In January, 2006, District Court Judge Ted Mizner ruled that Mitchell Slough, a 13-mile-long waterway stretching from Corvallis to Stevensville, was not subject to the 310 Permitting process under the Natural Streambed and Land Preservation Act of 1975 because it was "no longer natural" after years of manipulation by irrigators and landowners. As part of the same case, Mizner also ruled that the waterway was no longer open to fishing access under the state's Stream Access Law because that law only applies to a "natural waterbody," whereas Mitchell Slough, he found, is a "non-natural waterbody," and thus not open to public access under the law.

The long and complex case began when the Bitterroot River Protection Association filed suit in November, 2003, protesting the decision by the Bitterroot Conservation District to remove Mitchell Slough from its jurisdiction under the 310 Law.

But the case quickly morphed into a two-pronged issue involving the Stream Access Law as well. Several intervenors joined the case including landowners along the slough and the Montana Farm Bureau. The Montana Stockgrowers also entered an Amicus Curiae brief, as did DNRC and some local ditch companies. All these parties argued that the waterway was a ditch and not subject to either law. The Montana Department of Fish, Wildlife and Parks, which was stopped from joining the case under Judy Martz's governorship, was allowed by Governor Brian Schweitzer to join. Mizner allowed the agency to join in the Stream Access part of the case but excluded it from participating in the Conservation District part of the case. FWP argued, along with BRPA, that Mitchell Slough is public waters and accessible under the Stream Access Law. Trout Unlimited also filed an Amicus Curiae brief arguing that the 310 Law should apply to the slough. Over a dozen sportsman's groups from around the state have also filed Amicus Curiae briefs arguing that the slough is a natural waterbody and subject to both the 310 Law and the state's Stream Access law. The Ravalli County Commissioners became involved as third party defendants as they were considering a request from BRPA to establish a Portage Route into Mitchell Slough under a provision of the Stream Access Law.

While defendants in the case argued, for the most part, that Mitchell Slough was a man-made ditch, Mizner found, based on the evidence presented, that the slough was originally a natural waterbody and thus not a constructed ditch. However, he also found that the slough had been manipulated and altered over the years so that in essence it was no longer a "natural waterbody," and since both the 310 Law and the Stream Access Law apply to "natural water bodies," they did not apply to the slough.

The plaintiffs in the case are arguing that no amount of alteration or manipulation to a natural waterbody can turn it into a ditch, and that only man-made ditches are excluded from the laws.

"It may be man-altered, man-changed, man-manipulated," argued attorney Beth Brennan for the sportsman's groups, but it is not man-made." Plaintiffs also argue that Mizner's decision would apply to almost every stream and river in the state.

"I would point out that every river in this state has been manipulated in some way," BRPA's attorney Jack Tuholske said at the time of Mizner's ruling. "The same things that have been done in the Mitchell – riprapping, channelizing – it's all been done in our rivers. I think it would be very unfortunate if you could privatize a natural waterbody simply by doing a lot of work to it."

John Bloomquist, attorney for the landowners, was quoted in a press release from the Montana Stockgrowers Association (MSGA), saying, "The best thing about the ruling is the judge's recognition of the limitations of the Stream Access Law. The plaintiffs in the case were asking the court to go beyond that Law." The landowners are arguing essentially that the plaintiffs are trying to expand the Stream Access Law and the 310 Law to cover ditches or other "non-natural water bodies," such as Mitchell Slough.

Whatever the Supreme Court rules in the case, it stands to be a landmark case in the interpretation of Montana's Stream Access Law and the Natural Streambed and Land Preservation Act.

Citizen's group challenges Board of Adjustments decision

By Michael Howell

A local citizen's group has filed suit in Ravalli County District Court challenging the county Board of Adjustments' recent decision to grant a variance to the voter-mandated Interim Zoning Regulation that limits development to a density of one dwelling per two acres.

