Montana Department of Fish, Wildlife and Parks biologists have been out gathering data on the number, kind, size, weight, and even a few DNA particulars of the fish that inhabit the Bitterroot River. It’s something of an annual event. They do it by fishing, but not with a hook. They use electrodes and nets.

An electrical charge is transmitted from a battery on the boat through cables dangling from long poles protruding ahead of the boat, shocking any fish within a certain distance of the cables. The fish are momentarily immobilized and begin floating. They are picked up with nets and deposited into a holding case in the boat for analysis.

The fish are classified, measured and weighed, and a tiny clip may be taken from a few for DNA identification purposes, and then returned to the river.

The results of this year’s electro-shocking survey will probably be available by the end of next month.

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County gets more accurate floodplain maps

By Michael Howell

One of the few sets of land use regulations left in Ravalli County, following the defeat of zoning and the repeal of the Growth Policy, is the county’s floodplain regulations. Implementation of those regulations is about to get easier and much more exact as the second phase of the new mapping process has been completed.

The regulations generally aim at protecting public health and safety and property located within areas calculated (based upon elevation above the river) to be susceptible to flooding in the largest “100 year flood event.”

But Ravalli County Floodplain Administrator Eric Anderson is quick to clarify, “That doesn’t mean that this flood event only happens once every 100 years. It means that every year there is a 1 percent chance of this type of flood event happening.” Anderson said that on the fringe of the designated floodplain there is a 27 percent chance of flooding over the span of a 30-year mortgage.

And it is primarily the danger to homeowners located in the floodplain, not only the danger to themselves but the dangers posed to others should their home be washed downstream, that drives the restrictions on development within the area.

Within a floodway, for instance, mobile home replacement, new construction, reconstruction which enlarges the footprint, or substantial improvement is prohibited. Within the 100-year Special Flood Hazard Area, new residential construction is prohibited and Floodplain Permits are required for all nonresidential construction and replacement, reconstruction or substantial improvement of existing structures.

Floodplain maps are crucial for implementing these regulations. There are two types of floodplain maps for Ravalli County: regulatory flood maps for both the Bitterroot mainstem and the East and West Forks and the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Maps (FIRMs) for the mainstem. The mainstem regulatory maps were adopted February 10, 1995? the East and West Fork regulatory maps were adopted January 9, 1997. On September 7, 1998, FEMA adopted the FIRMs, which are valid for flood insurance and mortgage purposes. FEMA provides insurance but doesn’t write the policy. Anderson said that about 150 people had flood insurance in Ravalli County.

“It wouldn’t be affordable except for the role played by the Floodplain Administration and FEMA,” said Anderson.

One problem, however, is that the actual boundary of the floodplain is related to elevation above the river and although these maps represent this to some degree, there is room for error, especially if the map is based upon contours that are 20 to 40 feet apart, as the current ones are. That’s a big gap and a lot of errors can occur.

If a landowner believes that the map is wrong he or she may apply for an amendment to the map based on an actual land survey. The amendment process is free, but the landowner pays for the survey.

A more accurate map would require much fewer amendments and could save the county and the landowners a lot of money in the process. That’s exactly what we are now getting with the new Light Detection And Ranging (LIDAR) maps that have been produced. This technology maps the land surface in 2-foot contours. That’s 10 to 20 times more accurate than the old maps.

LIDAR is an optical remote sensing technology that measures properties of scattered light to find range and/or other information of a distant target. The prevalent method to determine distance to an object or surface is to use laser pulses. The range to an object is determined by measuring the time delay between transmission of a pulse and detection of the reflected signal.

FEMA recognized the advantages in having more accurate maps and instituted a Map Modernization Program to help update county maps across the nation. Ravalli County took advantage of it and completed Phase I from the Missoula County line to Victor Crossing last year. The second phase was initially set to cover the stretch from Victor Crossing to Hamilton and up the Skalkaho. But, due to cost savings in part related to working in cooperation with the Forest Service, Phase II was extended to cover the main stem of the river all the way south of Darby.

