CHAPTER 4

Social Well-Being in the Yellowstone River Valley

Introduction

Our third component of sustainability, social sustainability, occurs when communities engage in “life-enhancing” practices (McKenzie 2004). Moreover, when a society provides opportunities for its members to improve their well-being, social sustainability requires that society must also ensure that the opportunities are managed fairly. As you can imagine, social sustainability questions are far-reaching, including topics such as upward mobility and access to quality education. Recent analyses evaluate factors such as personal security, individual freedom, the rule of law, and trust in government (Legatum Institute 2019). These studies disclose patterns of geographical inequalities—global, national, and within Montana—that will apply to our case study of the Yellowstone River Valley. To achieve social sustainability, we must recognize when some people are disenfranchised from opportunities because of social inequities, and we must find ways to correct those situations.

Correcting inequities must include addressing our practices, whether they be habits or codified rules. Even when we do not intend to do so, our practices can generate, propagate, and institutionalize unfair outcomes, such as racism, sexism, and classism. Social sustainability asks us to examine how well our traditions, customs, rules, and laws result in fairness and justice. We should willingly evaluate our processes and procedures, and when they are shown to be unfair, we must either institute new rules and practices or reform old ones. Sometimes, old ways of doing things hamper fairness in contemporary circumstances. Sometimes, a lack of rules can be problematic. Future generations will not simply inherit economic and environmental conditions, they will also inherit a set of customs and laws.

We begin by thinking about specific terms relating to social sustainability: fairness, equality, equity, accountability, and environmental justice. Then, we will apply those understandings to concerns in the Yellowstone River Valley. We will make a distinction between private and public resources because in the United States that distinction implicates very different rules of fairness. Also, by examining how mishaps in the oil and gas field are resolved, we begin to ask if we might design our system of practices, rules, and laws to elicit better results. Chapter 4 ends by examining whether social stability is essential to social sustainability. In these examples, it becomes clear that the long-term social well-being of the people of the Yellowstone River Valley is linked to how we manage our industries and natural resources.

Important Terms and Distinctions

Social sustainability asks us to actively practice fairness (Eizenberg and Jabareen 2017). Sometimes, fairness in a situation causes us to expect equality, whereby all parties have the same rights and opportunities. Consider the situation of two siblings, each receiving a weekly monetary allowance for performing household chores. In a system of perfect equality, the tasks assigned to each sibling are equal and the paid allowances are equal. However, circumstances are seldom so perfect, and families often turn to equitable formulas to achieve fairness. Equity is achieved when an agreed-upon principle defines fairness (Deutsch 1975). For instance, an equitable formula concerning the siblings might increase one sibling’s weekly earnings to recognize extra efforts. Likewise, when the parents decide to arrange their estate, they might decide to treat each child equally, or equitably. In a situation where one child has serious health concerns and one does not, the parents might decide that the child with continuing medical expenses should receive a larger share of the estate. They equitably provide for the futures of both children by giving the unhealthy child a larger share. Fairness, then, does not always take the form of equality. Rather, the principle of equity is considered fair when there is a rationale for determining unequal outcomes.

Our customs and laws can sometimes help families striving to operate fairly. For example, some parents will adhere to a long-standing principle of rural life, primogeniture, when arranging their estate: the family’s landholdings will go to the oldest male child (Bertocchi 2006). This practice is viewed as a necessity when farms are too small to be economically viable if the landholdings are divided, and, therefore, the estate must seemingly be given to only one child. Moreover, because estate laws allow for unequal divisions, the tradition has been codified.

In terms of fairness, accountability is also a factor in social well-being. For instance, when two automobile drivers are involved in an accident, it seems fair that the person who caused the accident should pay for the repairs. Even when the mishap is truly an accident, we expect responsible parties to be held accountable. By the 1990s, fairness and accountability were being widely discussed in terms of environmental justice (Adamson et al. 2002). It had become obvious that many of our industrial practices resulted in situations where environmental costs were incurred by persons far removed from the benefits being reaped. For example, most people who wear blue jeans are never confronted with the environmental impacts of the dyes and acids used in the manufacturing processes. Economists use the term negative externalities to refer to costs incurred by third parties who are not engaged in a transaction but who are forced to absorb negative consequences (Cornes and Sandler 1986).