On July 16, 2007, the county Board of Adjustments (BOA) issued a variance to developer Russ Hunt's (R&G Development) proposal to build 14 condominium units on 3.35 acres near Corvallis. The board did so despite a recommendation from the Planning staff to deny the variance based on negative findings on some of the variance criteria. According to the Interim Zoning Regulation, which authorized the establishment of a Board of Adjustments, a variance could be granted only if it met all of the criteria. Failure to meet any one of the criteria would require denial of the variance request. The board overturned the Planning staff's negative findings and approved the variance.

The Ravalli County Commissioners twice in recent weeks considered filing a petition in District Court to review the BOA decision, but then declined to do so in both instances.

Bitterrooters for Planning, the group's President Stewart Brandborg, and Phil Taylor, member and author of the Interim Zoning Initiative, filed suit challenging the BOA's jurisdiction over the matter in the first place, and, in the alternative, that the decision it made was arbitrary and capricious.

The suit claims, first of all, that the BOA did not have jurisdiction to consider the case because state law and the Interim Zoning regulations only empower a Board of Adjustments to "hear appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in he enforcement of the zoning regulation." The plaintiffs claim that, since the County Commissioners never reviewed, approved or denied the subdivision, no decision was ever made that could be appealed to the BOA.

Deputy County Attorney Alex Beal has stated that he believes that a subdivision application was submitted but returned to the applicant without review. He said that this would constitute a denial of the application, which could then be appealed to the BOA.

If the judge deems that the Board is authorized to make the decision, then the group asks him to annul it on the grounds that the decision was arbitrary and capricious or otherwise not in conformance with the law. They argue that no evidence was presented that the property's location presented any real hardship to the developer as opposed to mere inconvenience, or that it was the minimum deviation required to still make a reasonable return on the property. They claim that there is no evidence that circumstances generating the request are unique to the property and that division of 3.35 acres into 7 lots with 14 units is "precisely the density that the Interim Zoning Regulation describes as an emergency situation."

The plaintiffs are seeking a permanent injunction enjoining the BOA from implementing approval of the variance request. The suit asks the judge to declare the decision arbitrary and capricious and reverse it.

Stevi proposes infrastructure access fee increases

By Michael Howell

The Town of Stevensville has proposed increasing its Infrastructure Access Fees (IAF). A public hearing on the matter has been scheduled for September 24, at 7 p.m. in the Town Council chambers.

The Town adopted IAFs on January 8, 1996. The fees are assessed to any new developments to help defray the cost of the excess water and sewer capacity. The charge represents the proportionate capacity of the "general benefit" facilities required by the new development. Revenues from the AIFs are used to retire any debt encountered in constructing the general benefit facilities, or in contributions to the system capital improvement fund.

The IAF is determined by dividing the value-debt of the existing facility by the total capacity units. Those facilities are considered as the improvements required and used by everyone on the system. The value is the current replacement value of the facilities.

In the case of the Town's water system, which includes wells, pumps, controls, supply lines, storage tanks, infiltration gallery and treatment plant, total replacement value of the entire system is calculated to be about $3,660,000. The water system has been constructed over the years from Town water funds, grants, and revenue bonds. A report from the Town's engineer, Tom Hanson of Professional Consultants Inc. (PCI), states that all revenue bonds have been paid off and there is no debt on the water system today. The report recommends that "all new developments should be required to 'buy in' to the existing system to the tune of $3,852 per EDU. An EDU is the typical amount of water used by a single family residence with a five-eighths inch water meter. Existing storage and water supply limits the system to 950 EDUs.

Since the IAF for sewer hookups was adopted in 1995, according to the PCI report, the General Obligation Bonds have been paid off. As a result, the "zoned" sewer IAF of 1996 is no longer applicable and the only debt remaining are the two revenue bonds to Rural Utilities Services. The "pay-off" amount on those bonds in July, 2007, totals approximately $1,932,000. "This debt is subtracted from the value of the sewer facilities because it is an amount to be paid from the monthly (or quarterly) sewer fees paid by all connections," states the report. The IAF for the 2007 sewer system was calculated to be $1,035 per EDU.

