B-SB data center ballot initiative TRO remains; county to continue filing with state

Butte-Silver Bow District Court Judge Frank Joseph said he would give both the county and 406 People First — represented by attorney John Meyer — until 5 p.m. Monday, Aug. 24, to establish whether “equitable estoppel” applies to the case. Equitable estoppel is a defense that prevents a party from using a right against another party when the right arises out of misleading actions from the person claiming the right, according to Cornell Law. 

After the hearing, County Attorney Matt Enrooth said that Clerk and Recorder Cindy Sherman will continue to file the group’s petition and signatures with the secretary of state because the temporary restraining order remains in place, and the deadline to file those materials is Wednesday.

Under Montana law, the secretary of state has to certify the ballot for election administrators 75 days before the election.

Meyer argued Wednesday the county elections administrator advised Denise Kelly and other 406 People First volunteers their deadline to submit the necessary 3,652 signatures was Aug. 14, even though the statutory deadline was July 13.

Nevertheless, Joseph said he didn’t believe equitable estoppel applies in this case.

“There was an error made, no doubt about that,” the judge said. “But I can’t change the statute.”

The judge reiterated it’s a matter of law, “unless you can show me how equitable estoppel applies.” He proceeded to reference the recent ruling by Judge Ed Zink in Yellowstone County, in which the judge ruled that the deadline for a similar petition drive there had already passed. 

In turn, when Joseph asked how many signatures the Butte-Silver Bow volunteers had collected or submitted by July 13, Meyer replied, “We don’t know that.”

When Meyer asserted the judge must look at the full picture, the judge responded, “I’ve considered all. I’m a citizen of Butte myself.”

The initiative, if it were to make the ballot and be passed by voters in November, aims to effectively create a resolution that would require two-thirds of registered Butte-Silver Bow voters approve any new data center in the county. 

Meyer continued to reiterate the volunteers’ submission of signatures was based on the Aug. 14 deadline Sherman gave them and that the county never challenged the petition within the legal window to do so.

In the lawsuit 406 People First filed last week, the group said that 4,518 total signatures were submitted; of those, the clerk accepted 3,850 as valid out of 3,652 that were necessary for the ballot measure to be certified, the suit said.

Kelly did not immediately respond when asked for a follow-up comment after Wednesday’s hearing.