Who has the Legal Authority to Establish Speed Limits?

In his e-mail, Mr. Domsife stated, “... in Title 23 of the US code there is no authority for a political body to set “arbitrary speed limits.” My office has spoken with Mike Duman, assistant division administrator for the Montana Division of the Federal Highway Administration, and he stated that FHWA is unaware of any limitations that would prevent the legislature from setting statutory speed limits, as they did in 1999.

Such a definitive statement, the question is where in the law is it permitted? Its not! The National Manual On Uniform Traffic Control Devices (MUTCD) is a federal law under Title 23. A speed limit sign is a federally regulated traffic control device that the state is authorized to use providing statutory requirements are met. Montana has not met them!

Montana cannot grant itself dominion over federal law and any laws adopted must be in conformance with federal statutory requirements. In virtually every MCA statute the state purports to claim superiority to governing federal law by decree, or authorizes every political entity in Montana in some manner to ignore the law except for a few conditions. Therefore, the entire speed limit authority MCA § 61-8-303, § 61-8-309, § 61-8-310 and § 61-8-312 are all illegal on their face. Further, it authorizes the use of speed limits in other ways not acceptable under governing law. Therefore these applications are also unlawful.

The fact that these clear violations made their way into state statutes in the first place speaks volumes of how little oversight or consideration the governing law received.

As written, anyone could successfully challenge any speed citation in the state, and prevail under Montana Constitution “Section 17. Due process of law” and “MCA § 1-3-208. Own wrong -- no advantage.” If not in state court, they would surely prevail in federal court.

How did this lapse in oversight happen? The FHWA is the primary contributor to this statutory oversight fiasco and the resulting wide spread non-compliance with sound engineering practices. It can be traced directly to the FHWA HOTO office and the US DOT’s political managers.

There is a law called the Highway Safety Act of 1966, Title 23 and its MUTCD. It was specifically passed to remove unfounded and unsafe political conjecture from highway safety decisions. Its other central charter mandate is that all traffic control in the nation be equally applied under one standard. With each device having a like design, application and placement regardless of state lines or jurisdiction… a system where the motorist is given a single uniform national appearance, meaning and expectation.

Contrary to Congress’s stated directives contained in this Act, to accommodate political wishes, decades ago the FHWA adopted a fundamental policy of non-confrontation… get along, get the highways built and accommodate local practice.

In short, the leadership of the agency charged with assuring that sound engineering practices are uniformly applied nationally never really embraced this expanded responsibility. You can’t get along and accommodate local practice by allowing 50,000 entities to do their own thing and attain a uniform national standard application too. An unsafe practice that continues today and is evident everywhere! A practice Congress in this law tried to eliminate.

These are engineers and bureaucrat managers. Their job is to build the nations infrastructure, not one of policing state and local government compliance with federal laws, even if they are engineering based standards.

FHWA bureaucratic supervisors, in further acts of its easier to cave to political pressure than do their job of protecting the integrity of process and sound engineering practices, in 2000 they authorized MUTCD code changes without the factual verifications required by law; signalized intersections timing without studies (to support truncated yellow timing, benefiting red light camera operations, which in practice actually increases and sustains high incidents of unsafe entries on red) and stop sign warrants (to allow unfounded and unsafe use). In another current example, they have also turned a blind eye to political correct, yet non-approved devices being posted by the thousands.

This is clearly not authorized because they detract from the effectiveness of signs posted for cause, and because all sign use should be minimized to assure when posted they convey their importance and are not ignored, and because they are a hazard in and of themselves to cyclists, motorcycles and others because collisions with these devices do injure and kill people.

Aside from active current projects, there is no procedure in place that audits practices or verifies compliance either. Using words rather than agency actions, in an effort to further encourage MUTCD compliance at the local level, in 1988 it became absolute regardless of type or classification of entity exercising police powers. Prior to 1988 it was active federally funded projects only, all other device statutory compliance was recommended. After 1988 it was mandatory regardless, and all states and local entities under law had 2 years to bring all devices into compliance. It is in writing and clearly stated in the law.

That being said, this absolute was again effectively meaningless because no effort was made to communicate this specific change’s meaning and today, 13 years later, it remains a best kept secret. Its only enforcement mechanism is to withhold current construction funds from a state DOT, in an action not related to the non-complying event? Even if they withheld state money, in most states there is no mechanism for a DOT to effect compliance of other government entities.