At its regular meeting on August 13, the Town Council considered a request from the Garden City Monument Services regarding placement of a native stone marker at the cemetery for the family of Bailey Spaulding. Concerns aired about the matter included the possible interference with equipment operation due to its height, the potential for native stone to fracture, the negative effect of deteriorating quality of the stone on the "positive outward visible aspect of the cemetery," liability in case of fracturing, a negative precedent of accepting varied materials.

Following discussion, according to unofficial minutes of the meeting, a motion was made and approved to have the cemetery board set up some standards for future placement of natural stone. After that a motion was made to permit the placement of the stone under consideration provided a liability affidavit is signed and responsibility accepted for any future problems with the monument. The motion passed unanimously.

In other business, Joan Prather, director of the Main Street Association, was on hand to discuss the organization's contract with the Town and answer any questions. Mayor Bill Meisner requested that an attorney review the contract before signing.

Tony Norman, representing the Creekside Meadows Homeowners Association, expressed concerns about the future planned phases of the subdivision, and sought an update on the status of a promised booster pump to boost water pressure to the subdivision. He said that installation of the booster pump was long overdue. He also expressed concerns about the subdivision's zoning that allows multi-family dwellings in the area close to the corner of Logan Road and Middle Burnt Fork Road and wondered how that could be changed. Meisner siad that it would require a public hearing.

A motion was approved to allow George Thomas and Chris Sparks to attend water school in Bozeman in September.

A public hearing on budget considerations was also set for September 10, 2007 at 7 p.m. at the Town council Chambers. Clerk Nancy Lowell said that she was concerned about the matching fees required for infrastructure costs associated with the water and sewer plants. She suggested that the Town's remaining CDBG funds be earmarked for those costs. The matter will be taken up at the budget hearing.

Lowell also reported that the Town had received its valuations from the Montana Department of Revenue for the 2007 Certified Taxable Valuation. The 2007 total market value is $70,151,358 and the 2007 total taxable value is $2,213,209. The taxable value of newly taxable property is $84,617.

The Town also received notice that a request for a $3,500 RRGL planning grant was approved by the state.

The Town also received notice that a request for a TSEP preliminary engineering report grant had been denied.

Mayor Meisner informed the council that Chip Pigman is interested in visiting with the council about developing property on the Eastside Highway at the old mushroom farm, north of town. An informal meeting to discuss the matter was set for September 17, at 7:30 p.m. in the Town Council chambers.

Under public comment, Doreen Meisner informed the council that there have now been 14 wrecks on College and 3rd St. near her house. She asked that stop signs be placed on 2nd, 3rd, and 5th streets.

County Road Supervisor answers a few questions

By Michael Howell

The Ravalli County Planning Board got a few answers to some questions that they put to Ravalli County Road and Bridge Department Supervisor David Ohnstad last week.

First off the Board wanted to know the status of the county's long term plans for road improvements. Ohnstad told them that the Road Department had recently finished establishing a list of the county's collector roads and major local access roads and setting priorities for improvements in the various grader districts. He said they were currently working on a list and priorities for minor local access roadways in the county, but it was not finished. Then they plan on working on a list of subdivision roads that are operated as county roadways.

Does the county road department have a list of roads that meet the current county standards?

"Not necessarily," said Ohnstad. He said that there are over 700 miles of county operated roadways in the county. He said that there are 300 plus individual roadways in all, and that maybe 5 or 6 are up to current standards. Those include portions of Hamilton Heights Road, Conner Cutoff Road, Golf Course Road, and Sleeping Child Road.

"Many county roadways evolved from territorial trails," he said. "We are faced with an outdated system currently being overwhelmed with traffic."

Board Chairman Chip Pigman asked if and when the county is seen doing some upgrading work on a road, could it be assumed that the road is then up to county standards.

Ohnstad said no. He said that many improvements were made on existing roads to address questions of immediate structural integrity, but the work does not necessarily bring it up to county standards. In many cases there are not enough funds to do that.

