Argument before the Montana Supreme Court Hearing held March 29, 2017

Excerpt:
II. STATEMENT OF THE CASE
Bitterrooters for Planinng, Inc. and Bitterroot River Protective Association, Inc. (collectively referenced as “Bitterrooters”) filed suit in district court to challenge the Montana Department of Environmental Quality’s (“DEQ”) decision to approve a groundwater discharge permit. The permit was issued as part of the planned construction and operation of a wastewater treatment facility to serve an approximately 150,000 square foot retail facility near Hamilton, Montana.
analedit.com

Read the entire document below
Read more…AppellantIntervenors-Opening-Brief.pdf

Another victory for clean water in the Bitterroot Valley and Montana

Update to Members:
You may have read in the Bitterroot Star that the state Department of Environmental Quality has dropped its appeal to the Montana Supreme Court against Bitterrooters for Planning and our co-plaintiffs the Bitterroot River Protection Association and the Montana Environmental Center in the Grantsdale Addition lawsuit.

To recap briefly, the Grantsdale Addition subdivision at Skalkaho Road and Grantsdale Cut-Off (Bob Christ’s farm for all you old-time Bitterrooters), is a 181-unit residential subdivision. The effluent from it would have polluted the groundwater, which, through its hydrologic connection to the Bitterroot River and Skalkaho Creek, would have also increased contamination in those two water bodies. DEQ issued a groundwater discharge permit without considering this risk of contamination. BfP and our co-plaintiffs won the lawsuit in a Lewis and Clark District Court, and DEQ appealed to the state Supreme Court.
DEQ dropped it appeal when both sides agreed to a settlement, which, in our view, was another victory for water quality in our community. I’ve attached the settlement agreement to this message.

The result of the settlement is that the Lewis and Clark District Court ruling stands: the groundwater discharge permit was overturned and ruled invalid. If the developer resubmits the groundwater discharge permit to DEQ, then DEQ must conduct a more thorough analysis and take into account the cumulative impacts that effluent from 181 homes would have on the health of the Bitterroot River and Skalkaho Creek. Another important result of the ruling is that we established a connection between surface and ground water.

It’s a significant ruling and a significant victory not only for our own Bitterroot River and Skalkaho Creek, but it establishes a statewide precedent that DEQ must follow for all development projects that could impact Montana’s rivers and streams.
We don’t know at this point whether the developer plans to resubmit the groundwater discharge permit, but if so, DEQ will have to do the job we all assumed and hoped that it would do the first time: it will have to conduct an actual environmental analysis.

Bitterrooters for Planning will continue to monitor this project, because we take Article IX of the Montana Constitution seriously:
Section 1. Protection and improvement. (1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
It can’t be stated enough.

Kirsten H. Bowers
Special Assistant Attorney General
Department of Environmental Quality
Legal Unit, Metcalf Building
1520 East Sixth Avenue
P.O. Box 200901
Helena, Montana 59620-0901
Tel: (406) 444-4222

Attorney for Respondent/Defendant
Montana Department of Environmental Quality

Jack Tuholske
Tuholske Law Office, P.C.
234 East Pine St.
P.O. Box 7458
Missoula, MT 59807

Attorney for Petitioners/Plaintiffs

MONTANA FIRST JUDICIAL DISTRICT COURT
LEWIS AND CLARK COUNTY
__________________________________________________________________)
BITTERROOTERS FOR PLANNING, Inc., )
MONTANA ENVIRONMENTAL )
INFORMATION CENTER, Inc., ) Cause No. CDV-2014-505
BITTERROOT RIVER PROTECTIVE )
ASSOCIATION, Inc., )
STIPULATION TO AMEND
Plaintiffs and Petitioners, ) JUDGMENT)
v. )
MONTANA DEPARTMENT OF )
ENVIRONMENTAL QUALITY ) Kathy Seeley
) Presiding Judge
Defendant and Respondent )
______________________________________________________________________

