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Wednesday, February 7, 2007

Page One News at a Glance

Six more weeks of winter

Streamside Buffer Zones and Setbacks: a scientific overview

Legislature considering minimum streamside setbacks for state

Court reviews legitimacy of ballot issues

More join lawsuit over county subdivision process

Injunction denied on Middle East Fork Project

Stevi Police Force now functionally staffed

Six more weeks of winter

By Michael Howell

Get ready for six more weeks of winter.

At least that is the consensus of the special Groundhog Day expeditionary crew sent out to scout the Lee Metcalf National Wildlife Refuge for signs from "Bitterroot Bill," or any of his compatriots, as to how much longer this winter will last. Everybody knows that groundhogs can predict how much longer winter will last. When a groundhog emerges from its burrow on February 2, Groundhog Day, if it sees its shadow and flees back into its burrow it portends a slow end to winter and at least six more weeks of winter weather. If, on the contrary, it does not see its shadow, then we can expect winter to end soon, at least within four weeks.

Many people in the nation avidly await the annual prognostication of Punxsutawney Phil, a famous groundhog living in Pennsylvania. But way out west, here in the region of the Bitterroot Valley, we know that things don't always work out the same way they do back east. Things are just different out here. For one thing, the weather can be a good deal different. For another, we don't have exactly the same kind of groundhogs they have back east, ours are more properly referred to as Yellow-bellied Marmots, a cousin of the groundhog. So, naturally, we seek out our own local prognosticators when it comes to such important matters as when winter will end. Here on the Lee Metcalf National Wildlife Refuge, we generally try to consult "Bitterroot Bill," a local marmot living near the old barn on Wildfowl Lane, in the heart of the refuge.

This year, back in Pennsylvania in front of tens of thousands of people, Punxsutawney Phil predicted an early end to winter. But that's back east, remember. Also worth noting is that Punxsutawney Phil lives the entire rest of the year, 364 days, in a climate controlled glass "burrow" next to the Punxsutawney Library.

Out west, we would be very suspicious of such a, well, "citified" consultant, especially about something as wild as our weather. As a result we tend to rely a little more on wild consultants, such as Bitterroot Bill. Consequently, our consultation process is a little more difficult. We can't just let the critter out of its cage for a staged performance. We've got to go find him. Thus the need for the expeditionary crew.

Lucky for us, the Bitterroot Valley appears to be uncommonly blessed with a number of courageous and adventuresome folks willing to endure the hardships (sometimes it's very cold, this year it was only about minus two at sunrise) required in seeking out such a wild and often elusive consultant.

The volunteers were young, it's true, mostly under 12 years of age, but they were a well-trained group and performed admirably. Before going out they received some quality instruction on the nature and habits of the animal they were seeking from the refuge's outdoor recreation planner, Bob Danley.

A cousin to the groundhog, the Yellow-bellied Marmot is a member of the squirrel family. It is a furry rodent that can grow from 14 to 20 inches long and weigh from 4 to 11 pounds. Five different species of marmot are found in the United States. It is an herbivore. It lives in a system of burrows and sleeps most of its life away. It hibernates up to eighty percent of the year. In hibernation, it can take as little as one breath every six minutes. It forges six-inch-wide trails between and around its burrow entrances and may be seen active outside the burrows mostly at dawn and dusk. Babies are born naked and blind. Females generally have only one litter per year, averaging five offspring to the litter.

Members of the expeditionary crew were trained in what to look for in terms of tracks and how to analyze them, figuring out how old they might be and determining when they were made. Tracks may also indicate other things about the animal. Was it walking or running? The crew members even learned what to smell for. According to Danley, an "occupied" burrow will smell like chicken soup.

Stevensville Mayor Bill Meisner and his wife Doreen were also on hand in Lewis and Clark period dress. The mayor reviewed some basics with the crew before setting them loose. He went over the hand signals used for communicating silently while on the hunt. A closed fist, for instance, means "be quiet." Two fingers extended in front of your eyes means that you see something. The mayor also warned them to never reach into a burrow because marmots can bite. He said that he could vouch for the truth of that from experience, but did not elaborate.