"But we will do what we can to make the road structurally sound and functionally safe," he said. He said that the best way to know if a road meets the county standards is to call the Road Department and ask, but for the most part you can assume that it is not.

Asked if there was a way to get pro-rata shares from developers to be used on the roads accessing the specific development instead of going into a grader fund and possibly being used elsewhere in the district, Ohnstad said that it would create an accounting nightmare with funds for every road. It would also take a long time to accumulate the required shares along the road to afford the improvements. He said it made more sense to pool the money and work on projects as they are prioritized in the district over all.

Planning Board recommends denial of Saddle Hills subdivision

By Michael Howell

The Ravalli County Planning Board went against the Planning staff recommendations last week and decided to recommend denial of the Saddle Hills Subdivision. The proposed subdivision is located about six miles northeast of Florence off of Upper Woodchuck Road in the Eight Mile area. It would create 20 lots on 118 acres, with a minimum lot size of 2 acres and the largest lot being 48 acres. It is situated in the Florence-Carlton School District and would be served by Florence Rural Fire.

The Planning Board first reviewed two associated variance requests. The first was for a variance from paying the pro-rata share for road improvements on Eight Mile Road, which was estimated by the planning staff to be $113,000. The second was for a variance from paying pro-rata share for improvements on Upper Woodchuck Road. Instead the developer, Saddle Hills LLC, proposed bringing Upper Woodchuck Road up to county standards at an estimated cost of about $325,000 to $350,000.

Consultants for the developer argued that the improvements would come to 125 to 150 percent of the estimated pro-rata share and have the benefit of actually being used on the local road, unlike pro-rata funds which go into a grader district and might be used somewhere else in the district.

The Planning staff recommended denial of the variance on Eight Mile Road pro-rata share requirements because no other improvements were suggested for the road. They recommended approval of the variance request on Upper Woodchuck pro-rata share because the developer agreed to improvements worth more than that on the road.

The developer's consultants, from Applebury Survey and Territorial Landworks, stated that if the variance request on Eight Mile Road was denied, they would reconsider their proposal on Upper Woodchuck and perhaps not pave the first portion of the road, but only the upper reaches that are on a steeper grade.

The Planning board decided to approve both variances.

Despite the recommendations of the Planning staff to approve the subdivision proposal as a whole, however, some members of the Planning Board took a different tack.

Lee Kierig, a local architect serving on the board, was very critical of the potential effects of the subdivision on the valley's view shed. He mentioned references to preserving scenic values in the county's Growth Policy and to the protection and preservation of the county's scenic and historic resources in the subdivision regulations. He stated that one of the valley's most important values was its scenic qualities. He was critical of placing 20 structures on 2-acre lots across the hillside.

A representative from the Planning Department stated that Kierig was showing frustration with the current subdivision regulations that lack any ridgeline development regulation or fiscal impact analysis.

"We are working towards that, but we are lacking them in the regulations right now," she said.

Kierig argued that the community's vitality was being erroneously equated and connected to short-term development. But the Growth Policy mentions sustainability of resources by using them in a way that does not deplete or damage the resource. He said that the valley's scenic values were its highest values and should be considered in this case.

"We cannot continue in a liberated society to pursue our own personal interest without any regard for how it effects the whole community," said Kierig. He said the staff report just failed to deal with scenic values.

A case was also made by Kierig and other members of the board that the density and distance of the proposed subdivision from local emergency services was also a significant negative impact on the community.

In the end, on a show of hands vote, a majority of the Planning Board found a significant negative impact on three of the six criteria, including effects on local services, effects on nature and the environment, and effects on public health and safety. The board then voted 4 to 3 to recommend denial of the subdivision.

The Ravalli County Commissioners will make the ultimate decision on the subdivision at a future meeting.

