” for zoning and permits

The Court’s statutory mapping matters:

  • Under Title 76, chapter 2, part 1, MCA (citizen-initiated county planning/zoning districts), the permitting role is reserved to the CPZC (§ 76-2-108, MCA), not the commissioners as a general permitting board.
  • Under Title 76, chapter 2, part 2, MCA (county-initiated zoning), commissioners may provide conformance permits (§ 76-2-207, MCA), but must follow required procedures, enforcement structures, and appeal mechanisms (including the board of adjustment and writ-of-certiorari review under § 76-2-227, MCA).

Because Edlund’s ordinance did not proceed under either part 1 or part 2—and because its central operating provisions conflict with or exceed those parts’ delegated powers—the ordinance could not be “valid” if enacted.

4) The Court identifies “central operative provisions” as the fatal defect

The Court did not invalidate the measure on technical drafting errors. Instead it focused on provisions that would require the County to act without authority, including:

  • Commission-issued WECS permits and an ordinance-specific permitting process not authorized outside Title 76’s schemes.
  • A penalty of $10,000 per day, conflicting with county penalty limits in § 7-5-109, MCA and the zoning penalty provision in § 76-2-211, MCA.
  • Appeal and enforcement structures inconsistent with Title 76’s prescribed review mechanisms.
  • Decommissioning and other compliance mechanisms that depend on the invalid permitting/enforcement regime.

5) Severability cannot “create” authority or require judicial rewriting

Although the ordinance included a severability clause, the Court held severability cannot supply missing statutory delegation, and a court cannot rewrite a ballot measure into a materially different ordinance—especially where the severed parts are the measure’s functional core (“to outline a permitting process”).

6) Constitutional claims were properly avoided once invalidity was found

Because § 7-5-135 requires the proposed action to be both valid and constitutional, and because invalidity alone defeats ballot placement, the Court approved the District Court’s choice to decide the case on nonconstitutional grounds. This reinforces that § 7-5-135 litigation is not necessarily a forum for broad constitutional pronouncements about citizen lawmaking.

C. Impact

1) Practical rule for local initiative drafters: tie land-use regulation to Title 76 authority

The Opinion effectively establishes a drafting and authority rule: when a citizen initiative would create a land-use permitting and enforcement system, it must rest on the specific statutory authority that delegates those functions and must conform to the procedures and institutions the Legislature specified in Title 76, chapter 2 (and potentially other land-use statutes, as the Court notes the MLPA exists though not at issue).

2) No categorical ban—but a strong “delegation check”

The Court’s narrow framing preserves room for future land-use-related initiatives (e.g., those that operate within existing Title 76 frameworks, or that seek actions expressly within commissioner power), while sharply limiting attempts to use general county powers to implement comprehensive zoning/permitting schemes by popular vote alone.

3) Reinforcement of Egan’s statutory lens

By distinguishing Egan Slough Cmty., the Court signals that validity turns on whether the initiative aligns with the specific land-use powers the commissioners actually have under Title 76 (e.g., expanding a district under § 76-2-117) and whether it avoids bypassing the statutory planning/zoning bodies and procedures.

4) Consequences for renewable energy siting disputes

For WECS and other large infrastructure siting controversies, the decision pushes regulatory efforts toward established land-use enabling statutes. Counties and citizens remain free to pursue wind regulations, but the mechanism must be one the Legislature has authorized (and must respect penalty ceilings and review processes).

4. Complex Concepts Simplified

  • “Legislative jurisdiction and power”: a local initiative can only propose what the local governing body could lawfully enact and administer under statutes delegating authority to it.
  • General vs. specific statutes: when a general grant of power (Title 7) overlaps with a detailed scheme (Title 76 zoning), the detailed scheme controls for that subject.
  • Citizen-initiated zoning (Title 76, part 1): typically district-based; relies on a planning/zoning commission (CPZC) that plays a central role in permits and development patterns.
  • County-initiated zoning (Title 76, part 2): zoning adopted by commissioners following mandatory public procedures and institutional steps (including boards of adjustment and specified judicial review).
  • Severability: a clause allowing invalid parts to be removed; it cannot create authority the government does not have, and cannot justify judicial rewriting of a measure’s essential design.
  • Advisory opinion: courts cannot decide hypothetical questions; here, the court decided an actual statutory challenge to a specific proposed ordinance. Extra commentary (dicta) does not invalidate a concrete judgment.

5. Conclusion

Treasure County v. Edlund clarifies that Montana local initiative power is broad but not self-executing: a voter-authored county ordinance must still fall within the county commissioners’ delegated authority. Where an initiative would establish a countywide land-use permitting and enforcement regime, the measure must conform to the Legislature’s specific land-use and zoning frameworks in Title 76, chapter 2, and cannot be grounded solely in general county powers under Title 7.

The Court’s decision is intentionally narrow—preserving the possibility of differently drafted, properly authorized measures—while providing a clear doctrinal checkpoint: citizen initiatives cannot expand local governmental power beyond what state law has delegated, particularly in the highly structured area of land-use regulation.