To this in 2001 add, some states still haven’t officially recognized Title 23 mandates in state law 35 years after its passage… while all states participate in its benefits. Ask yourself how many local or state governing entities changed statutory procedures, communicated this to all staff and changed their laws wording to assure compliance with this significant 1988 change? Zero would be a close answer! Its statutory requirements are more like bookmarks at best, wording in state statutes referring by inference the existence of some standard, once in a blue moon mentioned by name. Now you know why the legislative process had little or no legal oversight!

Consequently, in every state, perfunctory administrators routinely certify compliance with the Title 23 to receive its benefits. The Montana legislature went further, acknowledging that such a superior law does exist, and passed a law to assure the benefits remain uninterrupted in “MCA § 60-5-526. Restrictions. The department may take no action under this part that may result in the loss to the state of any federal highway construction funds”; while its actual mandates remain virtually unknown to the legislators and every other political entity within the state exercising regulatory and policing powers. Resulting in widespread non–compliance with the law, confusion and chaos when the issue is raised!

There is a saying, “ignorance of the law is no excuse”. Does this apply to states and federal agencies too? This law in the US Code is plain meaning and in unambiguous language, the states certify compliance, and it has a sound factual foundation… and we assert it does apply!

The governing federal law, Title 23 and its MUTCD is an ironic twist on federal government preemption. The drafters 35 years ago knew that safety is best served when the actual road being regulated is reviewed taking into account all factors… and it remains today an undisputable fact and best practice. Traffic engineering studies are the cornerstone of basis–in–fact finding as to what traffic control devices or safety mitigation may be warranted. Because, without a study, all traffic control is based on unfounded conjecture and safety is compromised.

This Federal law says according to LOCAL conditions. After engineers have personally determined how the people who use that particular section of highway are driving and they have reviewed the highway facilities, traffic volumes, existing traffic control devices and accident data or any notice of defect. Then they are directed to apply nationally accepted and verified sound engineering practices to remedy any problems and best manage the flow for the conditions found. Not conjecture from Washington, State Capitals or Local Politicians.

Basic tenets of Engineering Profession’s view of traffic control laws. Laws protect the public by regulating unreasonable or unsafe actions. Actions of a reasonable person should be legal. Most people drive in a safe and reasonable manner. Laws cannot be effectively enforced without the public consent and voluntary compliance. Further, the United States Constitution requires that laws be fact–based. A non–fact–based law violates due process. Why? Due process includes the notion that, on science and engineering issues and such type issues, only facts will be presented in court, not myth, not speculation.

Can it be used as defense for someone who has received a citation? You bet, but that doesn’t change the larger problem this negligent standards enforcement practice has created. When the National limit was repealed in 1995 and the setting of speed limits were returned to the states, all assumed it was business as usual and they could do as they wish at the state level and nobody asked, researched or concerned themselves with it either.

Nonetheless, the underlying extant law had matured with a very definite set of national standards and statutory requirements that must be complied with. If the statutory procedures were not followed, a citizen can successfully argue that the limits are illegally posted and they cannot be the basis for such a prosecution.

This report will show that Montana is prosecuting its citizens to the full extent of its police powers for violating illegally established speed limits; while at the same time this practice directly contributes to the institutionalization of other known unsafe practices.

Federal authority rooted in the “Commerce Clause”:

It is through the Commerce Clause that Congress’s development of the interstate highway system is founded. With the Highway Safety Act of 1966 they also asserted dominion over a uniform national traffic control standard for all highways and streets in the Nation. Yet the Constitution reserves Police Powers to the states. This Act accordingly relies on the local posting authority to have its engineering institutions, applying national prescribed practice, determine which device or solutions are required to regulate, warn, or guide traffic for the conditions found at each particular location being regulated, and to provide the force of law.

The Manual On Uniform Traffic Control Devices:

National MUTCD, published by the Federal Highway Administration (FHWA), is the national standard for traffic control — “signs, signals, markings, and other devices used to regulate, warn, or guide traffic.” To implement the 1966 Highway Safety Act and laws related to federal aid highways the Federal Highway Administration has adopted regulations requiring that all traffic control devices on streets open to the public conform to national standards prescribed in the MUTCD, which is incorporated by reference into federal regulations. 23 CFR 655.



Traffic control devices shall be defined as all signs, signals, markings, and other devices used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, pedestrian facility, or bikeway by authority of a public agency having jurisdiction.

