An application to create the Saddle Hills Subdivision east of Florence was denied Monday on a 3 to 2 vote by the County Commissioners. The proposal would have created 20 lots on about 118 acres east of Florence in the Eight Mile area off of Upper Woodchuck Road. After having approved one variance request related to the proposal at a previous meeting on September 11, the commissioners denied another variance request related to the proposal on Monday and then denied the subdivision as a whole due to significant and unmitigated impacts on local services, on public health and safety, and on wildlife and wildlife habitat.

Both the planning staff and the County Road Supervisor recommended denial of the variance request which would have exempted the developer from the required payment of pro rata share for road improvements on Eight Mile Road to bring it up to county standards. Instead, the developer had offered to chip seal a mile of that road and make significant improvements on Upper Woodchuck Road essentially bringing that road up to county standards.

Consultant for the developers, Terry Nelson of Applebury Survey, argued that the cost of the proposed improvements was a great deal more than the calculated pro rata share and would provide immediate improvements to the county roads in the area of the subdivision where the impacts were being created, while donations into the county grader district funds might not produce any improvements in the area for several years. Commissioners Greg Chilcott and Alan Thompson agreed with the developer, saying that the variance proposal would provide more benefits to the county taxpayers than the pro rata share formula.

Commissioners Jim Rokosch, Carlotta Grandstaff and Kathleen Driscoll disagreed, allying themselves instead with the planning staff and Road Supervisor's recommendation. They all reasoned that the use of pro rata funds in grader districts represented the best option for improving the county's roads in the best, most cost effective manner. The variance request was defeated on a 3 to 2 vote.

When it came to discussion of the state subdivision review criteria and determination of significant negative impact, the same majority of commissioners found at least three criteria were significantly negatively impacted by the development. The developer usually offers some sort of measure to mitigate those effects and make them acceptable. In this case the developer agreed to make $500 per lot payments to the school district, the fire district and the Sheriff's Office to mitigate the impacts on those services. The developer also agreed to preclude any further development of the largest lot in the proposal until countywide zoning was enacted in an effort to mitigate effects on wildlife and wildlife habitat since the area was determined to be important winter range for elk and mule deer. When this failed to satisfy the majority of commissioners, the offer of monetary donation was doubled, with the caveat that the second $500 per lot would be paid on the date of sale of the lot rather than at the time of plat approval.

In the end, however, the majority of commissioners did not think that the significant negative impacts of the subdivision could be mitigated by donation of those funds or limitations on development of lot #20, and the subdivision was denied.

Developer Brett Bandow said after the meeting that he would have to consider his options.

Late oath by City Attorney won't invalidate prosecutions

By Michael Howell

Ravalli County District Court Judge Jeffrey Langton ruled last week in a case under appeal from Hamilton City Court that the failure of City Attorney Ken Bell to take an oath of office would not invalidate his prosecution of Hamilton resident Michael Lee Sokol. Public defender Reed Mandelko, attorney for Sokol, had argued that because Bell was not sworn into office his prosecution of Sokol for disorderly conduct was invalid. Sokol was convicted of disorderly conduct by a jury in Hamilton City Court on March 2, 2007.

Attorney Ken Bell has functioned as Hamilton City Attorney since January, 2003. But he did not take the oath of office until he got wind of Sokol's objection. He was sworn in by the Mayor on July 11, 2007. Bell claimed that he was hired as a city employee and is not an officer of the city. In 2006 his status became an issue for some City Council members. The City Council, as a result and without consulting him, appointed him to a two-year term as City Attorney in March 2007. Notwithstanding the fact that he believed it was inappropriate for a city employee to take an oath, he nonetheless took the oath believing that it would put the issue to rest.

Judge Langton disagreed with Bell's analysis. Langton states that, according to Montana statutes and Hamilton City Code, the City Attorney position is a city official and not a regular employee position. He also found that although state law does not require a city attorney to take an oath of office, the Hamilton City Code does require an oath of the city attorney. Since state law does not prohibit taking an oath, the city code prevails.

Despite these findings, however, Langton also found that the fact that Bell may have been in violation of a city ordinance would not invalidate any of the cases that he prosecuted over the last four and a half years. Langton points out that the cases referred to by Mandelko, in which warrants issued by persons not duly sworn in as judges were invalidated, are not to the point. Those cases involved questions of judicial authority and the constitutional rights of defendants. This case, he points out, is not constitutional, but a violation of statute. He notes that, while judges and justices of the peace must be properly seated in order to exercise jurisdiction over matters before them, city attorneys, contrary to Sokol's assertion, do not assume or exercise jurisdiction over matters in court.

Langton notes that Sokol does not raise any other issue such as improper citation by the police officer, the City Court's jurisdiction, the fairness of the trial, or his conviction.

"Sokol's only issue is whether Mr. Bell, by virtue of his failure to take an oath of office, lacked authority to prosecute his case. Mr. Bell has acted as city attorney and performed the duties of the city attorney for four and a half years upon the belief that one who holds his office is not subject to an oath of office. Sokol has cited no authority to support a ruling that Mr. Bell's failure to comply with a local ordinance requiring him to take an oath of office barred him from assuming the position and duties of the office, thus rendering Sokol's conviction void, and the Court is aware of none. The Court concludes that Mr. Bell's failure to comply with the local ordinance regarding the taking of an oath of office does not void the actions he took as city attorney prior to July 11, 2007," states Langton in his order.

