Volume XX, Number 7

Thursday, September 9, 2004

Page One News at a Glance

Water fight on the Burnt Fork

Hamilton council considers budget matters

Combined Idaho-Montana "Lost Trail State Park" proposed

Water fight on the Burnt Fork

At the beginning of the 20th century it was a fight to the death over an irrigation diversion near Stevensville that culminated in the first court ordered adjudication of water rights on the Burnt Fork of the Bitterroot in 1905. Now, a hundred years later, people in the valley are still fighting over the water and the courts are still trying to settle the disputes. One of the latest battles is taking place over a longstanding trouble spot where the Burnt Fork of the Bitterroot emerges from the Sapphire mountains and splits into two channels, one running along Illinois Bench to the north, the other running along Sunset Bench to the south.

According to Ravalli County District Court records, the latest trouble began about two years ago when Dr. Chriss Mack, a relative newcomer to the area who is raising buffalo at his ranch along South Burnt Fork Road, went into the creek where the north and south channels split and excavated the streambed without a permit to allow more water down South Burnt Fork Creek. Mack has a water right out of South Burnt Fork Creek, sometimes called Dry Creek because it would dry up in the summer after the high water period had passed and the low water flows in the creek would naturally flow down the north channel, abandoning the south fork.

Mack claimed at the time that he was just trying to undo the work of a developer previously interested in the property who wanted to dry up the South Burnt Fork Creek to help gain approval for a subdivision he had planned for the ranch. Mack's unpermitted action, however, riled other water users and landed him in District Court before Judge James Haynes.

In May of 2002 Haynes issued an order favoring the installation of a permanent diversion structure to be installed at the point where the creek splits, "to deter various unauthorized channel modifications and remodification."

That order was subsequently vacated, however, and a hearing was held in October of 2003 to consider the issues of the water measurement gauge near the old Grist Mill above the point where the creek splits, the appropriate amount of water to distribute between the North and South branches of the Burnt Fork Creek and to consider the historical and legal definition of "high water" in the context of the 1978 Amended Decree for the Burnt Fork Watershed. In that decree it stated that the North Burnt Fork "has always conveyed the majority of the water." In recent years it has carried about two-thirds of the water during high water and all of it during low water periods. The hearing was also to consider the most appropriate water diversion structure and method.

Haynes found as part of his ruling that "the ultimate effect of Dr. Mack's unauthorized excavation and attempts to correct it with a simple diversion have at least slightly lowered the stream level at which water now flows into South Burnt Fork Creek." This, of course, left the water right holders along the North Burnt Fork, whose rights mostly precede those of Mack in priority date, feeling robbed. Haynes ordered that the flows be returned to their historical level. He also clarified the notion of "high water" versus the notion of "excess water." He said that the "high water" flows in spring should be left to their natural course to divide unimpeded as they did historically. But he added that the two-thirds and one-third flows referred to in the decree "appears to be a general recognition of the natural average run-off flows, rather than a directive to ensure one-third of the run-off always is diverted into the South Fork branch."

"Excess water," on the other hand, involves excess water during the irrigation season. This occurs when there is water in excess of the amount for which any and all North Fork water users have put in a call to apply their adjudicated right.

However, Haynes rejected the notion that the total adjudicated amount must be sent down the North Fork branch at all times, whether there had been a call for the water or not. But he also rejected the notion that excess water must be diverted down the South Fork branch at any time, "including to fill the right of Chriss Mack." Mack's right on the South Fork, he concluded, should be filled only when water naturally diverts down the South Fork branch.

Haynes found that the actual purpose of a diversion at the split was not to divert water down the South Fork, but to ensure that water could be diverted down the North Fork when called for by the water right holders with the earliest priority. He also noted that the Court-appointed Water Commissioner has full and sole discretion to regulate the water diversion. Anyone else who tampers with the diversion is subject to arrest and contempt of court. The Burnt Fork Water Commission is authorized to oversee the stream measurements and the repair and restoration of the area to restore it to the historic level of water flow into the South Fork branch.

Mack's attorney then asked Haynes to reconsider his ruling, arguing that the 1978 Amended Decree was invalid and that Haynes misapplied it in his decision. He questioned the District Court's jurisdiction, arguing that it should be considered by the Water Court. He claimed that the Court's order deprived water right holders of their property without due process of law and that the Court failed to consider relevant evidence in making its finding of fact.

Haynes denied the request for reconsideration and answered Mack in a lengthy, point by point order defending his Court's jurisdiction and the validity of the 1978 Amended Decree. While the Water Court may have jurisdiction over the adjudication of water rights, the District Court and the 1978 Amended Decree do not adjudicate any rights but only govern the distribution of rights already allocated. No one's right to due process was violated, Haynes claimed, because the Court has no duty to consult with water users when it oversees the distribution of decreed rights. In this case the Court did decide to hold a hearing and Mack, as well as other affected users, was notified and did have a chance to express his own claims.