The Forest Service joined with the county and got a number of land areas mapped for its own purposes. These included areas around Trapper, Marten Creek, Darby Lumber, Daly Gold, and the Three Saddle areas.

Anderson said that the improved accuracy of the new maps was substantial, but he warned that they are still not 100 percent accurate.

He said that while FEMA bases its decisions on the FIRM maps, the County bases its decisions on the actual on-the-ground facts.

“There will still be some occasion for doing an actual survey,” he said. But, hopefully, a lot less often than before.

“We want to work as much as we can,” said Anderson, “to help people do what they want to do within the law.”

The new LIDAR based data of the mainstem of the Bitterroot River from the Missoula County line to Darby is already accessible to the public online. But the database is huge so anyone wishing to download the entire thing should bring their own hard drive to the Planning Office.

A map based on this data will be reviewed by FEMA, possibly by November, and then undergo local review with public comment before finally being adopted. That process could last up to a year from the production of the preliminary map, Anderson said.

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Commissioners consider foreclosure on Darby superfund site

By Michael Howell

The old, abandoned S&W Sawmill site north of Darby was declared a state Superfund clean-up site when it was discovered that the property was contaminated with PCBs (polychlorinated biphenyls), probably left over from the treatment of wood with creosote as a preservative.

The public, legal, and scientific concerns about PCBs arose from research indicating they were likely carcinogens having the potential to adversely impact the environment and therefore undesirable as commercial products. PCB production was banned by the United States Congress in 1979 and by the Stockholm Convention on Persistent Organic Pollutants in 2001.

But PCBs are very stable compounds and do not decompose readily. Their destruction by chemical, thermal, and biochemical processes is extremely difficult, and presents the risk of generating extremely toxic dibenzodioxins and dibenzofurons through partial oxidation. Intentional degradation as a treatment of unwanted PCBs generally requires high heat. As a result some of the soil at the site may have to be shipped out of state for incineration. It’s a costly process and the full price tag has yet to be determined.

The cost in this case is being split between the current property owner, International Paper, and the state of Montana. The paper company will pay 39 percent of the cleanup costs and the state will pay the “orphan’s share” of 61 percent. The cost share arrangement was agreed to in a process designed to help avoid litigation over the matter under the Comprehensive Environmental Cleanup and Responsibility Act (CERCA).

According to the state’s Department of Environmental Quality (DEQ) website, the Controlled Allocation of Liability Act (CALA), added by the Montana legislature to the state Superfund law in 1995, provides a streamlined alternative to litigation that involves negotiations designed to allocate liability among persons involved at facilities requiring cleanup, including bankrupt or defunct persons. Cleanup of these facilities must occur concurrently with the CALA process and CALA provides the funding for the orphan share of the cleanup. Since cleanups typically involve historical contamination, liable persons often include entities that are bankrupt or defunct and not affiliated with any viable person by stock ownership. The share of cleanup costs for which these bankrupt or defunct persons are responsible is the orphan share. This is the share that the state is taking on.

So why would the county want to get involved? According to Commissioner Carlotta Grandstaff, to speed up the cleanup process. By foreclosing on the property for $65,000 owed in back taxes and moving it into public ownership the cleanup process would be facilitated. Public ownership would reduce the overall costs of the cleanup and, by placing a deed restriction on the future use of the property restricting it to commercial, industrial or recreational uses, a lower bar for cleanup standards would also reduce costs.

Of course, one thing that the Commissioners would not want to see is any liability for the county with regards to the cleanup. But Grandstaff said that Deputy County Attorney Dan Browder has assured them that the CALA process has settled the issue of liability for the cleanup. She said the company has also indicated a willingness to offer further assurances by agreeing to indemnify the county and put up a bond to assure that the cleanup is completed. Once the costs were more closely ascertained they would put up a performance bond to match it.

The Commissioners will consider officially foreclosing on the property at a meeting scheduled for November 8. Grandstaff said that the foreclosure process would take 60 days to complete. During that time Darby resident John German, who has first position as a lien holder on the land, would have an opportunity to step in and pay the taxes himself to protect his interest.

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CC-2: Should Montana rewrite its constitution?