Fire update

Rombo Mountain Fire

The Rombo Fire, burning south of Darby in the West Fork area, burned aggressively to the east-northeast on Monday. A Stage II Evacuation Order for Zone 17, affecting about 35 structures between just south of the Trapper Creek Jobs Corps Center south to Lloyd Creek along the West Fork Road, was lifted Monday afternoon due to cooler temperatures, reduced winds and higher relative humidity. The evacuation order was downgraded to a Stage I Pre-Evacuation Alert. New Stage I evacuation notices have been issued for residents between Warm Springs Creek west to Conner. Residents can get up-to-date information about these evacuations by calling the Ravalli County Evacuation Hotline at 375-6650. Information regarding the fire can be accessed by visiting www.inciweb.org or by calling the Rombo Fire Information Team at 821-0082.

A Type 1 Incident Management Team from the Southern Area took over the management of the Rombo Mountain and the Beaverhead-Deerlodge National Forest's Rat Creek, and Pattengail Fires on Tuesday morning. Official closures of areas, roads and trails resulting from fire activity changes almost daily. Call the Bitterroot NF at 363-7176, or any one of the District offices, for the most current closure and fire activity information.

Sawmill Complex

The Sawmill Complex of fires continues to burn actively in the Rock Creek Drainage, 22 miles southeast of Missoula. As of Monday, 50,575 acres had burned, and fire fighting efforts have cost $8,555,505 to date.

Recent activity on the Wyman 2 Fire has been mostly to the east and the north on the Lolo and Deerlodge National Forests. This fire has burned more than 33,356 acres. The fire spotted across Stoney Creek on the south side on Sunday, but poor visibility kept firefighters from closely monitoring the fire's movement. Monday's moderated conditions allowed firefighters to assess the spot fire and act on opportunities to control it. On the north end of the fire, crews continued to scout for burnout opportunities to tie into the old Alder Burn. Firefighters are continuing structural protection.

Sawmill Fire - 7,800 acres: The south end of the Sawmill fire was active Sunday as the fire spotted south of Welcome Creek and moved rapidly upslope. Fire also spotted east of Rock Creek and south of Ranch Creek. Crews on the northeast perimeter of the fire continued to assess and improve hose lays and worked to bring the fire down to containment and point protection lines. Helicopters were used for water drops in the morning before poor visibility shut down aviation operations. No retardant drops occurred Sunday. Firefighters will work to contain any spots that cross Rock Creek. The fire burned down to the footbridge at the Welcome Creek Trail and spotted across Rock Creek. Those spot fires were being assessed Monday. The north end of the fire was progressing towards Gilbert Creek.

Fisher Point Fire - 9,419 acres: On Sunday, winds from a passing cold front pushed the fire east towards Standish Creek. Firefighters continue securing perimeter protection zones around structures with sprinklers and hose lays. The Fisher Point Fire is expected to continue its movement in two fingers toward the east and northeast.

Signal Rock 07 Fire - 300 acres: The Signal Rock 07 Fire is on the Pintler Ranger District and continues to be monitored from the air.

Official closures of areas, roads and trails resulting from fire activity changes almost daily. Call the Bitterroot NF at 363-7176, or any one of the District offices, for the most current closure and fire activity information.

Due to mild, wet weather, the mandatory evacuation order issued Sunday for all of Rock Creek was been lifted. However, as of Monday, Rock Creek residents were still under 24-hour evacuation notice. Rock Creek Road is open to residents only. From Mile Marker 12 to Miller Flats, Rock Creek Road is closed to all traffic, including residents. The alternate route for Miller Flat residents is along the Rock Creek to the south.

Sunday's evacuation of the Upper Willow Creek area from Miners Gulch Road north remained in effect as of press time. The Upper Willow Creek road is closed to all travel from Miners Gulch north.

The Beaverhead-Deerlodge National Forest has closed portions of the Goose Gulch Rd. #4325, Otter Creek Rd. #8419, Miners Gulch Rd. #5156, and Upper Willow Creek Rd. #88. These roads are closed to all motorized vehicles, foot, bicycle, and horse activities for public safety due to fire activity.

The Montana National Guard is assisting with roadblocks and security efforts.