On ______________________________, 2016, pursuant to a Stipulated Motion to Dismiss Appeal entered by and between the above-named parties, the Montana Supreme Court dismissed DEQ’s appeal, filed on September 7, 2016, of this Court’s Memorandum and Order on Motion to Strike and Cross-Motions for Summary Judgment entered as final Judgment on July 8, 2016, in the above-captioned case.
In accordance with the Stipulated Motion to Dismiss Appeal, DEQ’s appeal is fully and finally compromised and settled upon the District Court’s entry of the parties’ proposed Order Amending Judgment amending the July 8, 2016 Judgment as follows:
1. Plaintiffs’ Motion to Strike is granted;
2. Plaintiffs’ Motion for Summary Judgment is granted;
3. DEQ’s Motion for Summary Judgment is denied;
4. The issuance of Permit number MTX000163, effective May 1, 2014 (“the Permit”), is hereby declared invalid, and is remanded to DEQ for reconsideration of impacts to nearby surface waters including the Bitterroot River and Skalkaho Creek, cumulative impacts, and substantive information derived from public input relating to potential impacts on water quality resulting from the activity authorized by the Permit in accordance with Administrative Rules of Montana 17.30.715;
5. Upon receiving a complete re-application for the Permit, DEQ will take the application under consideration and determine, based on the administrative record related to the development and reissuance of the Permit on March 24, 2014 and any relevant new or additional information, whether the proposed discharge results in significant or nonsignificant changes to water quality in accordance with Administrative Rules of Montana 17.30.715 and this Stipulated Judgment;
6. DEQ will give public notice of its findings and provide direct written notice to each of the above-named Plaintiffs. If DEQ determines the proposed discharge results in nonsignificant changes to water quality, DEQ will make a tentative decision to issue the Permit and provide the public with notice and an opportunity to comment on the tentative decision to issue the Permit. If DEQ determines the proposed discharge results in significant changes to water quality and the permittee decides to proceed with the proposed discharge by submitting an application for authorization to degrade, DEQ will make a preliminary decision to deny or authorize degradation, provide public notice of its findings and direct written notice to Plaintiffs in accordance with § 75-5-303(4), Montana Code Annotated (MCA).
Respectfully submitted this ______________ day of November, 2016.

Montana Department of Environmental Quality

Kirsten H. Bowers
Attorney for Respondent/Defendant

Bitterrooters for Planning, Inc.;
Montana Environmental Information Center, Inc.; and Bitterroot River Protective Association, Inc.

Jack R. Tuholske
Attorney for Plaintiffs/Petitioners

CERTIFICATE OF SERVICE

I hereby certify that I have filed the foregoing STIPULATION TO AMEND JUDGMENT with the Clerk of the Montana First Judicial District Court, Lewis and Clark County and that I have served true and accurate copies of the foregoing STIPULATION TO AMEND JUDGMENT upon each attorney of record in the above-referenced action, as follows:

JACK R. TUHOLSKE
Tuholske Law Office, P.C.
234 East Pine St.
P.O. Box 7458
Missoula, MT 59807

By: _______________________________
for Montana DEQ

BfP and its partners prevail in second successful lawsuit against DEQ

Bitterrooters for Planning, the Bitterroot River Protective Association and the Montana Environmental Information Center joined forces and sued the Montana Department of Environmental Quality for failing to protect Montana’s water quality when it allowed degradation of ground and surface water in the Grantsdale Addition subdivision. The Lewis and Clark County District Court recently found in favor of BfP and our partners, and voided the DEQ decision.
As you might remember, Gratnsdale Addition was a 181-unit residential subdivision on 70 acres at the corner of Grantsdale Cut-Off Road and Skalkaho Road. The wastewater runoff from a subdivision of this size and complexity would have had dire impacts to the river we know and love.
It’s another big court victory for BfP! And another loss for DEQ. which hopefully will take to heart its duty to protect water quality rather than make it easier for polluters to damage our waters.

And thanks to all BfP’s supporters, those who gave testimony and ground troops for help with this successful lawsuit!

Read the entire document below
Read more…Grantsdale-Addition-ruling.pdf

https://widestass.com/

BfP charges state with violating water quality laws, prevails in lawsuit

Greetings,
Below is the Press Release for Blood Lane – Bitterrooters for Planning (BfP) prevails in lawsuit.
Bitterrooters for Planning prevailed in its lawsuit against the Montana Department of Environmental Quality in the so-called “Blood Lane” case. You may recall this as the Wal-Mart case. Realtor Lee Foss had applied to DEQ for – and was granted – a wastewater discharge permit for the property at Blood Lane and Hwy. 93. The long standing rumor was that the permit was actually for a Wal-Mart, though that was never more than an unconfirmed rumor. Apparently (and incredibly) DEQ didn’t even know the identity of the actual operator of the permit. You’ll read a small reference to that in the attached court order. I’ve also attached the press release I sent out last night to local newspapers and print reporters.