When our practices allow the consequential environmental degradations from an economic transaction to occur elsewhere, or when the impacts of the degradations are not included in the costs to the consumers, we engage an environmental injustice. By subscribing to a philosophy of environmental justice, we are asked to not ignore situations where others absorb the negative environmental consequences of our practices and consumptive desires.

The EPA explains environmental justice as, “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies” (U.S. Environmental Protection Agency 2020). In other words, when it comes to our environment, justice means our rules must be designed and implemented to achieve fairness. We must be willing to change rules that disproportionately harm some people while benefiting others who do not incur all of the consequential costs.

As social beings, we practice customs, and we invent rules and laws to help us understand and achieve fairness. These practices and inventions help with mundane issues (calculating weekly allowances), with personal legacies (estates), with assigning responsibilities (settlements), and with guarding against unfair consequences (justice). Each of the following examples should help bring into focus concerns about fairness and social well-being that deserve our attention.

Examples of Fairness in Public Resources

Issues of fairness can involve natural resources, some of which are held publicly and some privately. The United States, with its legal traditions traceable to the laws of Medieval England, derives distinctions regarding public and private resources from the Magna Carta of Libertatum of 1215—the Great Charter of Liberties. Among other legal concerns, this document laid a foundation for modern laws concerning public access to fish and wildlife (Murphy 1968). Yet, these public resources often intersect with private rights. Wildlife often moves across private lands, and, in the case of fish, their streams may run through private properties.

As public resources, fish and wildlife resources are managed by state and federal governmental agencies, and these agencies must mediate the public–private interfaces. The states enact laws to define how hunting and fishing will be practiced within their borders. Typically, these laws include regulations concerning licenses, harvest limits, and seasons, to name a few. The federal government reviews the states’ laws to determine if the interests of the public of the larger United States are being addressed. Because wildlife and fish do not recognize state boundaries, larger public interests are assured across state boundaries via federal oversight. For instance, wolves were reintroduced into YNP in 1995 and are now found in Montana, Idaho, Wyoming, Colorado, Oregon, and Washington. Each of these states was required to develop wolf management plans, especially in terms of allowable killing and hunting. The federal government intervened when Wyoming’s management plan was deemed inadequate in terms of broader public interests (Jones 2008).

Sometimes, society demands that our laws evolve to offer greater specificity, and many public and private interests have been sorted out statutorily. That is, legislatures have enacted laws that define the boundaries and rights associated with specific public–private interfaces. For instance, in 1985, Montana enacted the Stream Access Law. It clarified that “all surface waters that are capable of recreational use may be so used by the public without regard to the ownership of the land underlying the waters” (Montana Code Annotated § 23-2-302 1985). The public can use the rivers and streams, even if they run across private properties (Figure 4.1). Among many additional provisions and subsections of the law, two are especially important: (1) without permission, the public is not allowed to cross private property to access a waterway, and (2) in every location along the streambank, public access is limited to the “high water mark.” A recreational user who fails to respect these rules is engaged in trespass.

Figure 4.1 Fishing the Yellowstone River in Eastern Montana

Yet, there are many situations where laws are not available or where they do not explicitly define rights. In these cases, the courts can be asked to sort out the public and private interests. Some decisions will be based on common law—interpretations of customs or of judicial precedent. In the case of Montana’s streams, were a landowner to claim that birdwatching is not true recreation and, thus, commence an argument about trespass with a birdwatcher standing on a riverbank, the courts would assuredly rule in favor of the birder. While birdwatching is not explicitly identified as a recreational use in Montana law, custom demands it be recognized as a long-standing tradition of outdoors enthusiasts.

Importantly, in Montana, hunting and fishing are considered mainstays of recreation. In the parlance of social sustainability, they are considered “life enhancing” activities. However, access issues can make it difficult for the public to exercise their rights to these recreational pastimes. Traditionally, landowners readily granted access to rivers and streams and hunting areas on their properties, but today, some landowners legally block public access:

As a larger fairness issue, it does the public little good to know it has recreational rights if there are too few points of access for exercising those rights.