An additional road closure is in place in the Sand Basin Road to limit access to the Signal Rock 07 Fire. Contact the Pintler Ranger District office for details on the Sand Basin closure.

Trail #313 (Sapphire Divide) from the Skalkaho road to Sawmill Saddle has been closed. The Skalkaho Road is not affected by these closures.

Due to water conditions and fire operations Rock Creek is closed to fishing from Skalkaho Highway Bridge to the Clark Fork River.

Additional national fire information can be found at www.inciweb.org or the Lolo National Forest Website at www.fs.fed.us/r1/lolo/

Black Cat Fire

Black Cat Fire - Fire officials reported that fire activity increased in the Mill Creek area late Sunday afternoon as the fire burned its way into the bottom of Cottonwood Creek. On the northeast flank of the fire, firefighters made good progress with burnout operations which were done to strengthen firelines and to protect structures in the Evaro area.

On Monday personnel continued to hold and secure the fireline in the Spring Hill and Mill Creek area. On the north and northeast flanks of the fire, personnel continued constructing fireline using existing roads where possible and burning out as needed to reinforce the line. On the east flank of the fire, crews were continuing to manage the fire as it backed down towards Highway 93.

As of Monday, the following evacuations were still in place for the Black Cat Fire:

• West side of Highway 93 from mile marker 3.5 to mile marker 5.5 including Grooms and Ryan Roads.

• Both sides of Highway 93 from mile marker 5.5 to mile marker 10 (Joe's Smoke Ring) including all property accessed from and including Beargrass Mountain, Mercer, and Evaro Roads.

• Upper Mill Creek including Mill Creek stables and the area above Mill Creek Bridge.

A preparedness request was issued for residents along Highway 93 from mile marker 10 to mile marker 12. Residents were advised to remove any large items (boats, trailers, etc) and livestock in case an evacuation is ordered. Residents were also advised that they needed to gather personal items and be prepared to evacuate with one hour's notice.

Closures: Officials are working diligently to keep Highway 93 open to through traffic, but the public is reminded that stopping along the highway is not permitted. Due to the fire activity adjacent to Highway 93, the highway may be intermittently closed throughout the day and delays should be expected.

The Black Cat Fire started by lightning on August 14, and as of Monday had burned 8,448 acres and was 12% contained.

Area Command to manage fires in Western Montana

An Area Command team assumed oversight responsibility on Monday for a half dozen fires and fire complexes currently burning in western Montana on state Department of Natural Resources land, Flathead Tribal lands, Confederated Salish and Kootenai Tribal lands, Bureau of Land Management land, and federal land on the Lolo National Forest, Bitterroot National Forest, and Beaverhead-Deerlodge National Forest.

The Area Command team is led by Tom Zimmerman and includes specialists in planning, logistics and aviation. The team will operate out of the Aerial Fire Depot in Missoula.

An Area Command team is responsible for increasing efficiency in the management of large, complex fires and complexes. The following objectives are fundamental to an Area Command mission:

• Setting priorities for the distribution and assignment of firefighting resources for the fires within their jurisdiction.

• Allocating resources where they can be most effective in the mission of suppressing fires and protecting life and property.

• Improving the span of control for agency administrators so that those administrators can stay focused on the immediate priorities and needs under their jurisdiction.

Though Area Command will make decision on priorities and resources, the operational control of the fires will remain under the incident command teams for all of the fires, which include Black Cat, Jocko Lakes and Ovando Mountain, Sawmill Complex and Signal Rock, Rat and Pattengail Creeks, Rombo Mountain and Conger Creek.

Fire information functions and fire updates for the given fires will also remain under the fire information officers on the fires and with the various agencies. For more information, contact the Lolo National Forest Public Affairs Office at 329-1024, the Bitterroot National Forest Public Affairs Office at 363-7113, the MT DNRC Fire Information at 542-4235, or the Flathead Agency/BIA/Confederated Salish & Kootenai Tribal Fire Information Officer at 406-676-2550. Information is also available at: http://www.inciweb.org.

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