The County Commissioners heard last week from several people living along Airport Road northeast of Stevensville with complaints about what they believe is an illegal subdivision created in the area by Victor resident Terry Nelson. They accuse Nelson of evading the county's subdivision regulations through the abuse of the Family Transfer exemption from subdivision review.

State law allows the separation of a piece of land to be transferred to a family member without going through the subdivision review process. The property is simply surveyed off and a record of the transfer to a family member is then recorded without any public review of the potential effects under the subdivision review process. Deputy County Attorney Alex Beal said that the original intent of the law was to allow large farm and ranch owners, especially in eastern Montana, to transfer a piece of land to a family member who may then get financing to build a home while remaining on the land to help run the farm. He said it has been abused, especially in fast growing parts of western Montana, as a way to avoid subdivision review. The land is separated off by transfer to a family member but then sold to a third party.

According to county officials, the previous owner of the 14 acres in question tried to subdivide the property in 1998 but the subdivision was denied. Then in 2004 Nelson bought the land and divided it into seven lots and transferred six of the lots to his wife, father, and four children. Neither Nelson or any of his family members ever lived on those lots, however, and in 2005 Nelson began selling them off. According to unofficial minutes of the meeting, he claims now that all seven of the lots have been sold.

Neighbors in the area, disturbed by the increased traffic and its effects on the road as well as the potential effects of the additional septics and wells, complained. The first complaint came in 2004, before the first lot was sold in February of 2005. The county's response was to write two letters to Nelson advising him of the complaints and the law. The neighbors expressed dissatisfaction with the county's response and failure to follow up with any action.

According to the minutes, Nelson denied that it was his intent to evade the subdivision regulations. He said that it was his original intent to live there after selling his home at the time, but that he changed his mind after finding another piece of property. He claims to have gotten county approval for all his transfers and the latest sales have also been approved and recorded by the county.

Commissioners Kathleen Driscoll and Carlotta Grandstaff expressed disbelief. Driscoll stated that she believed that Nelson knew exactly what he was doing. As a result, said commissioner Grandstaff, these people got a subdivision in their neighborhood with no chance to review and comment on the development.

The minutes state that Commissioner Greg Chilcott agreed that the situation was clear and that someone who understood the process has taken advantage of a loophole in the law. He said that Nelson was aware of the elasticity of the regulations and took advantage of it. He said the exemption process has been utilized statewide as an evasion process and no one can abuse it better than someone who works in that profession. He said that previous counsel was not confident that it would be a winner to go after the violation, however, that it was marginal to go after him and so the previous board chose not to do anything.

Beal said that the one year statute of limitations for criminal violation of the subdivision regulations had passed and that no criminal charges could be filed at this point.

Commission Chairman Jim Rokosch suggested that Beal look into possible civil action over the matter.

Driscoll said that the matter needed to be cleaned up. She said that there were no decision makers here in the past but some decisions needed to be made now. Grandstaff agreed and suggested a timeline be placed on the county attorney to look into filing a potential civil action over the matter. She said that the road situation really needed to be fixed.

Nelson offered to pay $5,000 for road improvements, but Grandstaff said that $5,000 would not fix the road.

In the end Grandstaff moved to direct Beal to investigate potential civil remedies to the issue looking at the impacts that the subdivision has had on the neighborhood. The motion was unanimously approved.

Partial fishing closures in effect on Bitterroot River

By Michael Howell

With tempaeratures hovering in the three-digit realm, Montana Department of Fish, Wildlife and Parks has instituted fishing restrictions on many rivers across the state to protect the wild fisheries.

A mandatory closure of fishing due to high water temperatures has been put into effect on almost half of the Bitterroot River. The restrictions prohibit fishing from 2 p.m. to midnight on a 44-mile stretch of the river from the Tucker Crossing Fishing Access Site near Victor to the confluence with the Clark Fork River, just west of Missoula.

The restrictions are put into place once water temperatures reach 73 degrees or more for at least three consecutive days. Temperatures on the lower Bitterroot River recently reached that mark for five consecutive days.

"When water temperatures increase and river flows drop, catching and handling fish adds an additional stress that they sometimes can't handle," says Pat Saffel, FWP Regional Fisheries Manager in Missoula. "Trout are affected by lower oxygen levels in the water and are more vulnerable to disease and predation under current water conditions."