Some advocacy groups have formed in Montana to address issues involving access to public resources. The Public Land/Water Access Association (PLWA) was formed “to maintain, restore, and perpetuate public access to the boundaries of all Montana public land and waters” (Public Land/Water n.d.). Similarly, Our Montana promotes stewardship and the “enjoyment of Montana’s natural, historic, and recreational resources” (Our Montana n.d.). More recently, the Lower Yellowstone River Coalition formed to:

Each of these groups is engaged, to varying degrees, in protecting the public’s interests. In 2006, an active member of Our Montana explained:

By 2018, he was able to report some success:

Some groups work to further enhance access to public resources by obtaining lands and making them available to the public. One such group, operating out of Billings, is the Yellowstone River Parks Association (YRPA). This group has been instrumental in raising private funds to purchase lands along the riverbank for the express purpose of dedicating those lands as public spaces, and it recently helped establish a new public boat launch at Billings. The members envision a series of public parks that will follow the Yellowstone River as a “string of pearls”—parks of varying sizes and purposes, connected by public trails for dozens, or even hundreds, of miles:

There is no doubt that the efforts of these nongovernmental organizations make a difference in helping the public avail itself of public resources, but it is notable that fairness is somewhat slippery when considering the public–private (private–public?) interfaces. As public pressures on resources increase, some groups form to safeguard private and specific stakeholder groups’ interests, and many groups clearly have local economies in view (see Lower Yellowstone River Coalition 2021). On a different front, the Yellowstone River Conservation District Council formed in 1999 to ensure local participation while the CEA was underway. This group is also focused on voluntary acceptance of shifting managerial priorities. It was their philosophy, from the beginning, that governmental oversight should not expand. The group continues, today, and has engaged two follow-up working groups: one to address invasive woody plants in the river corridor and one to address issues involving irrigation outtakes (Yellowstone River Conservation Districts Council n.d.a). In the upper valley, a coalition of residents, in partnership with governmental agencies, local businesses, and local stakeholder groups, has formed as the Upper Yellowstone Watershed Group (2016). Its overarching goal is “to enhance watershed health and the regional economy.” Such groups can take active roles in gathering and disseminating good data concerning river resources and uses.

Each of the groups mentioned in this section has a role to play in defining fair uses of the river’s shared resources. Governmental oversight and management of the resources can be aided or hindered by any one of these groups. Collaborations with local groups and local leaders can be helpful (Gilbertz et al. 2011; Horton et al. 2019), but such involvements do not always result in better-informed or better-formulated policies, nor to fair and equitable access to public resources (Gilbertz et al. 2019; Hall et al. 2015).

Examples of Oil and Gas Mishaps

Despite efforts to collaborate smoothly within public–private interfaces, disputes still arise, and some disputes ultimately end up in the courts. Often the issue under litigation is accountability for damages, and so it is important to note the distinction between civil and criminal concerns. When the courts are asked to settle disputes between private parties, it is a civil case; but, when actions violate laws or cause damage to public interests, they are handled by city, county, state, or federal governments as criminal cases. Thus, if a newly constructed highway bridge fails and results in drivers being injured, the contractor who built the bridge would assuredly face multiple lawsuits, some criminal and some civil. In terms of environmental violations, when private parties face charges brought forth by governmental agencies, they often negotiate settlements rather than publicly face criminal charges. Here, we turn our attention to two examples of mishaps in the Yellowstone River Valley, both of which will help us understand public and private concerns.

Our first example concerns an oil spill in the Yellowstone River in 2011, known locally as the Exxon spill. Eventually, it was determined that the spill occurred because ice had scoured the river bottom to a depth that exposed a “buried” pipeline that crossed under the river. Later—when the river was running fast and high—a large tree that had fallen into the river snagged the pipeline, causing a rupture. The incident occurred near the town of Laurel, just west of Billings (Reach A18). It was estimated that 63,000 gallons of crude oil spilled into the river (Montana Department of Justice 2016). The crude oil affected water quality and the health and habitats of wildlife and fish; thus, the U.S. Department of the Interior and the State of Montana were involved in determining the impacts to public resources.

