Residents allege Yellowstone County swapped maps, cut public out of process for Laurel power plant

A controversial new methane-fired electric plant being built by the state’s largest public utility hit another bump on Monday as a group of residents filed a lawsuit charging Montana’s largest county with intentionally switching zoning maps, cutting the public out of the process and railroading the project to NorthWestern Energy’s advantage.

A lawsuit, filed by four residents — Kasey Felder, Aaron Felder, Michele Kelley and Steve Krum — said that the Yellowstone County Commissioners have switched maps intentionally during a rezoning process to hide the heavy-industrial use zoning that is necessary for an 18-turbine power plant being built close to the Yellowstone River and CHS refinery in Laurel.

It asks a Yellowstone County District Court judge to reverse the county commissioners’ approval of a growth policy, and send the matter back to the county’s zoning board for a redetermination of the zoning.

The lawsuit also accuses Yellowstone County Commissioners of playing games or cutting out public comment altogether. It also accuses longtime county commissioner John Ostlund, a Republican, of appearing on promotional videos for NorthWestern Energy’s power plant while casting a vote on the project.

Phone messages for the Yellowstone County Attorney’s Office were not returned Monday afternoon.

The lawsuit, filed on Monday and assigned to Yellowstone County District Court Judge Rod Souza, alleges that the commissioners have repeatedly shut the public out of participation and comment in the planning board meetings, contrary to the Montana Constitution.

The plaintiffs said that no member of the public was allowed to speak during some of the planning sessions unless requested by a member of the planning board. It details two meetings in January where the planning board met but no public input was taken.

Moreover, the lawsuit claims that a series of changes to an updated growth policy map involving the area around the new power plant were made several times “with no explanation to the public for the changes. Different color coding and keys made it difficult to understand the reasoning behind the succession of maps.”

Maps that were included in the 2020 Growth Plan did not include NorthWestern Energy’s land where the power generation plant is located, according to the suit.

“Yet, the land use maps accompanying the 2023 Revised Growth plan show an area, including a sliver of NorthWestern Energy’s land, designated as (heavy industrial). The Planning Board was unable to explain or justify this change in designation, and the plaintiffs have been unable to locate any documentary support for this change,” the lawsuit said. “Until that question is answered, it is questionable whether any of NorthWestern Energy land was ever properly designated heavy industrial.”

The group of residents claim that even after the Planning Board’s updated plan, the county commissioners made several other modifications, including changing the land from agriculture to heavy industrial.

“The county board justifies changing NorthWestern Energy’s land use designations by saying that the planning board’s maps were erroneous. However, the record of the Jan. 31, 2024 meeting show that the Planning Board knew exactly what it was doing. Video from that meeting show that the Planning Board expressly declined a request to change the designation of land between Interstate 90 and Yellowstone River,” the suit said.

Attorney Gene R. Jarussi said in the lawsuit, “the Planning Board agreed the commercial businesses along the interstate ‘did not want to look at some smokestacks.’”

The suit also claims that NorthWestern has capitalized on the gray area of zoning that existed in the location between the City of Laurel and Yellowstone County. Meanwhile, residents in the area and county have waged a public information and relations battle against NorthWestern Energy for using more fossil-fuel based energy generation in a place where air quality standards due to industrial businesses, for example, a refinery, have always been a concern.

“NorthWestern Energy proceeded at its own risk, taking advantage of a cloud of confusion that surrounded local zoning jurisdiction at the time, to move ahead with its plans,” the lawsuit said. “The County Board’s substitution of maps before adopting the Updated Growth Plan was not the product of any principled analysis and did not include any consideration of the serious impacts of this controversial project on the community or surrounding areas.”

Bullying board members?

The lawsuit also accuses two of three County Board members of telling members of the public that there was nothing the public could do to stop the plant. The lawsuit calls out Ostlund by name. Furthermore, it accuses Ostlund of appearing on a promotional video for the plant prior to the commissioners’ decision about zoning.

“Two county board members, each on separate occasions, advised members of the public that (1) public comment about the methane plant didn’t matter because the county board already knew what it was going to do; and (2) the methane plant would be built and there was nothing anyone could do about it,” the lawsuit said.

The lawsuit charges that Ostlund appeared in a promotional video put out by NorthWestern Energy that promoted the plant, but the video was “immediately removed” after the April 2 adoption of a growth plan.

“The evidence of bias and a predetermined outcome taints the entire endeavor and constitutes an arbitrary and capricious exercise of the County Board’s authority,” the lawsuit said. “While the County Board has leeway in deciding whether to adopt, modify or reject a growth plan, its discretion is not boundless and unfettered.”