By Ann E. Fleischli
Community News Service, UM School of Journalism

Montanans are being asked this fall if they want to rewrite their state’s constitution.

No other ballot issue has more potential to affect the lives of ordinary Montanans, but you would be hard pressed to know that. No one is organizing rallies or debates. There are no TV ads, billboards or yard signs.

The question of whether to convene a constitutional convention, or “con-con,” is on the ballot because the framers of the state’s 1972 constitution required that Montanans be offered that momentous opportunity every 20 years, starting in 1990.

Retired lawyer Jean Bowman, delegate to the 1972 constitutional convention and its secretary, recalls that the document’s authors were adamant that each generation should have the chance to remake Montana’s government.

“(The constitution) really intends that the citizens participate because it expects citizens to be able to get the facts and think before voting about what they are doing,” she says.

So far, Montanans haven’t taken up the framers’ offer. Montanans voted overwhelmingly against calling a constitutional convention in 1990, and most observers predict a similar result on Nov. 2.

But the constitution, which Montanans barely approved in 1972, does have its critics.

Some conservatives argue that the constitution’s guarantees of “a clean and healthful environment” and “equality of educational opportunity” have been interpreted by the courts in ways that block the development of Montana’s natural resources and force lawmakers to increase spending for schools.

Those arguments are at the core of state Sen. Joe Balyeat’s support for a new con-con. Writing in the state’s official voter pamphlet, he describes the constitution as "deeply flawed, self-contradictory, and unworkable.” The cure, he adds, is a complete rewrite.

"Since the 1972 Constitution was passed, we've seen Montana courts take over almost dictatorial power in the Montana political arena,” writes Balyeat, a Bozeman Republican. “We've seen the Montana economy stagger to the point where average wages, which were once ranking in the top ten in the country, are now near dead last in the country."

He adds, "I believe the loose language in the Montana 1972 Constitution is being used by activist judges to garner more power unto themselves and it's being used by radical environmentalists to roadblock any attempt at development."

But the constitution’s defenders say the document still reflects Montanans’ vision. They see no need for wholesale changes.

“Montanans have always been independent, individualistic and insightful,” writes former state Rep. Larry Jent, a Bozeman Democrat. “The traits which make us a people and the things we value are enshrined and protected in our Constitution.”

Joining Jent in that sentiment is Bob Brown, a former Republican secretary of state and candidate for governor. He says Montana’s constitution is considered one of the nation’s most modern, with its rights to privacy and a clean, healthful environment – and its provision for a possible revision every 20 years.

“My gut says that this is a good document and it has served the state,” Brown says. “It would be a mistake for the voters to call another convention."

One explanation for Montanans’ reluctance to call a convention may be that they already have the means to make occasional constitutional changes through initiatives and referendums, Brown says. Montanans have enacted plenty of changes since 1972.

“It's not that difficult, for a compelling problem,” he says. “It's happened quite a few times. There's not enough wrong with this constitution, though, to rewrite it.”

Montana’s original 1889 constitution was a different story. Still, it survived for more than eight decades before citizens saw the need for major surgery in 1972. That’s not a decision to be made lightly, Brown says.

"Calling a constitutional convention is disruptive, like a heart transplant,” he says. “All the parts have to be re-attached in a huge process. Also, a new constitution might not be as empowering or as populist as this one.”

Jim Lopach, a longtime political science professor at the University of Montana, agrees, saying the fear of something worse may prevent liberals and conservatives alike from calling for a convention – even if they have problems with the current document.

"Those who follow political issues and know what it's about believe that neither political side is willing to risk opening up this Pandora's box of issues,” he says.

That’s a risk retired Missoula lawyer Bob Campbell says he doesn’t want to run.

Like Jean Bowman, Campbell was a delegate to the 1972 constitutional convention. He prizes the document’s emphasis on a clean environment and education. He cherishes provisions that guarantee a citizen’s right to privacy, the right to know about the workings of government, and the right to participate in its deliberations.

Still, he says he is surprised there isn’t a louder push for holding a con-con, given the general criticism of government expressed by the Tea Party movement. The initiative is a Tea Party “dream,” he says.

