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New West Daily Roundup for Jan. 10, 2017

Today in New West news: Helena drops gender restriction rule, Utah Supreme Court to hear case involving Public Waters Access Act, and BLM seeks comment on Upper Green River Basin ozone nonattainment area.

Late December 2016, we reported that three Helena City Commissioners had proposed to strike a provision from the city’s nondiscrimination ordinance that ruled people must use “the facilities designated for their anatomical sex” in places where said people “ordinarily appear in the nude.” The commissioners contended that the exception was itself discriminatory—specifically toward transgender and intersex individuals—undercutting the efficacy of the nondiscrimination ordinance. The “anatomical sex” rule was added when the ordinance was passed (unanimously) in 2012, after opponents to the nondiscrimination ordinance argued the rule could be exploited by “voyeurs or pedophiles.”

Now, according to the Helena Independent Record, the Helena City Commission voted 3-2 in favor of removing the “anatomical sex” provision from the city’s nondiscrimination ordinance:

Their decision, on a 3-2 vote with Mayor Jim Smith and Commissioner Dan Ellison dissenting, came after perhaps 40 people testified before the commission. Most favored the proposed change, which struck two sentences from the city’s nondiscrimination ordinance.

The change will take effect in 30 days.

The language to be removed states “However, in any place of public accommodation where users ordinarily appear in the nude, users may be required to use the facilities designated for their anatomical sex, regardless of their gender identity. Such requirement does not constitute unlawful discrimination for purposes of this section 1-8-4.”

Passage of the ordinance four years ago exposed a deep rift in the community.

The change was intended to guarantee equal protection to everyone, Commissioner Robert Farris-Olsen, who proposed amending the ordinance, said in early December.

Before voting, he said the fears expressed during public comments did not overshadow what he heard about the discrimination that people face.

Among the arguments in favor of removing the exemption was that it would make Helena a more welcoming place and respect the dignity and humanity of all city residents.

The gender identity of someone who commits a crime does not affect the criminal act, a woman told the commission.

“Crime is crime,” a speaker said. “Rape is hideous and horrible. There is not a nexus with removal of this language.”

The Record added that former Commissioner Dick Thweatt, who was instrumental in inserting the original “anatomical sex” provision, told the paper in an email that the provision was a mistake and supported its removal.

Down in Utah, according to the Salt Lake Tribune, the state’s Supreme Court is gearing up to hear testimony regarding the Public Waters Access Act. Passed as HB141 in 2010 and struck down by a lower court, the rule declared nearly half the state’s fishable streams off limits to the public—in spite of the so-called “public trust” doctrine, a common-law principle held as nearly sacrosanct by anglers and conservationists. Although there is no indication regarding how the Court would rule, public-access advocates say they have the law on their side. From the Tribune:

Public-access advocates now hold the upper hand with two favorable court rulings, one overturning HB141 and another expanding the historic circumstances under which a streambed is deemed state property to include statehood-era log drives.

“These are difficult questions. You have to balance private property interests against public interest in the waters,” Associate Chief Justice Thomas Lee told the lawyers assembled Monday in the Supreme Court chambers as he leveled some of the bench’s toughest questions.

Justices heard back-to-back arguments on appeals brought by affected property owners in the two rulings. These cases arose from a 2008 decision in which the high court declared that a public easement extended to streambeds crossing private ground.

Lawmakers took that decision as an invitation to establish rules of access and approved HB141, which deepened the controversy by placing severe restrictions on access.

The Utah Stream Access Coalition, a group of pro-access anglers equipped with a phalanx of skilled pro bono attorneys, mounted a full-scale legal assault on two fronts. The group filed companion lawsuits focusing on fishable stretches of the Provo and the Weber rivers, where upper reaches wind through private land.

Coalition lawyers argued that the public holds a historic right of access to these waters, which are owned by the public even if the streambeds are private.

“The easement is rooted in the Utah Constitution,” argued Craig Coburn, a lawyer for the coalition. “The waters of this state are gifts of providence, and as gifts of providence, the public has a right to use that until they are further appropriated.”

But the Utah law is not tossing out the easement, just regulating it for the greater good, according to Utah Deputy Solicitor General Stanford Purser.

“The purposes of the act was to balance the public’s interests, which are sometimes competing. This state has always strived to be a good steward of water,” Purser said. Constraining access helps avoid “the tragedy of the commons” by enabling property owners greater latitude for managing streams.

“That not only has benefits for their property,” Purser argued, “but it flows up and down the river.”


However the court rules, the decision will set a landmark.

“It’s all about your rights and future generations’ rights to use a resource that is natural,” said Chris Barkey, an angler active with the access coalition. “Property rights have to be balanced, and it’s about time the courts tell them what their boundaries are. These are wealthy landowners. They want to make money off the public’s back. The public pays for the flood mitigation, the dams, the stocking [of fish], the habitat improvements.”

Finally, over in Wyoming, according to the Wyoming Business Report, the Bureau of Land Management is seeking comment on a “Draft Presumed to Conform list of actions” for an ozone nonattainment area located in the Upper Green River Basin:

The BLM is seeking public input through Feb. 13 on the draft list to assist the agency in preparing a well-informed final list, which will streamline environmental review efforts and eliminate unnecessary costs associated with evaluating common, recurring actions with minimal emissions.

In 2012, Wyoming’s Upper Green River Basin (UGRB) was designated as an ozone nonattainment area with a marginal classification. The designation requires the BLM to comply with federal and state General Conformity regulations for federal actions solely within the nonattainment area. Currently, all actions requiring BLM authorization or approval within the nonattainment area go through additional evaluations to ensure emission levels are not significant or require further evaluation.

Through the development of the Presumed to Conform List, the BLM seeks to eliminate the need for further evaluation of the actions on the list and apply more resources and time analyzing proposed actions that produce significant emissions levels or may adversely impact air quality in the UGRB.

For more information and documentation, check out the BLM Wyoming site or call BLM Air Resource Specialist Charis Tuers at 307-775-6099. If interested in submitting comments, you can submit them to BLM_WY_PTCList_comments@blm.gov.

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