The Manual on Uniform Traffic Control Devices (MUTCD) is incorporated by reference in 23 Code of Federal Regulations (CFR), Part 655, Subpart F and shall be recognized as the national standard for traffic control devices on all public roads open to public travel in accordance with 23 U.S.C. 109(d) and 402(a). The policies and procedures of the Federal Highway Administration (FHWA) to obtain basic uniformity of traffic control devices shall be as described in 23 CFR 655, Subpart F. Any traffic control device design or application provision contained in this Manual shall be considered to be in the public domain. Traffic control devices contained in this Manual shall not be protected by a patent or copyright, except for the Interstate Shield.

The need for uniform standards was recognized long ago. The American Association of State and Highway Officials (AASHO), now known as the American Association of State Highway and Transportation Officials (AASHTO), published a manual for rural highways in 1927 and the National Conference on Street and Highway Safety (NCSHS) published a manual for urban streets in 1930. In the early years, the necessity for unification of the standards applicable to the different classes of road and street systems was obvious. To meet this need, a joint committee of AASHO and NCSHS developed and published the original edition of this Manual of Uniform Traffic Control Devices (MUTCD) in 1935. That committee, now called the National Committee on Uniform Traffic Control Devices (NCUTCD), though changed from time to time in name, organization, and personnel, has been in continuous existence and has contributed to periodic revisions of this Manual. The FHWA has administered the MUTCD since the 1971 edition. The FHWA and its predecessor organizations have participated in the development and publishing of the previous editions. There were seven previous editions of the MUTCD and several of those editions were revised one or more times. Table I-1 traces the evolution of the MUTCD, including the two manuals developed by AASHO and NCSHS.

The U.S. Secretary of Transportation, under authority granted by the Highway Safety Act of 1966, decreed that traffic control devices on all streets and highways open to public travel in accordance with 23 U.S.C. 109(d) and 402(a) in each State.

Montana adoption of the MUTCD

MCA § 61-8-202. Department of transportation to adopt sign manual. The department of transportation shall adopt a manual for a uniform system of traffic-control devices consistent with this chapter for use upon highways within the state. This uniform system shall correlate with and so far as possible conform to the manual on uniform traffic control devices, as amended.

Section 1A.02 Principles of Traffic Control Devices (Current)

This Manual contains the basic principles that govern the design and use of traffic control devices for all streets and highways open to public travel regardless of type or class or the public agency having jurisdiction. This Manual’s text specifies the restriction on the use of a device if it is intended for limited application or for a specific system. It is important that these principles be given primary consideration in the selection and application of each device.

MUTCD Section 1A.07 Responsibility for Traffic Control Devices

The responsibility for the design, placement, operation, maintenance, and uniformity of traffic control devices shall rest with the public agency or the official having jurisdiction. 23 CFR 655.603 adopts the Manual on Uniform Traffic Control Devices as the national standard for all traffic control devices installed on any street, highway, or bikeway open to public travel. When a State or other Federal agency manual or supplement is required, they shall be in substantial conformance with the national Manual on Uniform Traffic Control Devices. 23 CFR 655.603 also states that traffic control devices on all streets and highways open to public travel in each State shall be in substantial conformance with standards issued or endorsed by the Federal Highway Administrator.

The law couldn’t be clearer; the MUTCD is the law.

Legal Effect and Preemption:

The Federal Highway Administration has designated the Manual On Uniform Traffic Control Devices (MUTCD) as the national standard for traffic control devices. All signs, signals, and pavement markings on public roads must comply with the MUTCD. See 23 CFR part 655, 23 USC 109(d), 23 USC 402(a), MUTCD introduction. This is in plain meaning language that governing federal law is a legal requirement, directing Montana to adopt uniform traffic control device specifications based on the national standard for all traffic control devices within the state; binding on local authorities as well as the department. Montana complied in MCA § 61-8-202; § 61-8-203; § 61-8-206.

The MUTCD by its language applies “to all roads open to public travel”. MUTCD § 1A.07, 23 CFR 655. The authorizing legislation preempts state law. 23 USC 109(d), 23 USC part 4. Compliance with the MUTCD is also a statutory requirement for receiving federal highway aid. 23 USC part 4. Recipients are required to certify compliance each time they request federal reimbursement for expenses on federal-aid projects. 23 CFR 630. Accepting the benefit of a federal program bars any claims that it is unconstitutional. Pennhurst v. Halderman, 451 U.S. 1, 17 (1981). Federal Power Commission v. Colorado Interstate Gas Co., 348 U.S. 492, 501-502 (1955).