Langton goes on to state that even if the court were to find that this failure should nullify his prosecution of Sokol, the de facto officer doctrine would operate to prevent an invalidation of Bell's duties prior to taking the oath. The purpose of this doctrine is to protect the public's reliance on an officer's authority and to ensure the orderly administration of government by preventing technical challenges to an officer's authority.

Although the Montana Supreme Court has not addressed the de facto officer doctrine, Langton points out that many states have adopted it and some have codified it. He refers to several cases from other states.

"Here there is no issue that Mr. Bell is qualified for and was duly appointed to his office. Mr. Bell's license to practice law is not at issue. There is no dispute that Mr. Bell has been acting as City Attorney and performing the duties of city attorney since his appointment in 2003," wrote Langton. The motion to dismiss for lack of jurisdiction was denied.

Sokol also asked the court to exclude from trial two statements he allegedly made, one in which he referred to an alleged victim as "a little Mexican boy," and the other in which he told a witness in this case that he moved to Montana to "get away from the trash." That motion was also denied. Langton said that since Sokol's motion to vacate a jury trial and hold a bench trial instead had been granted, his motion to suppress his remarks was moot.

Cruelty to animals charges filed

By Michael Howell

Charges were filed on September 13, against 80-year-old Corvallis resident Delbert Carter, alleging 16 counts of cruelty to animals. The charges allege mistreatment or neglect of over 30 horses and a number of pigs, turkeys, chickens, and dogs.

Authorities were first alerted to a case of possible animal neglect by neighbors, Judy Lamb and Peggy Falk, who reported the situation at 1995 Haywire Lane in Corvallis to the sheriff's department on August 14. They stated at the time that some of the animals were obviously sick and/or starving.

Deputy McElderry and Deputy Moles responded and walked the property. According to the affidavit of probable cause, filed by Deputy County Attorney John Bell, the deputies observed several horses that were starving and many with injuries that had not been cared for. Several of the horses were observed to be extremely thin and showing their ribs and hip bones. There were also pigs that appeared to be in the same condition. Two were being housed in a horse trailer and another was found in the barn with a dead piglet. No food or water was observed in the area. The deputies also observed several horse bones and a dead horse carcass on the property

The owner of the property, Delbert Carter, showed up while deputies were still on the scene. He stated that he had only been feeding the horses corn and straw hay for the last month. He acknowledged that some of the horses needed medical care, but said that he was unable to provide it.

Subsequently veterinarian Dr. Gleason arrived and stated that several of the horses were underfed. He advised that they be separated from the stronger horses and fed differently. He also noted that some had injuries that needed to be treated. He suggested that many of the animals needed to be transferred to a safe location for monitored care. Numerous volunteers arrived that same day to help transport some of the horses. They were taken to the Ravalli County Fairgrounds.

The following day a search warrant was issued and the remainder of the animals, including pigs, chickens, turkeys, and dogs, were transported to the care of the Bitterroot Humane Society.

"Based on the age of the defendant (80 years), his current health and other considerations," states Bell in the affidavit, "it does not appear felony charges are appropriate in this matter although the number of animals involved meets the threshold for charging a felony."

The state is also requesting that Carter be forbidden to own or care for any animals during the remainder of his lifetime.

Increased reward offered for information about missing hiker

By Michael Howell

A $10,000 reward is being offered by friends and family of missing hiker Barbara Bolick for information leading to the identity of and contact with two men who may have seen her on the day of her disappearance. This is in addition to the $5,000 initially offered by the Carole Sund-Carrington Foundation, for information leading to Bolick's whereabouts.

Bolick was reported missing while hiking the Bear Creek Overlook Trail near Victor on the morning of Wednesday, July 18, 2007. Her hiking companion, Jim Ramaker of California, stated that he turned away for a few minutes while he and Barbara were near the overlook and she disappeared.

The Sheriff's Office, Ravalli County Search and Rescue, Missoula County Search and Rescue, Care Flight Missoula, Life Flight Missoula, Montana Air National Guard of Great Falls, Homeland Security Air Services of Great Falls, US Forest Service Law Enforcement, and High Country Search Dogs of Helena have spent hours on the trails and in the drainages in the area of the overlook and have found no trace of the missing woman. Air searches both day and night were conducted by helicopters.

The search for two young men who were seen on the mountain that day is continuing. The Sheriff describes the young men as in their early 20s. One was dark skinned, with black hair and an athletic build and may be of foreign descent. The other is described as medium complexion with reddish hair and an athletic build. The men also had a dog, possibly a border collie mix-breed, black with white spots. They were possibly driving a light colored SUV with Missoula license plates. These men are being sought as witnesses and may have information important to the investigation.

Anyone with information relating to this investigation is asked to contact the Ravalli County Sheriff's Office at 363-3033.

