Newly elected Commissioners J.R. Iman and Greg Chilcott took the oath of office last week. They were both sworn in by County Clerk and Recorder Regina Plettenberg. Iman is new to the Board of County Commissioners; Chilcott was re-elected. Both will serve four-year terms. Debbie Harmon was sworn in by Sheriff Chris Hoffman. This is Harmon’s sixth time to be sworn in as Clerk of District Court.

Commissioner Carlotta Grandstaff was re-elected as chair of the Board of County Commissioners for the coming year and Commissioner Jim Rokosch was again selected to be vice-chair.

Judge James Haynes, re-elected to serve as Ravalli County District Court Judge, will be sworn in at a ceremony on Thursday at 9 a.m.

Requests to rehear Mitchell Slough case denied

By Michael Howell

The eight-year-long legal battle over the status of Mitchell Slough crept ever closer to a final resolution on December 31, 2008, when a united Supreme Court issued an order denying two motions for a rehearing of the case. The Court decided on November 17, 2009 that Mitchell Slough, a 16-mile-long side channel of the Bitterroot River, was subject to the state’s 310 Law and accessible to the public under the state’s Stream Access Law (SAL).

Fishing access to the slough and 310 Permitting had been suspended for over year following a ruling by District Court Judge Ted Mizner that the slough was “no longer natural” due to the many alterations that had been made to it over the last 100 years, and thus not subject to the laws which govern “natural” waterways such as streams and rivers. The Montana Supreme Court unanimously overturned Mizner’s ruling, finding that no amount of alteration could convert a natural stream into a ditch.

The case began when a local conservation group, Bitterroot River Protection Association (BRPA), sued the Bitterroot Conservation District over its decision to remove the slough from protection under the 310 Law. It quickly morphed into a stream access case as well. The Conservation District did not request a review of the Supreme Court Decision, but two intervenors in the case did: Marnell Corrao Associates, owner of the Double Fork Ranch, and Walter Babcock and other landowners along the slough including Charles Schwab’s Tucker Crossing Ranch, Ken Siebel’s Bitterroot Springs Ranch, and Huey Lewis’ Valley Springs Ranch.

Marnell argued that the Supreme Court had overlooked factual material that was relevant to its decision. Specifically he argued the Court had overlooked the fact that the upper reach of Mitchell Slough, on the Double Fork Ranch, between Tucker Headgate and Victor Crossing, was “radically different” from the middle and lower reaches, “and does not demonstrate any of the functions the Court analyzed as subjecting a waterbody to Stream Access Law.” He criticized the Court for not recognizing this difference in its decision. He asked the court to grant a rehearing of the case in District Court to make a decision about this factual distinction.

Marnell also argued it is only his water rights from the Bitterroot River and the Humble Drain that make the upper reach flow and that it has no “natural” flow perennially. He argued that the upper reach falls outside the natural meander corridor of the river and that it was extensively altered with berms and dikes to make it flow. He argued that the one-quarter mile of constructed canal behind the Tucker Headgate is further proof that the upper reach should be exempted from the Stream Access Law.

“While the court acknowledged the tensions inherent with the SAL, lumping the upper reach in with the two lower reaches rides rough shod over the constitutionally protected water rights the SAL’s diversion protection was intended to protect,” it states in the appeal.

Marnell also argues that the case of Norwood v. Service Distribution Inc. should be controlling in this case and requires that the case is sent back to District Court for factual determinations relative to the law.

He asked the Court for a rehearing before the District Court on the matter.

John Bloomquist, representing the other landowners in the case, also argued that the Court had overlooked facts in the case that establish that the current location of the Mitchell is not in the same course as the historical river channel. He argues that the court overlooked overwhelming factual evidence of the “unnatural nature of the Mitchell itself as a waterbody.”

Bloomquist pointed to testimony that the current course of the waterbody did not correspond to the original natural watercourse depicted on an 1872 GLO survey. He pointed out the constructed ditch that stretches from Tucker Headgate for a quarter of a mile and testimony of many other alterations to the slough as evidence that it was no longer natural.