Therefore, Montana has bound itself to follow the MUTCD even if there were no independent legal effect. If a state wishes to dispute the supremacy of federal law, it must first withdraw from the federal aid highway program. Far from contesting federal supremacy, Montana embraced it in statutes such as “MCA § 60-5-526. Restrictions. The department may take no action under this part that may result in the loss to the state of any federal highway construction funds.”, directing that no action shall infringe on its benefits.

Once a state accepts federal aid with conditions, there remains the question of enforcement. Aside from the obvious withholding of federal funds for non-compliance, federal law can be raised as a defense and under some conditions … federal law may also be used offensively.

Here is where the mandatory language matters. At one extreme, a condition may be held to create a "right" under federal law. In this case, persons whose rights have been violated may sue under 42 USC §1983, the federal civil rights law. This allows a plaintiff to sue an individual, local government, or state official in federal court. What defines a state official is important, because money damages may be received for violations unless the defendant is a state official, and the court may grant an injunction ordering compliance with federal law.

Speed limits, statutory requirements to be valid:

Compliance with the 1971 MUTCD, the first edition after the Highway Safety Act, was mandatory for federal–aid highways and recommended for other roads open to the public, but the FHWA later eliminated the distinction.

With publication of the 1988 edition, a federal regulation, henceforth all entities regardless of type or class or the public agency having jurisdiction had two years to bring all devices and practices into compliance with this specified national standard (MUTCD) which is based on verified sound engineering principles and practices. The one exception was those speed limits placed in accordance with, and mandated by the National Maximum Speed Limit. In 1995 that exception too was eliminated; henceforth two years from that date all limits posted must have been reviewed and certified that they too meet the statutory requirements of the national standard. Thereby eliminating the unsafe and confusing prior practice of devices being placed by political conjecture – reflected in the myriads of divergent and mostly arbitrary local practices in a nation with tens of thousand police power entities.

The shape and color of R2–1 speed limits signs are of common knowledge, rectangular in shape, white background with black legend and border, and it is reversed for R2–3 night time limit signs. The fact that this same federal law also has prescribed statutory requirements to determine the number posted is less known; nonetheless, these are statutory requirements that must be met. The FHWA web site, explicitly says, “There are no exceptions.”

1.  All devices shall conform to the National MUTCD and its referenced professional standards and practices (US Code Title 23 Section 109(d) and 402(a); 23 CFR part 655); the legal standard for all traffic control devices on roads open to the public in the nation;

2.   MUTCD Regulatory Sign Section, § 2B.11, Speed Limit Signs, federal device designation (R2-1), its “SHALL” requires an engineering study: An examination of all pertinent factors for the particular section of highway being regulated; a documented record.

MUTCD § 1A.13 Engineering Study:

  “The comprehensive analysis and evaluation of available pertinent information, and the application of appropriate principles, Standards, Guidance, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, operation, or installation of a traffic control device. An engineering study shall be performed by an engineer, or by an individual working under the supervision of an engineer, through the application of procedures and criteria established by the engineer. An engineering study shall be documented.”

3.   MUTCD § 2B.11, to meet the condition precedent of a uniform national application, the number chosen in the engineering conclusion “SHALL” be in “accordance” “with established” nationally recognized “traffic engineering practices”. If a limit is warranted by the study, the national accepted practice starting point is the 85th percentile speed of free-flowing traffic rounded up to the next 5 mph increment.

4.   MUTCD § 2B.11, “The speed limits shown shall be in multiples of 10 km/h (5 mph).”

5.   MUTCD § 2B.01 “Application of Regulatory Signs: Regulatory signs shall be used to inform road users of selected traffic laws or regulations and indicate the applicability of the legal requirements; Regulatory signs shall be installed at or near where the regulations apply. The signs shall clearly indicate the requirements imposed by the regulations and shall be designed and installed to provide adequate visibility and legibility in order to obtain compliance; Regulatory signs shall be retroreflective or illuminated to show the same shape and similar color by both day and night, unless specifically stated otherwise in the text discussion of a particular sign or group of signs (see Section 2A.08).” and (MUTCD § 2B.02 Design of Regulatory Signs, § 2B.03 Size of Regulatory Signs; Shape: Rectangle, Regulatory Series, Figure 2A-1. Height and Lateral Location; Colors Table 2A-4)

6.   Options: Within Engineering Judgment, traffic engineers can offer options or alternatives. However, any options shall also be in conformance with nationally accepted engineering practices. The engineer may also, in fact, determine viz. the engineering study, that there is no compelling factors that warrant a limit being posted (MUTCD § 1A.02), and make a decision not to post one. Conversely, posting too low a limit is known to increase accident rates and cannot be claimed within accepted engineering practice.

