ATTORNEY GENERAL MIKE MCGRATH
STATE OF MONTANA

FOR RELEASE: July 20, 2004

CONTACT: Judy Beck or Lynn Solomon, 444-0582

McGrath: Decision To Close Park County Incinerator Cannot Be Put On Ballot

HELENA – In an opinion (PDF) issued Tuesday, Attorney General Mike McGrath ruled that the decision to close the incinerator in Park County is an administrative decision that cannot lawfully be placed on the ballot by referendum.

Montana law extends a local government's power of initiative and referendum only to actions that are within the legislative power of the local government. Park County Attorney Tara DePuy had asked whether closing the incinerator fell under the Park County Commission's administrative or legislative authority.

To resolve the issue, the opinion closely examined the extent of a county's legislative jurisdiction and power.

Unlike cities and chartered or consolidated city-county governments, a general government county in Montana has no general legislative powers. Its powers are limited to those the legislature expressly or implicitly grants, such as the authority to enact certain traffic ordinances.

The opinion concluded that, since the Park County Refuse District is an administrative district within a general government county that has not been granted any legislative powers by law or charter, its actions are administrative. Since the county's decision to close the incinerator is an administrative decision, not based on legislative powers, it is not subject to initiative.

The opinion applies only to counties organized under a general government system, not to counties that have adopted a self-government charter. An attorney general's opinion carries the weight of law unless a Court overturns it or the legislature modifies the laws involved.

#