Like Campbell, Bowman won’t be voting for CC-2, but she says the idea of allowing each generation to consider rewriting Montana’s constitution remains vital.

"I still think that it is a good idea to have the issue on the ballot,” she says.

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CI-105: Initiative seeks to ban real estate transfer taxes

By Jon Tweeten
Community News Service, UM School of Journalism

Montana has no tax on the sale or transfer of real estate. The backers of CI-105 hope to keep it that way.

Constitutional Initiative 105 would amend the Montana Constitution to prevent lawmakers from enacting real estate transfer taxes. Essentially sales taxes on property, such taxes in other states are collected whenever homes, apartments, condominiums, commercial property, farms or rangelands change ownership.

Montana is one of 13 states without such a tax. Should CI-105 pass, Montana would become the first state to ban real estate transfer taxes outright.

The Montana Association of Realtors led the drive to put the issue on the ballot. Its supporters also include an array of business groups, including the Montana Chamber of Commerce, the Montana Taxpayers Association, the Montana Contractors’ Association, the Montana Bankers Association and the Montana Stockgrowers Association.

Together they form the Coalition to Prevent Double Taxation, which has raised more than $800,000 to promote the measure. Much of the money has come from the Chicago-based National Association of Realtors.

State Rep. Bob Lake, a Realtor and chairman of the House Taxation Committee, is the measure’s chief spokesman. He said bills to enact such a tax have come before lawmakers in nine out of the past 10 legislative sessions. Sooner or later, he fears, it may pass.

As he sees it, a constitutional amendment is the only way to "put the issue to bed once and for all."

His chief concern about a real estate transfer tax is that, once enacted, lawmakers would be endlessly tempted to raise it, especially in years when the state budget is tight.

"The electorate is concerned about the continuous expansion of government, and this is nothing more than a sales tax on property,” Lake said.

Webb Brown, president and CEO of the Montana Chamber of Commerce, said the initiative is pro-business, pro-jobs, and pro-economic growth.

"The economic recession is here in Montana, and the last thing Montana businesses and homeowners need is another financial burden," Brown said.

Proponents of the initiative frequently refer to real estate transfer taxes as "double taxes," saying Montana property owners should not have to pay a transfer tax in addition to existing property taxes.

But the measure has its opponents. Montana's largest labor union, the Montana Education Association and the Montana Federation of Teachers, has come out against the initiative.

MEA-MFT President Eric Feaver said that amending the state constitution to implement such a ban unfairly circumvents the traditional legislative process. He said constitutional amendments like CI-105 “represent very bad public policy."

“If it passes, it will end up squeezing ever tighter potentially valuable revenue streams for the state,” he said.

Feaver also worries that the initiative’s passage would set a new standard for how Montana sets tax policy.

“This initiative will establish a precedent that other entities – not just Realtors – will want to exploit,” he said, adding that once CI-105 is on the books other groups will seek to ban taxes they consider “troublesome.”

In the 2009 Legislature, Sen. Ron Erickson, D-Missoula, failed to pass a bill calling for a percent tax on the sale of property worth $500,000 or more. The money would have gone toward low-income housing. Such a tax would not affect the average Montanan and would provide the state with much-needed revenue, he said.

Another critic of CI-105 is Bob Oaks, executive director of the North Missoula Community Development Corporation, a nonprofit that promotes homeownership opportunities for low- to middle-income residents.

Oaks points to the initiative's substantial out-of-state backing as evidence that special interests have only the bottom line in mind. "Montana's constitution shouldn't fall victim to out-of-state special interests," Oaks said.

Oaks said real estate transfer taxes are common throughout the United States and aren't nearly as backbreaking as the initiative’s backers would have voters believe.

"Most transfer taxes are a fraction of a fraction of a percent," said Oaks. "The average homeowner isn't going to be significantly burdened by a transfer tax."

The one thing both sides agree on is the difficulty in getting voters to focus on the question.

“I think people don’t understand the nature of what’s being proposed, and time is running out to get people informed,” Oaks said.

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