Saffel encourages anglers to seek alternatives such as cooler parts of rivers, reservoirs, mountain lakes and tributary streams where temperatures are not as high.

The closure will remain in effect until water temperatures are at or below 70 degrees for three consecutive days and the likelihood of meeting criteria for angling restrictions again has diminished, typically in late August or early September for these sections of river.

Temperatures across the state have been setting records. According to the U.S. Weather Bureau statistics, July 16 marked the sixteenth consecutive day that Missoula high temperatures have been 90 degrees or greater, which is second only to the record of 18 consecutive days set in 1960. This also marks the fifth consecutive day that Missoula has reached 100 degrees or greater which ties the all-time record set in 1936. Missoula has also experienced seven days of 100 degrees or higher for a given year which breaks the all-time record of six days set in 1936. As a result, fishing closures are also in effect on a 137-mile stretch of the Clark Fork River from the mouth of Rock Creek near Clinton to the confluence with the Flathead River, approximately 10 miles southeast of Plains.

Some help may be on the way in the Bitterroot, though, as a release of water from Painted Rocks Reservoir will raise water levels in the river and perhaps decrease temperatures.

On Monday, Bitterroot Water Commissioner Al Pernichele, who tends the Painted Rocks Reservoir Dam, began releasing additional water from the reservoir. Water is collected behind the dam in springtime until the reservoir is filled to its 25,000-acre-feet capacity. After that, water is released from the reservoir in the same proportion as it enters from the streams feeding into it until low flows in the river are reached later in the summer. Then the accumulated water is released on a set schedule.

The current inflow and outflow from the reservoir is about 113 cubic feet per second (cfs), according to Larry Shock from the Department of Natural Resources and Conservation. On Monday Pernichele released an additional 50 cfs, raising the overall current release level to about 163 cfs. About two-fifths of the stored water is slated for use by irrigators. The other three-fifths remains in the river to augment stream flows for fish, according to Shock.

FWP prefers ideally to keep the flow of the river at Bell Crossing up to 450 cfs. On July 13, the flow at Bell Crossing was measured at 354 cfs. Under drought conditions the FWP target flow for Bell Crossing is 200 to 250 cfs. Future water releases will be dependent upon the demands for irrigation water and the condition of the flows at Bell Crossing.

Trout Unlimited member Marshall Bloom has asked that anyone who sees some egregious example of water abuse by irrigators or abuse by anglers and sportsmen of the fishing restrictions try and take a digital photograph and e-mail it to him at drtrout@mtbloom.net including specifics as to time, date and location, so that offenses may be publicized.

More information on drought restrictions and closures in Montana may be found on the FWP web site www.fwp.gov. Click on "Drought and Fire."

Lone Rock cook gets Silver Spoon Award

By Michael Howell

Patty Calkins, a cook at the Lone Rock School, received the Silver Spoon Award from the State School Nutrition Association. The award, a "lovely marble clock," according to Calkins, is given in recognition of school cooks who provide nutritious meals to the students as well as providing nutrition education. Calkins, who has worked at the school district for 25 years, was nominated for the award by Karen Stanford.

Calkins' next goal is to qualify for the Gold Standard Award for Schools given out by the USDA. This award is given out to school districts that serve nutritious meals consisting of whole grains, dark leafy vegetables, legumes and beans. Calkins is optimistic about her chances. She serves water, 100 percent juices, and milk with her meals. She serves whole grains at least three days per week and dark leafy vegetables 2 to 3 days per week, as well as orange veggies such as carrots and squash, all of which could qualify her for the award. Calkins also provides classroom education in nutrition which is also a requirement.

Open burning restrictions enacted in county

By Michael Howell

The time for open burning of vegetative debris in Ravalli County has passed. The Ravalli County Commissioners approved a prohibition on open burning in the county last Thursday due to the dry conditions. No open fires are allowed.

Anyone who ignites a forest fire, slash burn fire, land clearing fire, debris burning fire, or open fire is subject to a $500 fine and/or up to 6 months in jail, except in lands under the jurisdiction of the National Forest Service or the State, where their rules and regulations apply.