7.   MUTCD § 2B.11, when an R2-1 federal speed limit sign is determined to be warranted, the posting authority “SHALL” codify this engineering finding’s determined safest speed to post “by law, ordinance, regulation, or as adopted by the authorized agency”. This is purely a ministerial act.

In summary, if it’s determined to be warranted by an engineering study, every aspect of a speed limit sign: from its shape, color, size, height and its relative to roadway placement location, its numeric value determination and what the number is rounded to is regulated by governing federal law. Moreover, according to “MUTCD § 2B.01 Application of Regulatory Signs” a regulatory restriction SHALL be posted at the location being regulated. Therefore in plain meaning, unposted statutory limits are also unlawful.

Does Montana’s limits meet these requirements?

No! In every speed related Montana statute it purports to authorize statewide statutory speed limits by decree, there is no such authority in the above statutory requirements to establish lawful posted speed limits. If a study first determines they are warranted, each location is to be determined on a site-by-site study to support each device placed. In no way has this been done, nor is what has been done by MDT meet these mandates.

Unless MDT can produce a detailed written study for each section of highway, including its existing hazards, signs, delineation, volumes, accident records and prevailing off peak free-flowing prevailing speeds by vehicle classification, day and night, and a finding that applied nationally accepted practice to first determine if a limit is warranted, then its value to be posted, stating that all roads had the same conditions, speeds, service levels, terrain and speed related accident histories, it did not comply with governing law. No such state wide documentation and analysis was done. Therefore, without authority to do so, Montana under the color of governing federal law, posted and ordered enforced unlawful established speed limits.

Mike Duman, assistant division administrator for the Montana Division of the Federal Highway Administration, and he stated that the FHWA is unaware of any limitations that would prevent the legislature from setting statutory speed limits, as they did in 1999.

The opinion is clearly wrong in its assertion there is no limitations preventing Montana from doing as they wish in setting arbitrary state specific statutory limits; this is an unequivocal incongruity of process in the opinion’s claim that the state could, with impunity, disregard the same law’s clause that the limit “shall” be posted “in accordance with established traffic engineering practices” to facilitate the uniform application of mandated compliance with a national standard.

There is no requirement that a state have speed limits, but if they do, the principles of the MUTCD demand that they be reasonable and safe limits that promote traffic safety.

Because of the long history of abuse and misuse of speed limits, section 2B.11 of the Manual On Uniform Traffic Control Devices requires that every speed limit sign be justified by an engineering study. An “engineering study'' is a “comprehensive analysis'' by an engineer, using standards found in the MUTCD. A phone call from the Governor saying “I think the speed limit should be 75'' doesn't count. A bill from the legislature saying “the speed limit is 75'' doesn't count either. Any administrative or legislative action is a purely ministerial act, to adopt the speed limit determined by engineering practices.

A legislative body, chief executive, or any other elected or appointed local or state entity or official does not have the authority to alter the results of an engineering study or alter engineering standards or disregard codified national accepted practices. A political body or appointed executive can not express an engineering judgment nor can they disregard or change federal law or can they order a device used that is not in full accord with governing law and its national standards.

MUTCD § 1A.02 Principles of Traffic Control Devices

This Manual contains the basic principles that govern the design and use of traffic control devices for all streets and highways open to public travel regardless of type or class or the public agency having jurisdiction. This Manual’s text specifies the restriction on the use of a device if it is intended for limited application or for a specific system. It is important that these principles be given primary consideration in the selection and application of each device.

The MUTCD defers engineering judgment decisions only to licensed traffic engineers, or those that are advised or supervised by licensed traffic engineers applying nationally accepted practices. Within Engineering Judgment, the MUTCD does not authorize the use of a device except in accordance with accepted engineering practices. If the engineer has a contrary opinion to nationally accepted practice that would result in a deviation of application, there is a formal application process to ask for permission to do so; and such a trial requires written permission from the FHWA HOTO oversight committee.