Several individual property owners were also affected by the spill. For the most part, the landowners were befuddled by what ensued in the wake of the event. They expected help from governmental entities but were left largely on their own to muddle through long and confusing bureaucratic and legal processes. Less than a year after the spill, one impacted landowner described what happened, in these words:

While the responses of this landowner—to the spill, to expectations about government, and to the inevitability of accidents—were highly personalized, those reactions are not uncommon among residents of the valley around the likelihood and impacts of pipeline ruptures (Emerson, Hall, and Gilbertz 2021). Six years later, the same landowner explained his dissatisfaction with the resolution for him as an impacted private party:

It took until 2016 for the State of Montana to arrive at a settlement with Exxon (Montana Department of Justice 2016). As defined in the final document, the damages to public interests included debris piles and negative impacts to terrestrial/riparian habitat, riverine aquatic habitat, American White Pelicans, and recreational uses (State and Federal Trustees 2017). The settlement of $12 million would be variously divided and used to address concerns in each category over the next few years. However, some Montanans questioned the amount of the overall settlement. A watchdog organization reported that in 2012, Exxon held 16 billion dollars in cash reserves (Leber 2012).

In our second example of an oil and gas mishap, we will see that even when some elements of the oil and gas industry are more carefully managed, problems can still be difficult to resolve. As context for this second case, it is important to note that the Montana Board of Oil and Gas Conservation (MBOGC) requires companies to post bonds that create a fund to be used to address problems. The MBOGC understands that the industry is prone to boom-and-bust cycles, and at various junctures some companies will go broke. The bond money can be used by the MBOGC to remediate industrial problems that are left behind when companies go bankrupt or when they move operations out of a location.

Consider the case of gas wells. While they are profitable, production companies regularly attend their maintenance. Yet, when the wells fail to produce enough gas, or when the market drops, some wells are no longer profitable. In these cases, the production companies are supposed to either “shut in” the wells, meaning they use temporary plugs to stop leakage while waiting to see if later conditions suggest the well could (again) be profitable, or they close the wells by permanently plugging them with cement. Unfortunately, if the production company is no longer solvent, wellheads are abandoned—the wellhead is neither shut in, nor is it permanently plugged. One function of the MBOGC is to use money posted as bonds to deal with abandoned leaking wells.

In this example, a gas wellhead located on private land began leaking 10 years after it had been “permanently” plugged. The landowner and the MBOGC were aware that the company had plugged the well and that, 10 years later, the company was still in business and reportedly quite profitable. Noting that the plug had failed, the landowner assumed that the company needed to come back to replug the wellhead. He made numerous calls and wrote several letters to the company’s out-of-state headquarters asking them to make the repairs. However, the company refused to take responsibility. Ten years earlier—when the company plugged the well—it had followed the state’s requirements, and its work had been inspected by the MBOGC. An attorney told the landowner that because of the inspection, the company was released from further liability.

Once the landowner realized the company would be of no help, he asked the MBOGC to fix the leaking well. The landowner’s frustrations grew when at least one official from the MBOGC claimed that bond money was designated for problems with abandoned wells. This was not an abandoned well. The landowner remembers being told he should fix the leaking well himself. The landowner, in his late seventies, and having been arguing with company and state officials for over two years, wondered if the leaking well would ever be plugged. On a cold winter day when he and one author visited the wellhead, he noted, “No one is helping me” (Landowner in the Bakken 2013; Figure 4.2).

Figure 4.2 Checking a leaking wellhead in winter

Further inquiries confirmed most of the details of the landowner’s story. One difference was that an official at MBOGC claimed the board was trying to get the wellhead fixed, but that the bond fund was too depleted to address the problem immediately. Six months later, it still was not done, and the landowner was still asking the MBOGC for help. One year later, three years after the problem was found, the wellhead was successfully replugged by the MBOGC. Environmentally, the problem was finally resolved.