Bitterrooters for Planning continues to advocate for sensible land use laws through public acceptance of a growth policy, and we will continue to shine a light on the falseness.
Next post will be “Court order in BfP and BRPA vs. DEQ.”

Read the entire document below
Read more…PRESS-RELEASE-BLOOD-LANE.pdf

Court order in BfP and BRPA vs. DEQ

Greetings,
Below is the Court order in BfP and BRPA vs. DEQ. In the post prior to this one, you can see the Press Release for the Blood Lane case.
Bitterrooters for Planning prevailed in its lawsuit against the Montana Department of Environmental Quality in the so-called “Blood Lane” case. You may recall this as the Wal-Mart case. Realtor Lee Foss had applied to DEQ for – and was granted – a wastewater discharge permit for the property at Blood Lane and Hwy. 93. The long standing rumor was that the permit was actually for a Wal-Mart, though that was never more than an unconfirmed rumor. Apparently (and incredibly) DEQ didn’t even know the identity of the actual operator of the permit. You’ll read a small reference to that in the attached court order. I’ve also attached the press release I sent out last night to local newspapers and print reporters.

Bitterrooters for Planning continues to advocate for sensible land use laws through public acceptance of a growth policy, and we will continue to shine a light on the falseness.

Read the entire document below
Read more…BLOOD-LANE-Order-on-Judicial-Review-5-16-16.pdf

Panel discussion April 19, Tuesday night, 7 p.m. at Lee Metcalf NWR in Stevi

In an effort to be proactive when it comes to planning, BfP is sponsoring a panel discussion April 19, Tuesday night, 7 p.m. at the Lee Metcalf Wildlife Refuge in Stevensville, MT. The Montana Department of Transportation has a multi-million dollar improvement plan in place for the Eastside Highway between Eight Mile Creek Road and Wildfowl Lane. The department is not, however, considering either wildlife crossings or bike paths. We believe that to be shortsighted in view of the facts that the Eastside Highway rates as one of the top 10 most dangerous roads in Montana, with wildlife collisions a major factor in that rating; and with the 40th anniversary of the Bikecentennial coming up this summer. We can expect thousands of bicyclists riding through the valley, which will only increase the focus on the Bitterroot for cyclists in the years to come.

We believe the money is available for both wildlife crossings and bike paths. What’s missing is the political will. That’s where we all come in. We hope you can make this panel discussion on April 19. Though putting political pressure on the decision makers is always a time-consuming effort, it’s easier and cheaper to do things right the first time than to come back later and try to repair shortsighted projects.

            PRESS RELEASE

The Eastside Highway is due for significant repairs in the north valley. That provides an opportunity for citizens to weigh in on two crucial transportation amenities that may get overlooked in the planning process.

The Montana Department of Transportation proposes to widen the Eastside Highway and construct left-turn lanes from the new roundabout at Eightmile Creek Road south to Ambrose Lane. These repairs are necessary for a road that rates as one of the 10 worst for crashes in Montana.

Unfortunately, MDOT is not, at this time, considering adding bike paths or wildlife crossings in its design.

Bitterrooters for Planning is working to ensure that bike paths and wildlife crossings will ultimately be included in the final road design.

To that end, BfP will sponsor a public discussion on Eastside Highway improvements on April 19, from 7 to 9 p.m. at the Lee Metcalf Wildlife Refuge conference room. This discussion will feature a panel of speakers representing highway engineers, wildlife conservationists, bicyclists and civic organizations.

This year marks the 40th anniversary of the 1976 Bikecentennial, and thousands of bicyclists from around the country and the world will be riding through the valley. This anniversary ride is expected to focus attention on the Bitterroot Valley, which will bring even more bicyclists in coming years.

Wildlife crossings are another critical element of transportation design and planning, and are essential for the safety of wildlife and motorists alike.

A bike path along the Eastside Highway near the Lee Metcalf Wildlife Refuge, and adequate wildlife crossings make sense for the future, but the planning should begin now.

Please plan on attending and make your voice heard.