MUTCD § 1A-4

“Qualified engineers are needed to exercise the engineering judgment inherent in the selection of traffic control devices, just as they are needed to locate and design the roads and streets which the devices complement. Jurisdictions with responsibility for traffic control, that do not have qualified engineers on their staffs, should seek assistance from the State highway department, their county, a nearby large city, or a traffic consultant.”(Montana’s restrictions are even greater; requirement: licensed Engineer’s only, registered with MDT)

MUTCD § 1A.10 Interpretations, Experimentations, and Changes

Design, application, and placement of traffic control devices other than those adopted in this Manual shall be prohibited unless the provisions of this Section are followed.

Requests for any interpretation, permission to experiment, or change should be sent to the Federal Highway Administration (FHWA), Office of Transportation Operations, 400 Seventh Street SW, HOTO, Washington, DC 20590”.

As the above MUTCD cites, in plain meaning, it clearly states deviations of “interpretation” or “application” are prohibited even when they’re done by traffic engineers, therefore the FHWA assertion that there are no limitations for Montana to deviate as they see fit is plainly false. The use of speed limit signs to enforce limits set by the decree of a political body is not an approved or recognized method or use. The manual’s “shall” directive in MUTCD § 2B.11 requires both a study, and that its findings and application be in accord with national accepted practices for that particular section of highway being regulated. Anything else is prohibited!

Example of how simple the language can be and comply with the law too.

MCA --- Speed zones and signs.

1.   The governing body of a local government or the department of transportation may prescribe speed zones, and install appropriate speed signs controlling vehicular traffic through hazardous areas, after necessary studies have been made to determine the need therefor in compliance with MCA § 61-8-202, and to eliminate speed zones and remove the signs therefrom whenever the need therefor ceases to exist. The posting responsibilities are as follows:

(a) The department of transportation shall be responsible for establishing the speed limits for motor vehicles on highways constructed and maintained under the authority granted by chapter ___ of MCA.

(b) Except as provided pursuant to this statute and the power granted in MCA ___, the local governing body or the town board or board of county commissioners may, by ordinance, limit the speed of motor vehicles on the highways not maintained by the department of transportation.

   After the establishment of a speed zone and the installation of appropriate signs to control speed, it is prima facie unlawful for any person to drive a motor vehicle upon the road and in the speed zone in excess of the speed MCA ___ therein authorized; unless the motorist establishes by competent evidence that the speed in excess of said limit did not constitute a violation of the basic speed law, at the time, place and under the conditions then existing. Add language to exclude school and construction zones from prima facie rule.

The above suggested statute wording by reference, requires speed limits to be based on an engineering study that has found the limit to be warranted and that the number posted is in conformance with national accepted practices in a procedure supervised by a licensed traffic engineer – nothing more.

Any limit, day or night, for that particular section of highway, that doesn’t have a supporting engineering study in which its finding supports the signs posted there, is non-complying. Montana’s MCA statutory mandates go even further by confining the posting of limits to its decree rather than the engineer’s location specific finding. Thus virtually all of your limits are non-complying. This includes on its face, any blanket statewide statutory limit set for any reason. There are procedures that would allow some specific area wide uniform postings, but the MCA statutes do not meet these statutory requirements.

Moreover, this is a national standard and no Montana only arbitrary statewide statutory designation can conform to a uniform national application of all like conditions being treated the same - Florida, Maine, and California et al. Further, even within a state, no statewide classification of highway has the same terrain, service levels, measured speeds or accident history; therefore, on its face, this too fails the MUTCD 2b.11, 2b.12, 2b.13 prescribed factual basis mandates.

Courts are required to read the plain meaning of a law as written, and if unambiguous, apply its literal meaning. The governing federal law is clear, plain meaning and not ambiguous. Therefore, none of the limits established in MCA § 61-8-303, § 61-8-309, § 61-8-310, § 61-8-312 comply with either the language or statutory requirements of governing federal law, and they are all illegally set.

More importantly, because of its nature and its recipient list, this letter represents a clear record of a “Notice of Defect” in Montana’s posted limits and underlying authorities, and prosecutions of known non-complying statutes violates due process. Once known, if prosecutions continue, all the affected citizens have a legal right to redress the wrong.

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