Archive for April 3rd, 2009

by jhwygirl

Dear Speaker Bergren and President Story:

In accordance with the power vested in me as Governor by the Constitution and the laws of the State of Montana, I hereby return with amendments House Bill 418, “AN ACT AUTHORIZING INVESTOR-OWNED EQUINE SLAUGHTER OR PROCESSING FACILITIES; PROHIBITING A COURT FROM GRANTING AN INJUNCTION TO STOP OR DELAY THE CONSTRUCTION OF AN EQUINE SLAUGHTER OR PROCESSING FACILITY BASED ON LEGAL CHALLENGES OR APPEALS OF A PERMIT, LICENSE, CERTIFICATE, OR OTHER APPROVAL ISSUED IN CONJUNCTION WITH ENVIRONMENTAL LAWS; SETTING BONDING REQUIREMENTS; AND AMENDING SECTIONS 75-1-201, 75-2-104, 75-5-614, 75-5-621, 75-5-641, 81-9-111, 81-9-112, 81-9-115, 81-9-116, 81-9-201, 81-9-229, AND 81-9-230, MCA.”

I begin by saying that my proposed amendments do not prevent the licensing and operation of a horse slaughter facility in Montana. My amendments retain those aspects of HB 418 that clarify existing law to ensure that a horse slaughter facility, if licensed to operate in Montana, conforms to Montana’s current laws pertaining to all livestock slaughter facilities. My amendments are focused on eliminating what I believe is the unnecessary and potentially harmful special treatment that would be granted to one particular industry under this bill.

Before addressing my specific amendments, I want you to know that, like you, I believe horse owners must be responsible for the health and care of their animals. Like you, I believe it is unacceptable that any horse would be left starving or to die due to neglect. I also believe owners should have access to a legal method to put their horses down as necessary and appropriate — due to age, infirmity, or other legitimate circumstances.

While I understand the value in licensing horse slaughter facilities, it is equally important that any facility approved to operate in Montana comply with this state’s health and environmental laws. Therefore, a person applying to license a horse slaughter facility who wishes to do so in accordance with Montana law has nothing to fear from the amendments I propose.

Specifically, my amendments address the limitations imposed upon a person seeking to bring a legal challenge to a license approving a horse slaughter facility. Those limitations are found in sections 1 and 2 of HB 418, which my proposed amendments would strike. I believe sections 1 and 2 of the bill are unnecessary, cast too wide a net, and suffer from potential constitutional infirmities.

Section 1 of HB 418 would prohibit a court from enjoining the construction of a horse slaughter facility based on a challenge to a permit or license approving the facility under Montana’s environmental laws. An injunction is a remedy in equity available to litigants to preserve the status quo where a remedy in law would be inadequate. The remedy of injunction is not freely granted. It is my opinion that current statutory standards for the issuance of injunctions already provide sufficient safeguards to ensure the remedy of injunction will only be available to a party under limited and justified circumstances. For example, § 27-19-201, MCA, authorizes a court to grant a preliminary injunction only if it appears the applicant will be successful on the merits, a great or irreparable injury would occur if the activity were allowed to continue, when it appears the adverse party is doing or threatening to do an act in violation of the applicant’s rights, or for other similarly justified equitable reasons. In other words, I believe that the legal standards currently in existence sufficiently safeguard the rights of all parties, and, conversely, that the restriction upon a court’s power to enjoin construction of a facility unnecessarily tips this balance.

Section 1 of HB 418 additionally would impose liability for “all financial losses” incurred by the facility as a result of an injunction halting operations of the facility if the person bringing the challenge is ultimately unsuccessful. As a practical matter, and I assume the bill was so designed, this penalty provision would have the effect of chilling any efforts to enjoin the operation of a constructed horse slaughter facility by a person challenging the adequacy of the permit, notwithstanding the real harm that might be caused by the continuing operation of the facility. I am unaware of any equivalent provision in Montana law, and I believe its inclusion in this bill unfairly tips the balance by discouraging a challenger from seeking what would otherwise be a legitimate injunction for the benefit and protection of public health and safety. Again, I believe the current, established legal standards relating to the issuance of injunctions – including the current standards pertaining to an award of costs and damages to persons wrongfully enjoined – are sufficiently stringent and properly balance the competing rights of litigants. I do not believe special rules are necessary or appropriate for this particular industry.

Turning to section 2 of HB 418, I am concerned that this mandatory surety bond requirement, established in the bill at the high rate of 20% of the cost to build or operate the facility, and imposed upon any person who challenges a license granted to operate a horse slaughter facility, would effectively deny citizens access to the courts in Montana, in contravention of Article II, section 16 of the Montana Constitution. I am unaware of any other provision in Montana law requiring the posting of a surety bond as a condition to bringing a challenge to the issuance of a permit under Montana’s environmental laws.

I also question the language found in subsection (4) of section 2, which authorizes an award of attorney fees and costs on grounds that the challenge was “without merit.” I believe the meaning of that expression is unclear and would, itself, lead to litigation. Current law already provides courts with well-settled authority to sanction parties or their attorneys who file pleadings in court for improper purposes. As with my other concerns, I see no reason to impose new, special, and undefined standards in this bill, applicable to this one industry, where current law adequately provides for sanctions in proper circumstances.

In addition to the above amendments, I also propose an amendment to section 12 of the bill. As written, the bill requires “investor-owned” horse slaughter facilities to be licensed pursuant to Montana’s licensing laws. My amendment would require all horse slaughter facilities, whether “investor-owned” or otherwise, to be licensed.

The remainder of my amendments are necessary to coordinate with the amendments to strike sections 1 and 2 of the bill.

I recognize that HB 418 has stirred the emotions of many. As a current and long-time horse owner, myself, I understand those feelings. However, I have endeavored to make my decisions on the bill based on what I believe is the correct approach from both a policy and a legal perspective. I respectfully ask that you support my proposed amendments to HB 418.

Sincerely,
BRIAN SCHWEITZER
GOVERNOR

~~~~~
This industry has a well-established track record, world-wide, of abuse, inhumane treatment and environmental irresponsibility to unspeakable levels. The Governor knows this. Is this the Montana of the future? The jobs and economy of the Montana of the future? Can we not aspire to more than rape and pillage on our environment and its creatures?

If these amendments go forward, Governor Schweitzer just bought the citizens of Montana a whole heaping mess of ugly.

Rep. Ed Butcher, the bill’s sponsor, is already saying he isn’t going to accept the amendments. I’m not betting on it.

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by jhwygirl

They’re everywhere.

911 dispatcher to man parked on train tracks with train coming: “Get out of the car. OK, walk away.”




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