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BEFORE THE MONTANA TRANSPORTATION COMMISSION OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On November 4, 2004, the Transportation Commission published notice of the proposed adoption of new Rules I through VII at page 2677 of the Montana Administrative Register, issue number 21.
2. The commission has adopted the following new rules exactly as proposed:
Rule II (ARM 18.14.202) Rule III (ARM 18.14.203)
3. The commission has adopted the following new rules with the following changes, stricken matter interlined, new material underlined:
Rule I (ARM 18.14.201) Rule IV (ARM 18.14.204) Rule V (ARM 18.14.205) Rule VI (ARM 18.14.206) Rule VII (ARM 18.14.207)
RULE I (18.14.201) DEFINITIONS For the purpose of this subchapter, the following definitions apply: (1) "Advisory council" means the technical oversight council composed of no more than 11 members who must have expertise in one or more of the subjects of tourism, visual assessment, tribal cultures and history, Montana history, resource protection, economic development, transportation, or planning. (2) through (5) remain as proposed. (6) “Tribal government” means a federally recognized government of any Indian tribe, nation, or other organized group, which owns land and has a reservation in Montana. AUTH: 60-2-602, MCA IMP: 60-2-601 and 60-2-602, MCA
RULE IV (18.14.204) SCENIC-HISTORIC BYWAY NOMINATION (1) In order for a roadway to be nominated as a scenic-historic byway, local government or tribal government must prepare an application that follows the rules and procedures provided by the Montana department of transportation by the date specified for submittal each year. (2) remains as proposed. AUTH: 60-2-602, MCA IMP: 60-2-601 and 60-2-602, MCA
RULE V (18.14.205) REQUIREMENTS OF SCENIC-HISTORIC BYWAY DESIGNATION (1) remains as proposed. (2) The commission may not designate a road as a scenic-historic byway without the concurrence of the affected local governments or tribal governments and the agencies responsible for maintenance and operation of the road.
(3) All land abutting the
scenic-historic byway must be either in (4) The application shall contain an explanation of the manner in which the byway meets one or more of the intrinsic qualities. In addition, in the application the local government or tribal government shall set forth, to the extent possible, how the scenic-historic byway designation will: (a) through (6) remain as proposed. (7) The proposed designation must have concurrence and approval of the application from local governments, tribal governments and agencies with jurisdiction of the road and adjacent to the road. (8) through (9)(c) remain as proposed.
(d) preclude the (e) through (12) remain as proposed. AUTH: 60-2-602, MCA IMP: 60-2-601 and 60-2-602, MCA
RULE VI (18.14.206) NOMINATION OF MONTANA STATE BYWAY DESIGNATIONS FOR NATIONAL DESIGNATION (1) Once a road is designated and signed as a Montana scenic-historic byway, local government or tribal government officials can nominate the road for designation as a national scenic byway or all-American road by completing the requirements for nomination provided by the United States department of transportation. (2) remains as proposed. AUTH: 60-2-602, MCA IMP: 60-2-601 and 60-2-602 MCA
RULE VII (18.14.207) REMOVAL OF MONTANA STATE BYWAY DESIGNATION (1) The two circumstances that allow for a scenic-historic byway to be removed from designation are: (a) voluntary removal when local government or tribal government no longer wants its designation; and (b) remains as proposed. (2) Removal of scenic-historic byway designation requires: (a) local governments, tribal governments, and stakeholders to follow steps and procedures provided by the Montana department of transportation; and (b) remains as proposed. AUTH: 60-2-602, MCA IMP: 60-2-601 and 60-2-602 MCA
4. The following comments were received and appear with the commission’s responses.
COMMENT 1: Comments were received from two of Montana’s Reservations and the Montana Tribal Tourism Alliance asking that a Tribal member or a person knowledgeable of tribal cultures be included on the Advisory Council.
RESPONSE: The commission agrees and has amended proposed Rule I to reflect that a person with expertise in tribal cultures and history be placed on the advisory council.
COMMENT 2: Comments were received from two of Montana’s Reservations and the Montana Tribal Tourism Alliance asking that the definition of “local government” be expanded to include tribal governments.
RESPONSE: The commission agrees that tribal governments should be specifically included in the definitions, but does not agree that it is appropriate to define them as “local governments.” To accommodate this request Rule I has been expanded to include an independent definition of tribal government. Further, the term “tribal government” has been added throughout the proposed Rules in order to place such governments on an equal standing with the local governments in regard to the scenic and historic byway program.