Campfires are allowed so long as they are within the confines of a licensed facility, a managed recreational site, or on private property. They are allowed for the purpose of cooking as long as the landowner manages the campfire in a prudent and reasonable manner.

Smoking is also prohibited except within an enclosed vehicle or building, a developed recreational site or while stopped within an area of at least 3 feet in diameter that is barren or cleared of all flammable materials.

On Friday, the commissioners amended the open burning ban to include a ban on the use of pyrotechnics (fireworks) as well.

County hires new director of DHES

By Michael Howell

As of June 18, the Ravalli County Department of Health and Environmental Science has a new director, Lea Jordan. Jordan worked in the same department about nine years ago and is stepping into somewhat familiar surroundings. Since that time, she has also worked for the Missoula Water Quality District in the combined city/county health department as well as working as a science teacher in the Hamilton and Corvallis School Districts.

Jordan is looking forward to the job.

She said that the department has spent too much time doing clean-up after the fact, but public support is leaning toward protection of the environment and controlling development to minimize the impact on natural resources.

"Ravalli County is facing some interesting issues," said Jordan. "My main goal is to help make the county more pro-active, rather than re-active, concerning issues of water and air quality."

Another of her goals is increased educational outreach. She said that in such a fast growing county with so many new residents coming in, educational outreach takes on added importance. People need to know how to care for septic systems, what to do in periods of bad air, how to deal with West Nile Virus, how to safely handle food, and dispose of hazardous waste.

Her department has a broad set of concerns that range from issuing septic permits, to participating in subdivision review. It will also be part of her job to address the air pollution problems facing the valley. The county has been designated a non-attainment area by the state for its failure to meet state and federal air pollution standards. She will be working on a plan to address the situation.

"In the future," she said, "we will probably be more involved with hazardous wastes and such things as fuel spills."

Jordan has a Bachelor of Science degree in biology from the University of Wyoming and a Master's degree in biology from the University of Nevada at Las Vegas. She also got her teaching certificate from Montana State University at Bozeman.

She worked for a private company on the Yucca Mountain project, where the federal government has proposed a nuclear materials repository. She worked on a rainforest restoration project in Puerto Rico, and on a global changes project funded by the Department of Energy designed to study the effects of carbon dioxide on plants.

She is married and has one child.

Court hears testimony in lawsuit over subdivision regs

By Michael Howell

Ravalli County District Court Judge Jeffrey Langton heard testimony Monday in the lawsuit filed by Bitterrooters for Planning against the county. The suit challenges the validity of the settlement agreement reached between the previous three-person county commission and eleven developers that sued the county in federal court over the subdivision regulations.

That settlement agreement was finalized by the previous commission on the day of the elections and allows the developments to proceed through subdivision review process under the rules in place at the time of their application and exempts them from the Interim Zoning Regulations that limit development to one dwelling per two acres.

Commissioner Greg Chilcott took the stand to answer questions about the settlement agreement as did three of the newly elected commissioners, Jim Rokosch, Kathleen Driscoll and Carlotta Grandstaff. Stewart Brandborg, President of Bitterrooters for Planning, and Phil Taylor, BFP member and author of the Interim Zoning Initiative, also testified.

BFP claims that the public was not given a meaningful chance to participate in the settlement decision because the text of the agreement was not made available for public review before the meeting. Taylor claims that a final copy of the settlement agreement has still not been produced.

Chilcott testified that the settlement was necessitated because, according to attorneys working for the county, the case was not winnable due to the county's failure to meet timelines set by statute to process the subdivision proposals. He also mentioned the fact that the county's insurance would not cover the cost if the case was lost, making it possibly a very expensive option to go to trial.

Current Commission Chairman Jim Rokosch said, under questioning, that he believed there was e-mail evidence suggesting that the settlement process was accelerated so that the three-person commission could make the decision before members of the newly expanded commission could take office and participate.

Taylor told the court that Bitterrooters for Planning had nothing to gain from the lawsuit except for the chance to meaningfully participate in government decisions.

Judge Langton did not address the request by Bitterrooters for Planning for a temporary restraining order to prevent the county from implementing the settlement agreement before a final decision is made in the case. He simply gave both sides 10 days to submit briefs arguing their case.

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