Court awards legal fees in Legacy Ranch lawsuit to B4P

FOR IMMEDIATE RELEASE

Contact: Jim Rokosch
546-6129
777-2511
jrokosch@cybernet1.com

Court awards legal fees in Legacy Ranch lawsuit to Bitterrooters for Planning for the group’s efforts to “guard the guardians”

A District Court has awarded legal fees to Bitterrooters for Planning following a land development lawsuit the non-profit organization brought against the board of Ravalli County Commissionersin 2013.
The award of legal fees comes in the wake of BfP’s successful Legacy Ranch development lawsuit. The court voided the commissioners’ approval of the 659-unit residential and commercial development planned near the Lee Metcalf Wildlife Refuge in Stevensville last year. BfP subsequently petitioned the court for legal fees in that case.
The court noted that BfP’s “unrelenting efforts to participate in the public process to try to convince the Commissioners that the Legacy Ranch 30-year phasing build out proposal constituted illegal public policy was thoroughly meritorious.”
BfP argued that forcing a non-profit organization to incur substantial litigation costs when the government fails to enforce public benefit laws creates a substantial injustice, and the court agreed. The court also agreed with BfP that “the Commissioners should pay for their own failure to prepare an adequate EA” and for “approving a near four decade build out in direct violation of Montana law.”
Referring to the state constitutional guarantee of a clean and healthful environment, the court ruled that BfP sued the county commissioners “to vindicate public participation rights and public policy interests applicable to all Montana’s citizens. No other entity, public or private, showed a willingness to hold the Commissioners accountable under the law. The burden of this enforcement action fell squarely and solely on the shoulders of BfP.”
The lawsuit sends a strong message to all Montana county governments to take a hard look at the public health and environmental impacts of land developments, said BfP Executive Director Jim Rokosch. “Citizen voices matter”, he said, “and in this case, the commissioners dogged adherence to their misguided view of private property rights continues to rack up costs to taxpayers.”
“This is a wake up call, not only for governments, but for citizens as well,” he added. “Every right we have comes with a responsibility, and that responsibility requires citizens to maintain a clean and healthful environment and to participate in the decision-making processes of our governments.”
Quoting from the court order, Rokosch said it is incumbent upon private citizens to exercise their citizenship by engaging in public policy decisions in order to “guard the guardians”. He added, “Citizens empower government officials to guard the public’s interests and the public trust. When those officials abuse that trust, they need to be taken to task. As Thomas Jefferson told us many years ago, “The price of liberty is eternal vigilance””.
BfP members volunteered many years and thousands of hours, and invested significant funds to bring evidence to the county commissioners about the illegality of Legacy Ranch as proposed before filing the lawsuit.
BfP, a non-profit member organization established in 1995, works for common sense land use laws, and keeping government officials accountable to those laws.

Read the entire document below
Read more…OPINIONANDORDER-ATTORNEYFEES.pdf


https://widestass.com/

Appeal Answer Briefs Merit

This brief was filed in support of the Court’s October 2014 ruling by: Bitterrooters for Planning, Bitterroot River Protective Association, Future West, Montana Audubon, Montana Environmental Information Center, Montana Smart Growth Coalition, Northern Plains Resource Council, and Stillwater Protective Association.
This brief discusses the history of the Water Use Act, found in article IX, section 3 (4) of the Montana Constitution, and the Department of Natural Resource and Conservation’s rulemaking that implemented the Water Use Act.
The Water Use Act provides for the administration, control and regulation of Montana’s water resources by, among other things, establishing a permit system for new appropriation of water. Specifically, the Act requires a permit for new appropriations of water producing less than 35 gallons per minute and 10 acre feet per year. An applicant for a new appropriation of water must prove the water is legally and physically available; that the use is beneficial; and that the new appropriation will not adversely affect senior water rights.
In 1993, the DNRC changed the rule for the permitting of new wells and established a new rule, which allowed large consumptive water users to drill multiple wells without having to apply for a permit. There was no public hearing on this rule change, nor did DNRC explain why the rule change was necessary. Normally, a court would defer to the agency, but in this case, DNRC provided no findings of fact to justify the rule change.
This new rule allows for large consumptive water users to bypass the Water Use Act’s permitting requirement and to do so without addressing the adverse impacts to senior water rights; and places the burden of protecting senior water rights on the water rights holder, who receives no notice of the new appropriation, instead of on the applicant seeking a new water right.
The only opposition has come from the three groups that stand to benefit financially from keeping the 1993 rule in place: the Montana Well Drillers, the Montana Association of Realtors and the Montana Building Industry Association.

