The State of the States in Environmental Dispute Resolution:
MONTANA










 

Current Projects: United States Postal Service Employment Arbitration Indiana Dept of Env. Management Indiana ADR Providers Shared Neutrals Pilot  U.S. Dept. of Justice
Completed Projects: U.S. Env. Protection Agency EDR State of States 

Occupational Safety & Health Review Commission

 National Institutes of Health Focus Groups Sessions  

Status:
The Montana Consensus Council (MCC), attached to the Office of the Governor for administrative purposes, is a public-private partnership designed to foster agreement on complex public policy issues.

Legal Authority:
MONT. CODE ANN. §§ 27-5-111 to -324 (1997) (codifying the Montana Uniform Arbitration Act, which authorizes the use of arbitration agreements and establishes law governing the validity of and procedure used in arbitrations).

Contact Information:
     Matthew McKinney, Executive Director
     Montana Consensus Council
     219 State Capitol
     Helena, MT 59620-0801
     Phone: (406) 444-2075
     Fax: (406) 444-5529
     E-mail: mmckinney@mt.gov

     Will Harman, Communications Coordinator
     600 Hauser Blvd.
     Helena, MT 59601

Program Summary

Montana Consensus Council:
The MCC was created in January 1994 by executive order of the governor with seed money provided by the legislature. It is a cooperative project between the public and private sector, receiving some funding from the state legislature. However, most of its financing is from grants or service fees. The MCC consists of a board of directors, two full-time facilitator-mediators, and a handful of consultants.

The MCC focuses on building consensus instead of providing other EDR services. The MCC has produced thirty-nine publications, ranging from pamphlets to a two hundred page training manual. It has also performed approximately forty educational and training sessions on managing public policy disputes. The MCC has developed process designs and provided facilitation for eighteen different projects over the course of its existence. Although the MCC has provided facilitation services for different types of disputes, including campaign finance reform, the MCC is primarily concerned with natural resource disputes. Ten projects resulted in an agreement, and several are ongoing as of the time of this publication.

In 1994 the MCC mediated a dispute over the amount of instream flows into Montana creeks and rivers that resulted in an agreement whereby state agencies and nongovernmental organizations can lease excess water from water rights holders. By an overwhelming margin, the state legislature adopted legislation codifying the agreement. Leasing of stream flows has actually occurred since the agreement. This success alerted many people to the possibilities of consensus building as an approach to public dispute resolution.

Another MCC facilitation resulted in amendments in 1997 to the state Superfund law which clarified defenses to and created exemptions from joint and several liability for owners of state Superfund sites.15   Environmentalists were reluctant to accept a diminution of liability, but all stakeholders were able to reach an agreement calling for a more equitable system of apportioning liability. Legislation was passed implementing this agreement as well.

The MCC facilitation has also helped develop zoning law in Helena. Stakeholders agreed to a process for reviewing applications for major new housing subdivisions. Given that many areas in Montana are experiencing double digit population growth, there is some hope that the Helena agreement will serve as a model for other Montana municipalities. Other disputes have involved fisheries planning on reservoirs, private access to public lands, and recommendations on reauthorizing the federal Endangered Species Act.16

The MCC also maintains an active research and evaluation program. All processes are extensively evaluated by the MCC. Participants in consensus processes are asked to rate their level of satisfaction with the processes in which they have participated. The MCC also produces biannual progress reports on the overall performance of the organization.

Lessons Learned

  • There are benefits to having a public-private cooperative arrangement. Receiving the majority of funding from private sources and fees emphasizes the value citizens of the state place on the MCC. With private funding, the MCC is less vulnerable to a decrease in funding from any one source. In addition, the state could probably not afford to fully fund the MCC.
  • Evaluation is crucial. In fact, the MCC is important not merely for its participation in dispute resolution, but also for providing a historical framework for understanding how decisions are made, thus creating an institutional memory of experiments.
  • "Closurephobia" is common. It is often not as difficult for groups of stakeholders to reach agreement as it is for them to finalize the agreement. At this stage of the process, participants often threaten to back out or demand additional meetings. Part of this fear results from participants’ increased understanding of the positions of other stakeholders. The participants, better than their constituents, understand other stakeholders’ positions and are therefore willing to make agreements their own constituency would not. Facilitators can often reduce this problem by going directly to the constituencies themselves.
  • When an authority (such as a legislature) mandates use of a consensus process to resolve a particular issue, participants may feel compelled to take part, even though they believe a more favorable outcome could be achieved by other means. Consensus is unlikely in such cases.
  • Allowing stakeholders to select their own representatives and define the agenda creates a sense of shared ownership in the process and its outcomes.

Further Information

Publications

Susan A. Moore, Defining ‘Successful’ ADR: Case Studies from Public Land Planning in the United States and Australia, 16 ENVTL. IMPACT ASSESSMENT REV. 151 (1996).

Matthew McKinney, The Challenge of Funding Consensus-Building Processes, NEGOTIATION  J., July 1997, at 235.

E. Franklin Dukes, Inst. for Envtl. Negotiation, University of Va., Assessment and Recommendations for Evaluation of the Montana Consensus Council: Final Report (1998).

15  See Act effective July 1, 1997, 1997 Mont. Laws ch. 415.

16   16 U.S.C. §§ 1531–1544 (1994).

Indiana Conflict Resolution Institute
Last updated: June 1999
Comments: ICRI Administrator
Copyright 1999 - Indiana University, Bloomington