Yoga Jill

By Gretchen L. Langton

For nearly nine months I have been attending a yoga class taught by Jill Hughes of Yoga in the Root. She has been practicing yoga for 22 years and instructing for eight years. She learned to do yoga from her mother and from a book by Richard Hittleman.

"I made up my own routines," Jill recalls. Jill has been teaching in Stevensville, she says, "thanks to this lady. She got this class started." She is pointing at Darlene Grove who I have cornered after class for more interview information. Darlene saw a poster for a yoga class being taught by Jill in Missoula and she called Jill's number to see if she would ever consider teaching yoga in Stevensville. She told Darlene, "If you can get four to five people to attend, I'll do it." This was four years ago and Darlene has been attending ever since. Only now, there are eight to eleven people in Hatha Yoga, four-plus people in Ashtanga Yoga, and new classes in the Iyengar Yoga style (a style between Hatha and Ashtanga in difficulty). Jill has other yoga instructors joining her and she envisions a "full-schedule studio in Stevensville" in the future.

When I ask Darlene what she gets from yoga, she says, "As a senior person, it keeps me from getting stiff. I am more flexible. I have more energy to work longer in my garden." I, too, have found that yoga has increased my flexibility and improved my gardening stamina.

Before class one day, we were discussing injuries when Jill made a comment that caught my attention. "Yoga saved my life." It was a simple but powerful statement, not followed by any additional information; I was new and I didn't feel comfortable asking her to elaborate. I found out later that Jill had a massive tumor in her abdomen that was gangrenous for a year.

"I was a couple days away from a major failure," Jill says about the day she was carried into the emergency room. This was in January of 2006. Jill's tumor was an absorbed twin (called a teratoma); it was benign. However, the surgery, which amounted to a six-inch incision and a four-day stay at the hospital, was not easy for this physically active yoga instructor.

This doesn't sound like being "saved," you may be thinking; however, the saving part has been in Jill's recovery and Jill believes her arduous practice protected her from a worse fate, such as cancer.

"Yoga cleanses the deep organs of the abdomen," Jill says in class. She is absolutely positive that her yoga practice has expedited her recovery; yet, she is still not able to do some of the moves she could do before the surgery. Although it is hard for her awestruck students to tell, as she easily moves into a handstand (without using the wall), Jill says, "I'm still recuperating. I'm still six months away from coming back into balance."

Balance is something that Jill understands. In the accompanying picture, she is physically balancing on her arms with her knees to one side. As I look at my notes, I am not surprised to see that the word "balance" appears over and over. Jill is not just referring to physical balance. She uses Hatha Yoga as an example.

"Hatha is the yoga of poses. 'Ha' means 'sun' and 'tha' means 'moon.' Hatha brings everything into balance by incorporating the whole body. It works in the deep places to detoxify and also brings balance to the joints. Yoga heals the body and makes you feel more joyful and healthy and mentally balanced."

It is this mind/body connection that makes yoga an appealing anomaly in a culture that has worked so hard to separate the mind and the body into two distinct entities.

"Americans are missing a united-ness to our source of life in a non-dogmatic way," Jill tells me in relation to this disconnect. "In Sanskrit, the word 'yoga' means 'to unite or yoke together'." Jill wants to teach her students to "fly." When she says the word "fly" in class, she says "SHOOM" after it. Onomatopoeia. The word sounds like what it describes, the mind and the body connecting through language and action; the word and the movement the word describes become yoked together. SHOOM.

Jill has been yoked to her practice in a way that other serious athletes are. For five years, she practiced yoga six days a week for two hours a day. Then, for a year, she practiced for two and a half hours, six days a week. Then, she had to back off a bit because she says she was "tired." Yet, it is this dedication and experience that makes her such a gifted instructor. She knows her stuff - the form, the breathing, the gaze.

"They used to call me a drill sergeant when I taught in Missoula," she exclaims in class. It is true, she has the intensity of a drill sergeant without the attitude or the vocab. But she's a stickler for proper form and she pushes clients to constantly challenge their fears and insecurities without injuring themselves. She feels that her own injury has given her a deeper sense of empathy for clients who have body issues and this enables her to focus on particular poses conducive to meeting special needs.

"What do you say to those people who say that yoga is 'devil worship'?" I ask (because I have heard this in the past). Jill pauses before she says anything and her eyes widen.

"There is no theology in yoga," says Jill. "It's not a belief system. It can be joined with any belief system." One of the premises of yoga (referred to as the "eight limbs of yoga") is non-violence. Honesty and compassion and cleanliness are also "limbs."

While yoga is not hitched to any single belief system, "there is a moral standard," Jill says. The moral standards of yoga are universal and can be found in a variety of different belief systems. All four of the virtues listed above, for example, are described in the Bible, the Koran, and the BhagavadGita, three different sacred texts from different cultures.

Jill believes that yoga serves people of all ages, "from ten to ninety" because she has seen such great results.

"It is greatly satisfying to see people healthier and happier," says Jill. Go to yogaintheroot@gmail.com for more information and a schedule of classes. The schedule of classes can also be found in this publication.

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