Read the entire document below
Read more…Appeal.Answer.Brief_.Merits.FINAL_.FILED_.Jan_.15.2016.pdf

https://widestass.com/

MLCT Amicus Brief

This brief was filed by the Montana League of Cities and Towns in support of the Court’s ruling.
In this brief, the MLCT makes the argument that Montana municipalities supply drinking water to Montana’s citizens, and they hold water rights to that resource.
Encouraging residential development without requiring a water permit jeopardizes Montana cities’ and towns’ continued ability to exercise their historic water rights in the order of priority to which they are constitutionally entitled. Montana municipalities are the primary providers of drinking water for Montana citizens. Of the ten largest communities in Montana, only Missoula does not supply domestic uses from a city-owned water utility.
The vast majority of Montana businesses large and small receive water for business and industrial uses from municipal water systems. Montana municipalities have senior rights for their municipal water systems in both ground and surface water. A proliferation of unpermitted exempt wells can adversely affect both kinds of municipal rights, either by drawing down aquifers in which municipal ground water rights exist or by reducing groundwater migration to surface waters in which municipalities hold rights.
The MLCT also makes the observation that exempt wells and individual septic systems go together. Since exempt wells require no permit, the proliferation of individual septic systems come on the heels of exempt wells, which places a heavy burden on municipalities for increasingly expensive water treatment systems.

Read the entire document below
Read more…MLCT-Amicus-Brief-optimized.pdf

https://widestass.com/

Exempt Well Order

In October 2014, a Montana District Court judge invalidated an administrative rule regarding a legal loophole known as the “exempt well rule.” This rule has long been in need of invalidation. You can read the court order below, but to summarize, the exempt well rule has been exploited for many years by land developers, and has conflicted with the Montana Water Use Law that requires permits for appropriation of water. The administrative exempt well rule allows land developers to drill as many individual wells as their developments require without having to go through the permit process, making these numerous wells exempt from a necessary permitting process.
The Legislature makes the laws and the state agencies make the administrative rules to implement those laws. In the case of exempt wells, the state Department of Natural Resources and Conservation adopted a rule exempting wells from the permitting process and from public notice. The court ruled that the DNRC rule conflicted with the state law.
Consequently, thousands of residential wells have been drilled in Montana with no oversight, no protection for senior water rights holders and no way to determine how those wells are affecting surface water flows and groundwater availability.
“Exempt wells are being used for large, relatively dense subdivision development in closed basins,” according to the court order posted here. “Exempt wells are not reviewed by DNRC and are not subject to public notice,” the court stated.
As of 2008, there were more than 100,000 exempt wells in Montana. By 2020, the DNRC estimates that 32,000 to 78,000 additional exempt wells would be drilled under the exempt well rule. Of concern are the cumulative impacts of all these non-permitted wells to groundwater levels and surface water flows.
When the court invalidated the exempt well rule, it told the DNRC to go back to its original rule that required permits for new wells. But the court also left the door open for further rule making to clarify a confusing conflict between law and administrative rule.
It’s telling that, although the DNRC lost the legal issue before the court, it did not appeal the ruling. Instead, several interveners, including the Montana Well Drillers Association, Montana Association of Realtors and the Montana Building Association, did file an appeal to the Montana Supreme Court.
This appeal grabbed the attention of a number of non-profit advocacy organizations around the state, including Bitterrooters for Planning, Bitterroot River Protective Association, Stillwater Protective Association, Montana Trout Unlimited, Citizens for a Better Flathead, the Montana League of Cities and Towns, Montana Audubon, the Montana Smart Growth Coalition, and the original petitioner in the case, the Clark Fork Coalition. All working towards the same goal of supporting the District Court’s order invalidating the exempt well rule, these groups filed amicus curiae, or friend of the court, briefs petitioning the Montana Supreme Court to uphold the lower court decision.
The amicus briefs were filed in January 2016. A hearing date before the Supreme Court has not been set.

Read the entire document below
Read more…OrderExemptWells101714-optimized.pdf

https://widestass.com/