He also asks for a rehearing of the case before the District Court.

Bob Lane, chief attorney for Fish Wildlife and Parks, entered an objection to the requests calling them “a waste of the time of the parties and this Court.”

Lane noted that the Court had considered the Tucker Headgate and the quarter-mile canal that had been installed in the past when it rendered its decision that Mitchell Slough is entirely a natural stream. He quotes the Justices:

“While the Tucker Headgate, the 400 yards of canal and other improvements are certainly man-provided, too much of the Mitchell’s physical channel, and too many of the functions served by the channel, are provided by nature to be able to conclude that it has since become man-made, man-improved, certainly, but not man-made.”

Lane stated that Marnell was simply “re-arguing an already failed case and misunderstanding and misapplying the Court’s conclusions of law.”

He also points out that Marnell is wrong in claiming that the slough has no natural gain of water in the upper reach. He states that Marnell forgets to calculate his own withdrawal of almost 16 cfs in the calculations.

Lane argues that the Norwood case is not only not controlling, it is not even related to the case at hand. He states that the Norwood case was a grant of a summary judgement and not a decision by a lower court after a bench trial on the merits.

Lane argues that the Supreme Court did consider the facts referred to by Bloomquist but did not find them convincing or meaningful.

He noted that testimony from Fred Burnell established that out of over 20 points identified on the original GLO survey, only two or three were not consistent with the slough’s current position on a contemporary USGS survey map. Those discrepencies, he points out, are understandable given the extensive alterations and changes in the slough made over the years.

“The facts [referred to by Bloomquist] were not unconsidered, but rather disbelieved,” he wrote.

Attorney for BRPA, Jack Tuholske, also entered objections to the two requests for a re-hearing.

Tuholske noted that the landowners “fail to confront the ultimate fact that no testimony established that humans dug the 16-mile Mitchell Slough to create a ditch.” He said they merely continue to ignore the Court’s ruling and recite a litany of alterations, showing it’s been bermed, altered and moved, but no amount of alteration can make a stream into a ditch.

Tuholske also states that the Supreme Court did examine all the facts in the case and agreed with the findings of the Bitterroot Conservation District and the District Court that Mitchell Slough was once a natural water course. The Court simply clarified that no amount of alteration could change the fact that it was a natural waterbody which has been altered, not a constructed ditch.

“This Court did not broaden the Stream Access Law,” wrote Tuholske. “It simply applied it in a common-sense fashion, rejecting the ‘bold’ attempt by landowners to assert control over a public resource. Montana has never sanctioned privatization of a once natural stream.”

Tuholske concludes that once the Court made the legal decision that a natural stream could not be made “unnatural” by alterations, and that irrigation return flows, once they leave the place of beneficial use, are “waters of the state of Montana,” then the rest of the ruling logically follows.

“The undisputed facts that the Mitchell flows ‘mostly in an historic channel’, that Mitchell Slough carries substantial unappropriated water year round, and that Mitchell Slough harbors fish that are a ‘public resource’, led to the inevitable conclusion that Mitchell Slough is a natural waterbody under the SAL and must be protected under the 310 Law,” wrote Tuholske.

On the last day of 2008, the Supreme Court issued the short order stating simply that, after reviewing the petitions for a rehearing and the objections, the petitions for a rehearing were denied.

Mack Long, Regional Director of FWP in Missoula, cautioned that until the Supreme Court order denying the petitions for a rehearing is actually filed in District Court, Mizner’s ruling is not officially reversed. Until then recreational use of the Slough is still prohibited. That filing is expected to happen within days.

Ira Holt, President of BRPA, said that his organization will move forward with re-opening the official Portage Route request filed with the County Commissioners that was put on hold pending outcome of the litigation. He said that one portage route in that original request would be withdrawn. The request for an established route of access into the slough at Bell Crossing would be maintained and portage routes at Victor Crossing and at Tucker Headgate would be added to the request.