Mack has appealed Haynes' ruling to the Montana Supreme Court. The Clerk of the Supreme Court's office said on Monday that two opening briefs had been received as well as a motion to dismiss, but no ruling had yet been made in the case.

Hamilton council considers budget matters

By Michael Howell

Due to timing requirements in state law, the Hamilton City Council held a few public hearings for the second time on Tuesday evening. One was to take public comment on any part of the special assessment of 20 mills to defray the cost of maintenance in the Street Maintenance District for fiscal year 2005. The levy was split into 10 mills for street maintenance and 10 mills for sidewalk maintenance.The second public hearing was to take public comment concerning the proposed exemption of a property tax mill levy of approximately 2 mills for premium contributions for employee group benefits from the property tax limitation laws. Both hearings drew little public comment and the assessment and exemption were approved at the regular Council meeting held afterwards.

A public hearing was also held to take public comment on any part of the approximately $6.3 million final budget for fiscal year 2005 with an estimated tax levy of about 131.32 mills. City Finance Officer Colleen Miller explained that the budget included $6,855,957 in expenses and $6,048,169 in revenues.

Although both Mayor Joe Petrusaitis and the Finance Officer favored a 129.32 mill levy, the maximum allowable by state law, along with a 2 mill permissive medical levy for a total of 131.32 mills, the finance committee, led by Council President Bob Scott, recommended a budget equal to last year's budget of 125.42 mills. Miller commented that the lower budget would leave the City with a shortage of funds and did not account for the state minimum requirement of maintaining a Fire Disability Fund at .21 percent of the market value of property. She argued that the extra mills allowed by law should be used to meet the shortfall.

Both the proposed budgets were on the agenda for consideration at the Council meeting but, after some acrimonious exchanges between some council members and the administration, neither budget was voted on and a motion was finally made and passed to refer the matter to a work session involving the whole council and staff to be held next Monday. The City has until September 15 to adopt a budget, according to state law.

Miller also addressed the question of delinquent taxes. She stated that delinquent taxes on real property in the City currently totals $116,279, involving 75 parcels of land. Only seven of those parcels are delinquent by three years or more. She said that delinquent personal property taxes on 79 parcels total $39,248 while delinquent taxes on 41 mobile homes total $6,169.

The Council also approved a motion to back bill Rocky Mountain Laboratory for about $867,000 based on the notion that the lab has a 12-inch service line but has been billed for a smaller line. The motion was amended to include verification by the Public Works Department that it is actually a 12-inch line. This will probably be verified by digging a hole and examining the line.

The Council also approved adjusting the billing for water services to the Reynolds property. An existing 2-inch line is going to be billed as a three-quarter inch line based upon actual use. The building originally housed a laundromat that used the 2-inch line. Now it only services two bathrooms in a business. If the use increases for two months in a row, however, the billing will revert to that for a 2-inch line.

The Council also approved two work orders for Professional Consultants, Inc., one for Highway 93 North water and sewer main installation and another for Highway 93 North curbs, gutters and sidewalks on the west side.

The agenda included a discussion of the lack of response on the part of Gasvoda Construction regarding the Department of Environmental Quality's request to exhume the unauthorized and illegal land fills located on school property. It was disclosed that Gasvoda was going to meet with DEQ representatives at the site on September 9. No action was taken.

No action was taken on the agenda item that drew the most public comment at the meeting. That was a proposal to file a Friend of the Court Brief on behalf of the City regarding impacts and mitigation resulting from the expansion project at Rocky Mountain Laboratories.

Friends of the Bitterroot, Coalition for a Safe Lab and Women's Voices for the Earth have filed suit against the National Institutes of Health, challenging the decision to build the Integrated Research Facility at Rocky Mountain Lab. The facility will house a Bio-safety Level 4 lab to study some of the world's most deadly pathogens. The groups argue that the NIH did not meet National Environmental Policy Act requirements in its decision process and that the Final Environmental Impact Statement does not contain an honest evaluation of alternatives to building the lab in Hamilton and does not fully disclose the impacts that will occur.

Councilman Robert Sutherland, on the City's RML Committee, said that impacts of the construction and operation of the new lab facility on the infrastructure of the City were not addressed in the FEIS. Following the release of the FEIS and the Record of Decision, the City's Public Works administrator did do an assessment of the impacts of construction on City streets and determined that they would be substantial, requiring millions of dollars in road repair and reconstruction alone.

"This information is not contained in the FEIS," said Sutherland, "and would necessarily lead to different conclusions than those in the FEIS."

Sutherland lamented, however, that there was not sufficient time for the City to file its own brief in the case so he did not recommend a motion to do so.

