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

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

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

Public speaking event -Fire ecologist George Wuerthner to discuss wildfire behavior and how fires threaten homes.

Bitterrooters for Planning will host photographer, writer and ecologist George Wuerthner for a discussion of wildfire ecology and management policy at 7 p.m. Oct. 26 at the Bedfod Building in Hamilton. – PLEASE SHARE!
Wuerthner, the ecological projects director at Foundation for Deep Ecology, has authored over two dozen books on wildfires, natural history and the environment. He has visited more than 380 wilderness areas, nearly 200 national parks and every national forest west of the Mississippi River.
Wuerthner will discuss wildfire management and how forest fires threaten homes in the wildland urban interface, including:
· Whether thinning and prescribed burns are really effective means of controlling wildfires
· Extreme weather conditions and how they foster intense wildfires
· How houses threatened by wildfire put out more heat than forest fires
· How to best protect your home from wildfire by reducing the flammability of the area immediately surrounding the structure – not by logging the forest
Following the smoky summer in the Bitterroot Valley, this discussion will be a timely exploration of wildfire’s potential impact on forest ecosystems, wildlife, air quality, recreational opportunities in valuable wild areas and your home.
The event is free and open to the public. The Bedford Building is located at 223 S. 2nd St. in Hamilton.

B4P Update as of September 17, 2015

Recently, a BfP member asked several questions regarding our three lawsuits: Legacy Ranch which, as you know, we won, and the two still pending: Grantsdale Addition and Blood Lane (Wal-Mart). I thought I’d send out the answers to the entire membership, post on Facebook and the website.

Q: When will there be a decision regarding the B4P request to have the (Grantsdale Addition) permit voided (as noted in the August 15 posting “Update on Grantsdale groundwater discharge permit”).

A: Oral arguments are scheduled for Sept. 24 in Helena. The case was filed in Lewis and Clark County because the defendant in the case, Department of Environmental Quality, is based there. Oral arguments are scheduled for 2 p.m. Several board members will likely be there, and members, of course, are invited and encouraged to attend.

Q: What is the status of the Blood Lane issue?  Has the court process begun?

Oral arguments are scheduled for 9 a.m. on Nov. 23, again in Helena, for the same reason as above.

Q: And is it truly the end of Legacy Ranch since the July 31 court ruling that nullified county approval of it?  And will the county have to pay B4P’s court costs since they lost?

A: The county commission has met twice since the court decision to discuss the possibility of an appeal, but they’ve made no decision. The developers, Sunnyside Orchards, LLC, were also defendants in the case, but they have not filed an appeal. I believe this ends the case. Of course, if we hear anything different you’ll know right away.

The question regarding fees is more complicated. Court fees are not automatically awarded to the prevailing party in a civil case. The prevailing party’s attorney must petition the court for fees, but can do so only under certain circumstances. Here is the pertinent sentence from the petition: “An award of fees is appropriate when litigants serve the public interest by holding government bodies accountable to statutes that vindicate important public rights.”

Our attorney filed a petition for fees in August, but no court hearing date has been scheduled as of yet. I’ve attached the petition to this email, so you can read it for yourself. When we know more, we’ll let the membership know.

Thank you for your questions.
Carlotta Grandstaff for BfP
Read more…Grantsdale-Pls-Response-Brief-final.pdf

Update on Grantsdale groundwater discharge permit

This is the second brief filed by B4P counsel in our lawsuit challenging DEQ’s groundwater discharge permit for the Grantsdale Additions subdivision.
Excerpt…
IV. CONCLUSION
Bitterrooters ask that the Court determine DEQ acted unlawfully by failing to follow the statute and regulations in granting an exemption to non-degradation review. DEQ’s decision was arbitrary and capricious in light of the voluminous public comments raising concerns about nutrient pollution that DEQ failed to address in its decision-making process. Failing to complete a non-degradation analysis that includes the consideration of cumulative impacts from increased groundwater discharge in the Bitterroot Basin. The Court should find the DEQ’s approval of the Grantsdale groundwater discharge permit both arbitrary and capricious, and violation of § 75-5-
301(5), MCA, and Admin. R. M. 17.30.715(2). Bitterrooters request the Court declare the Permit void and remand the matter to DEQ for consideration of impacts to surface waters as required by statute cumulative effects and degradation of the Bitterroot River.
Read the entire document below
Read more…Grantsdale-Pls-Response-Brief-final.pdf

Bitterrooters for Planning wins major lawsuit against Ravalli County in Legacy Ranch subdivision case

Bitterrooters for Planning wins major lawsuit against Ravalli Coun

Local non-profit advocacy group Bitterrooters for Planning won a significant legal victory with a July 31 court ruling that nullified county approval of the largest residential subdivision in Ravalli County’s history.
B4P challenged Ravalli County’s August 2014 approval of the 639-home Legacy Ranch subdivision adjacent to the Lee Metcalf Wildlife Refuge in Stevensville.
Read more…. Read more…Legacy_Ranch_OPINIONANDORDER.pdf

Bitterrooters challenge MT_DEQ approval of groundwater discharge permit for Grantsdale Addition

Excerpt “This case presents important issues of first impression regarding DEQ’s obligation to protect surface waters from pollution generated by subdivision waste – water. DEQ violated the plain language of §75-5-301, MCA, by failing to assess the potential for surface water impacts even though the subdivision will discharge up to 60,000 gallons of sewage with high concentrations of nutrient pollution each day into the shallow, rapidly moving groundwater aquifer close to the Bitterroot River. DEQ failed to gather any site specific data about ground – surface water connectivity. DEQ then failed to respond to the voluminous evidence the public provided on hydrologic connectivity. Read more…. Read more…June 26 Grantsdale Addition briefing.pdf

Ravalli Co Commission meet 10 am Thurs Mar 12

The county commission meeting scheduled for Thursday March 12,  to consider public notice and participation policy is for the commission to consider adopting the changes requested by the Bitterroot Star in our settlement proposal over the Big Sky Development lawsuit.

It will be a meeting where the public can voice their opinion over that $675,000 settlement.

If the commissioners adopt them as proposed with no changes the Star’s lawsuit against the commission will be dismissed. It is very important for the public to attend.

Below is a note from B4P:

Greetings all, Please read the message above from Michael Howell. This meeting takes place at 10 a.m. on March 12. It’s imperative that we can get as many people to attend this as possible. To remind you: the previous commission met behind closed doors to cut a deal with the attorney representing Paul Wilson, a land developer who sued Ravalli County over a commission decision (the commission on which Jim Rokosch, Kathleen Driscoll and I sat) to reject his proposal to use the county road department to bring Eight Mile Creek Road up to legally-required standards. He pledged to buy the materials. The law required him to pay for both materials and work crew. We rejected his proposal, he sued and the judge remanded the decision back to the Foss-Stoltz-Burrows commission. The commission agreed to the Wilson proposal AND awarded him $675,000. The judge was shocked, the original county lawyers were shocked. The Bitterroot Star sued the county over a decision that was made under shady circumstances. Before the lawsuit could progress very far, the county paid the lion’s share of the $675,000. It’s on your most recent tax bill. I don’t know the specifics of the Star proposal, but I do have faith in the Howells. They’ve been on this smoky-room decision since the beginning and I urge your attendance and support. I’ve asked Michael Howell for some specifics to pass on to you. I’m also expecting some information from Glenda Wiles, admin. asst. for the commission, on Monday.