These examples make us wonder, “Is this the best we can do?” We have devised ways to address problems that involve public resources, but many find the resolutions inadequate. It also seems our rules and laws did little to relieve private parties of inequitable burdens of environmental degradation. We must think carefully about leaving landowners feeling helpless. Well-being should not be built on the misfortunes of even a few individuals. When we allow this, we leave those individuals alienated from their communities (Gilbertz, Anderson, and Adkins 2021).

Social Sustainability and Social Stability

The dynamics of social stability are another important aspect to examine when thinking about social sustainability. Changes to local communities can happen gradually or seemingly overnight, and the communities of the Yellowstone River Valley are sites of both stability and upheaval.

Beyond preservation of local histories, social sustainability also intersects with cultural values and norms. In eastern Montana, where rural sensibilities are still viable, people speak of small-town life as sets of satisfying engagements:

Yet, these bucolic communities are at risk. Like the cottonwoods, the traditional family farm is also “aging out” (Zentz 2001). Recent statistics from Richland County, Montana, show that among agricultural producers, the average age is over 60 (National Agricultural Statistics Service 2017, 555). Many farms are operated by elders, while younger members of these families leave for opportunities elsewhere. Not only are the “good jobs” of the oil and gas industry not good enough, but the boom-andbust cycles also disrupt the social fabric of everyday life:

It is a complicated task to determine if the boom and the eventual public benefits, such as new fire halls and sewage systems, are fair trades for the social upheavals and subsequent busts experienced by the farm communities of the lower valley. It is even expected that long-term economic, environmental, and social sustainability depend on change, and we might be tempted to argue that it is only fair that the next generation will leave to find good jobs elsewhere. However, it is worth noting the significant population declines in eastern Montana and the potential demise of the local communities (Gloege 2007). For instance, some high schools have fewer than two dozen students, and it is impossible for those school districts to offer a robust slate of courses. One consequence is that students from these districts can be quite disadvantaged if they later choose to enroll in college courses. Communities can choose to consolidate schools across county governments. However, the cost-effectiveness of this type of merger for the government would also result in the loss of local jobs, which for many families provide benefits as well as wages.

In terms of social stability, to argue nostalgically about “the way it used to be” is probably shortsighted, and it may seem simply unfortunate for local farmers, on their way to morning coffee, to encounter drunken rig workers. Industries and communities evolve. Sustainable communities must evolve. However, the farmer’s lament about his children moving away discloses structural dynamics that put his community at risk. Some of these counties need change. They need industries and communities that offer young people good opportunities.

Because the fabric of every community is interwoven with economic, environmental, and social concerns, it becomes clear that the overall question driving sustainability advocates may be too broad to serve as a call for local action. While we must be willing to ask, “Can we meet our current needs without compromising the ability of future generations to meet their needs,” we must also recognize the complexities faced by particular communities. Assuredly, we do not want our habits, customs, rules, or laws to forestall change. Rather, as we attempt to attend to the entire suite of concerns that define our long-term well-being, we need to imagine stability through change.

Discussion Questions

Easy Access Resources

Bonding Requirements, as pertaining to Dry and Abandoned Gas Wells in Montana: www.mtrules.org/gateway/RuleNo.asp?RN=36%2E22%2E1308

Environmental Justice: www.epa.gov/environmentaljustice

Montana Board of Oil and Gas Conservation, Online Data: www.bogc.dnrc.mt.gov/WebApps/DataMiner/

Montana’s Stream Access Law: https://leg.mt.gov/bills/2017/mca/title_0230/chapter_0020/part_0030/sections_index.html

Our Montana: https://ourmontana.org/about-us/our-mission-and-history/

Public Land/Water Access Association: https://plwa.org/

River Access: “A Big Day for Public Access on the Yellowstone River” (Video): www.youtube.com/watch?v=zRp1YTJ29-8

Settlement of Public Damages, Yellowstone River 2011 Oil Spill: https://media.dojmt.gov/wp-content/uploads/nrdp-yellowstone-restoration.pdf

Yellowstone River 2011 Oil Spill: https://dojmt.gov/lands/yellowstone-river-oil-spilljuly-2011/ www.theguardian.com/environment/2011/jul/03/yellowstone-riversuffers-oil-spill

Yellowstone River Parks Association: www.yrpa.org/