COMMENT 3: A comment was received from one of Montana’s Reservations and the Montana Tribal Tourism Alliance asking that proposed Rule II be amended to specify that the Advisory council include a representative from each of the following entities: the Montana Tribal Tourism Alliance; the Tribal Transportation programs; and the Montana-Wyoming Tribal Leaders Council Transportation program.
RESPONSE: While the commission appreciates the suggestion, it was determined that the suggestion not be adopted. This decision was made, because the statute that creates the advisory council, section 60-2-602(3), MCA, expresses the requirement that the members of the council possess expertise in certain areas rather than represent certain constituents. In addition, the rule, as proposed, allows the commission a certain amount of flexibility in naming the members of the advisory council, which seems to be the intent of the statute. Finally, nothing in the proposed Rule will prevent the commission from considering and appointing people from the various groups mentioned so long as they have the requisite expertise.
COMMENT 4: A comment was received from one of Montana’s Reservations and the Montana Tribal Tourism Alliance asking that proposed Rule V (3) be amended to state that all land abutting the scenic-historic byway must be either in public ownership or on an American Indian Reservation. The comment went on to state that the term “tribal ownership” in the Rule as currently proposed created the possibility for errors in interpretation, because it was not clear whether the term meant all the land in the Reservation or that owned by tribal members, or had some other meaning.
RESPONSE: The commission agrees, in part, with the comment. The term “tribal ownership” might give rise to conflicting interpretations. The intention had been, in drafting the rule, that abutting land within the Reservations be treated the same as abutting land outside of the Reservation. For example, stretches of highways located adjacent to privately owned land within the Reservation were not to be included in the program. To remedy the possibility of misinterpretation Rule V (3) was amended to say that the abutting land had to be owned by a tribal government. This change, along with the new definition of tribal government, is designed to clearly state the intention of the commission that a tribal government own the abutting land and that it be located within the boundaries of a Reservation.
COMMENT 5: Our Montana, Inc. submitted a comment supporting the comments received from the Montana Tribal Alliance. Our Montana, Inc. also submitted a comment expressing a concern that the language in proposed Rule V(3) contained a limitation that all land abutting a scenic-historic byway must be in public or tribal ownership.
RESPONSE: The language contained in proposed Rule V(3) was the result of considerable debate and consideration by the commission. There was an attempt to balance the desire to move forward with scenic and historic byway program with the private property rights of those landowners abutting such roads and byways. Rather than attempt to spell out all possible exceptions to creating a scenic or historic byway where private property may be impacted, the commission decided that, as a first step, the program would be limited as set forth in the proposed Rule. It was determined that it was better to move forward now with the establishment of a program as set forth in the proposed rules rather than wait until all the complicated considerations could be fully developed. Once an advisory council has been established and the parties have some experience with the program the commission will be able to determine whether, sometime in the future, the program should be expanded.
COMMENT 6: An individual working with the Northern Continental Divide Scenic Loop organization submitted a comment similar to the one received from Our Montana, Inc. More specifically, this individual was concerned that the language found in proposed Rule V(3) would restrict the areas where a scenic or historic byway could be established. Otherwise, this individual supported the proposed rules and urged that the issue be revisited in six months or a year.
RESPONSE: As stated in the response to comment 5, this issue was fully debated and considered by the commission. The commission understands that the language in proposed Rule V(3) will mean that fewer scenic and historic byways may be established, at least initially. For the reasons set forth above, however, the commission has determined to keep the limitation as proposed. As mentioned by this individual, though, the commission may well be willing to revisit this issue in the future once the parties have gained some experience with the program.
COMMENT 7: There was a comment of support for the proposed rules by the Chair of the Montana Tourism Advisory Council. Within this comment was the following statement, “The byway advisory council and the Tourism Advisory Council feel the new rules under consideration are a good starting point for a statewide byways program.”
RESPONSE: The commission appreciates this comment and all of the comments in support of the rules urging that the commission and the department begin this program. As stated above, the rules may well be a starting point, which could establish a program that can be expanded in the next few years.
MONTANA TRANSPORTATION COMMISSION
By: __________________________ Shiell Anderson, Chairperson
By: __________________________ Lyle Manley, Rule Reviewer
Certified to the Secretary of State January 03, 2005.
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Montana
Scenic-Historic Byway Rulemaking 