Hamilton City Council

No planting in city parks without written authorization

By Michael Howell

The Hamilton City Council unanimously approved an ordinance amending the Hamilton Municipal Code so that it now requires any planting of trees or other vegetation in city parks by citizens to be authorized in writing in advance by the Director of Parks. Unauthorized planting will be subject to removal. The cost of removal may be charged to the unauthorized planter. The City Council will have the final say.

There was no public comment at the first reading of the ordinance. Passage of the ordinance was recommended by the Legislative Committee. The ordinance was unanimously approved and will have a second hearing this month.

The council also passed a resolution authorizing a grant application for Safe Routes to Schools and the use of Community Transportation Enhancement Program (CTEP) funds to construct curbs, gutters and sidewalks on State Street from 6th St. to 9th St.

Several people expressed support for the sidewalk project.

Dale Huhtanen, of D& D Consulting, said that the sidewalk would serve 100 to 120 students going to schools in the area. Dan Kimzey, Hamilton Middle School Principal, and Hamilton Police Chief Ryan Oster also expressed support for the sidewalk project.

The City of Hamilton became the latest municipality to express official support for the reactivation of the Bitterroot Branch Passenger Railroad Service. It is a project being vigorously promoted by the Bitterroot Valley Chamber of Commerce, and the idea is gradually gaining steam. The aim is to establish regular passenger rail service between Missoula and the Bitterroot Valley. Councilor Nancy Joy Hendrickson said that she would like to see the passenger service established.

“It’s a good use of the tracks,” she said.

In other business the Council:

- approved contracting with D & D Consulting for grant writing services.

- approved contracting with RAM Engineering for the reconstruction of Honey House Lane from Ravalli to the city limits. Approval was recommended by the Public Works committee. The project is estimated to cost $26,700.

- approved a contract for $10,000 with RAM Engineering to provide a design for extension of the water main from 226 Marcus Street to Silverberry Street. The plans call for re-routing the old ten-inch water line which runs under the homes in the area so that it runs along Marcus Street instead.

- approved a job description and the hiring of a Deputy Clerk.

- approved the job description and hiring of a City Planner/Special Projects Director at an annual salary of $55,000.

- approved a salary adjustment for Police Chief Ryan Oster, raising his salary to $58,000.

- rescinded a previous motion to hold Committee of the Whole meetings twice a month and instead set aside one evening a month for a Committee of the Whole to meet, if desired by the Council.

Stevensville Town Council

Stevi considers water system improvements

By Michael Howell

The Town of Stevensville is holding a public meeting next week to discuss pending and potential applications to USDA Rural Development for loan and grant funding for water system improvements.

The money would be used to install water meters on 315 non-metered services, install a radio read system and move to a monthly billing system. It would also be used to install 4,500 linear feet of 20 inch water main along Middle Burnt Fork Road, develop production wells to 1,500 gpm and 225 million gallons annually with a booster station and back-up power. The money would also be used to construct a new one million gallon level storage tank and replace or install 8,144 linear feet of pipeline to maintain system fire flows and accommodate the maximum per day usage.

The Town is seeking public comment on the proposal at a meeting scheduled for Monday, January 12, at 7 p.m. at the Town Council chambers located at 206 Buck Street. Written comments may be submitted to the Town of Stevensville at P.O. Box 30, Stevensville MT 59870. Comments will be accepted until January 12, 2009.

Addressing poverty issues…

Horizons program at work in the Bitterroot

By Michael Howell

A regional program aimed at reducing poverty in the Northwest, the Horizons Program, is making waves in Darby. Horizons is a community leadership program aimed at reducing poverty in small rural and reservation communities with populations less than 5,000. Darby fits the bill and has responded enthusiastically to the program.

The Horizons Program is implemented by a partnership of organizations including the Northwest Area Foundation, the Montana State University Extension Service, Everday Democracy (formerly the Study Circles Resource Center), and the Pew Partnership for Civic Change.

Horizons is funded by the Northwest Area Foundation, whose mission is to help reduce poverty in Minnesota, Iowa, North Dakota, South Dakota, Montana, Idaho, Washington and Oregon. It directs the two grants that come to communities during the program, totaling up to $10,000.