Eight of the 29 members of the public who commented spoke in favor of lab expansion and against filing a Friend of the Court Brief. The majority expressed concerns about the project or, at the least, concerns that not enough information had been developed to make an appropriate decision.

Combined Idaho-Montana "Lost Trail State Park" proposed

A call was issued Friday, September 4 for the establishment of a combined Idaho-Montana State Park at the location where the Lewis and Clark Expedition crossed the rugged Bitterroot Mountains between Idaho and Montana and encamped in a swirling blizzards near the top of the dividing ridge between the two states on the night of September 3, 1805, about a mile to the west of the place known as Lost Trail Pass.

The Expedition's exact route and campsite in this area have been a subject of mystery and speculation for the entire 200 years since their harrowing trek up and over this rugged part of the Bitterroot Mountains, in a horrendous blizzard, on their way westward to the Pacific Ocean in September of 1805.

The request for establishment of a combined Idaho-Montana "Lost Trail State Park" before the outset of the bicentennial celebration of the Lewis and Clark Expedition next year was made during a presentation Friday evening at the Lost Trail Inn near Sula by Ted C. Hall of Missoula, author of a recently-released book titled "The Trail Between The Rivers" and Dale A. Burk of Stevensville, publisher of Hall's book and author of a number of books regarding the Expedition. This event occurred exactly 199 years to the day from when the Lewis and Clark Expedition was in the area involved.

Author Hall, whose new book "The Trail Between The Rivers" chronicles in map and text form the 407-mile land route of the Expedition's land travels from the headwaters of the Missouri River in Montana to the headwaters of the Columbia River in Idaho, said he believes that the creation of the Idaho-Montana Lost Trail State Park would serve not only to commemorate this significant part of the lore and mystery surrounding the Expedition's travels in this area but also enable both states to share in recognition of the "mystery and until-now unknown dimension of exactly where the 'Lost Trail' campsite was."

Hall believes that he and his "ground-truthing" co-author, David Brabec, have located, from meticulous study of the journals as well as comparing Clark's map and journal coordinates with contemporary U.S. Geological Survey maps, not only the route of the rugged climb the Corps of Discovery made up the steep ridges and rocky cliffs at the headwaters of the North Fork of the Salmon River to their encampment site but also their descending march the next day into Montana down a steep, heavily timbered ridge into the Camp Creek drainage in what is now Montana. Since his book came out, Hall has been making power point presentations on the "ground-truthing" of the Expedition's routes, including that of the heritage of the "Lost Trail" legends and mystery.

"The two states, Idaho and Montana, share the heritage of this heretofore mysterious element of the Expedition's journey and the states have before them an opportunity to designate the area involved as a combined state park and make it a 'must-see' element of the bicentennial celebration," Hall said. "All the land involved is public land and while the country is still rugged and pristine, it is easily reachable by foot trail from existing roads and highways."

Hall said he experienced a "mind-numbing sensation" when he and Brabec realized that they had, to within 50 yards, determined from the journals and Clark's maps the site of that Sept. 3, 1805, campsite as being at the place they were standing at the headwaters of Camp Creek, and was overtaken with the notion that the entire area involved in this particular episode in the journeys of the Expedition should be commemorated as a park or some similar historically protective designation.

"Every member of the Corps of Discovery was cold, wet, hungry to the point of starving, bedraggled and exhausted from fighting the unseasonal winter storm and carrying their gear up the overwhelmingly rugged mountainous terrain, and while they weren't lost ­ they knew they were on the dividing ridge between these two headwaters streams ­ they certainly were off any established trail and anxious to complete their journey over these rugged mountains," Burk said. "What they couldn't have realized was that as a result of this most-harrowing part of their trip, subsequent generations of Americans would see this part of their experience with uncertainty, mystery and undocumented 'lore' in the face of the misleading 'lost-trail' legend."

In making their suggestion for establishing of the Idaho-Montana "Lost Trail State Park" Hall and Burk have proposed that a number of opportunities exist to make the area involved readily accessible to people would might like to make day-hikes on either side of the pass - up the ascending ridge in Idaho or down the descending ridge from the campsite out onto Saddle Mountain and then down the long ridge to Camp Creek.

They suggested that, with the cooperation of the U.S. Forest Service, the Lewis and Clark Commission, and others in both states connected to the Bicentennial Celebration, the combined state park should be fairly easy to establish and that with Forest Service oversight, in place programs like the Trapper Creek Job Corps Center programs could be utilized, as part of their training efforts, to build and maintain the trails involved.

Hall and Burk are scheduled to meet Sept. 14 in Missoula with the board of Glacier Country of the Regional Tourism Committee to outline their proposal. They also will be presenting their proposal to several chapters of the Lewis and Clark Trail Heritage Foundation as well as the Western Montana Lewis and Clark Commission at its quarterly meeting in September in an effort to build support for the proposal.