Horizons communities take part in a four-phase 18-month-long process in which they must meet thresholds within defined time frames to move forward in the program.

The process begins with the establishment of study circles to host a public dialogue about poverty in the community and generate ideas for reducing it. Then it moves into leadership training. The next phase involves developing a community vision of prosperity followed by an action phase in which plans to reduce poverty are implemented.

According to Montana State University Extension Agent Bobbie Roos, who helped initiate the process in Darby, it seemed appropriate to start by approaching the Darby Town Council. Roos said that the council was extremely receptive to the idea. She said that over 50 people showed up at the program “kick-off” event. She said that forty-two people showed up to participate in the Study Circles and five were established. Each circle met on a different night for two hours a week.

By December 16, the community had reached the stage in the process when an Action Forum is held to define specific actions to achieve the community’s vision. Roos said that she was surprised and thrilled when over 60 people showed up in 20 degree below zero weather to form an action plan.

Specific goals identified in the process were to:

- establish a food bank

- bring together business men and women to attract and retain jobs in a community with 24 percent poverty.

- establish a parks and recreation department and a community development district

- launch a community newspaper.

The Darby Library is currently spearheading the effort to get grant money to help implement those community goals.

Veryl Kosteczko, chair of the Darby Library Board of Trustees, said that the Board and Library Director Amy Lee Fannin are in wholehearted support of the Horizons program and the library has agreed to apply for a grant to the International City/County Management Association, a division of the Gates Foundation, for financial support.

She said that the grant is to enable public librarians to join with local government managers in developing and implementing solutions to specific community challenges. She said they are partnering with Horizons and the Town of Darby in the application. She said that the grant is designed to help local government and library leaders to collaboratively launch and support change and innovation in the Public Library system. It is aimed at increasing the members’ understanding and support of the 21st century library and their leadership role in promoting the public library system.

The Ravalli County Commissioners recently endorsed the grant application stating that “increased funding through the Gates Foundation will allow the Darby Library to meet its goal of hiring a coordinator, working under the direction of the library, who will implement the goals defined by the community in a series of workshops… We applaud your efforts to foster strength and sustainability in a geographically isolated community that suffered a severe economic downturn in the past decade with the loss of the once dominant timber industry.”

Ravalli County Extension Agent Katelyn Andersen recently introduced the concept of the Horizons program to a dozen interested people in Stevensville, a Bitterroot community that also meets the requirements for participation in the program. According to Andersen, the Stevensville community will have to work quickly to catch up with the scheduled timeline for the program in Ravalli County, but with prompt action on the part of new participants the community still has a chance to meet the thresholds and timelines involved. A Horizons kickoff event for Stevensville is being planned for Friday, January 16 at 6 p.m. in the Stevensville School multi-purpose room. Anyone interested in participating in a Study Circle in the Stevensville/Lone Rock area is encouraged to contact Andersen at 375-6611 or e-mail her at katelyna@montana.edu.

Commissioners correct draft minutes

Contrary to the draft minutes of the County Commissioners’ meeting referred to in last week’s Bitterroot Star, Commissioner Greg Chilcott did not vote to approve the Ricketts Road Voluntary Zoning District. Chilcott said that he voted against the proposed voluntary zoning district because he felt that, although it was legal, it was not fair to property owners that had already committed to commercial development of their property but are now prohibited from expanding.

“I could not vote for a voluntary zoning district that was designed to stop development that was already occurring,” said Chilcott. He said that the minutes of the meeting would be corrected before they are officially adopted.

The priorities set by the County Commissioners for the Planning Department were also incorrectly recorded in the draft minutes, according to Commissioner Jim Rokosch. He said that support for litigation was a first priority and preceded subdivision review and office administration/customer service. He said that support for efforts at voluntary zoning was also a priority following updating the subdivision regulations and developing an enforcement officer position.

Page One •	Valley News •	Op/Ed •	Sports •	Calendar •	Classifieds •	Legals •	Links •	About Us •	Back Issues •	Email Us •	Home
©2009 Bitterroot Star This site was Done By Dooney