Outfitted with the appropriate knowledge and warnings, then, the expeditionary crew set out in search of the elusive Bitterroot Bill, or any of his neighbors.

It was not surprising to hear upon their return that no marmots had been actually spotted. After all, the expedition was conducted at mid-day and we had already been told that marmots are mostly out of their burrows at dawn and dusk. But the lack of any live sighting did not deter this dauntless crew from estimating what must have transpired here on this February 2, 2007, Groundhog Day, at the Lee Metcalf National Wildlife Refuge.

For one thing, you couldn't ask for a sunnier day. Shadows were everywhere evident. There was little question in the crew's mind that if a marmot came out of its burrow today it would have seen its shadow. So did any marmots come out?

Tracks were found. Since the preceding day had been very windy and no new snow had fallen today, a good clean set of prints, with no snow blown into it, would indicate that the tracks were made today. The crew reported seeing just such tracks. They concluded that a marmot had been out walking this morning and must have seen its shadow and gone back in the burrow.

Mayor Meisner asked if they could be sure that the tracks they saw were made today. The crew assured him that the tracks were made this morning.

"They were made about 7 a.m. this morning," volunteered one of the crew.

The mayor asked how he could be so sure.

"By looking at the tracks," came the quick reply.

After a quick poll of the crew members, it was decided by general consensus that there would indeed be six more weeks of winter and the Mayor was so advised.

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Streamside Buffer Zones and Setbacks: a scientific overview

By Michael Howell

A public presentation concerning streamside buffer zones and setbacks, sponsored by the Bitterroot Water Forum, drew about 80 residents to the basement of the County Courthouse last week. The presentation, by Montana Department of Fish, Wildlife and Parks (FWP) fisheries biologist Chris Clancy and FWP wildlife biologist Jim Vore, was meant to provide an overview of the scientific literature on the function of buffer zones along streams and rivers, as valuable background information for the current effort aimed at forming some local regulations for streamside setbacks.

Clancy contrasted his approach to the question of buffer zones and setback regulations to those of local consultant Clint Brown, who has been engaged by the Bitterroot Board of Realtors. Brown has promoted and primarily uses a physical classification of streams in arriving at a setback limit based upon the stream's physical structure, whether it is narrow, steep, straight and fast flowing, or slow and meandering, etc. What Clancy offered in contrast is a notion of buffer zones along streams and rivers based on biological considerations. These buffer zones would include an area on each side of a creek that should not be disturbed in order to ensure a naturally functioning riparian habitat benefiting fish, wildlife and preserving water quality, by ensuring the natural filtering process of surrounding riparian vegetation.

While there have been a lot of scientific studies aimed at understanding buffer zones and the role they play in preserving water quality, preserving an active and vibrant fishery, and supporting many forms of wildlife in various ways, according to Clancy, there is little scientific literature on setbacks.

"The science is all about buffer zones," said Clancy. "The setback limit is a line drawn further back from the buffer zone to keep new construction and associated activities from negatively impacting the buffer zone."

Clancy said that understanding buffer zones was not easy. He said that a 50- to 75-foot buffer zone of riparian vegetation might be considered adequate for protecting water quality and maybe protecting water temperature. But that buffer zone should likely be enlarged to 100 to 150 feet if preserving a vibrant fishery is of concern.

"The buffer zone should be at least as far out as our tallest trees are tall," said Clancy, "at least 100 feet." He explained that the falling trees are an integral contribution to the stream when viewed as fish habitat.

FWP wildlife biologist Jim Vore explained how many mammals are dependent on the stream for water and also upon the riparian habitat associated with streams for food and travel corridors. An adequate buffer zone around a stream for many of our wildlife species could easily extend up to 200 to 300 feet from the stream or even greater. In some cases it could realistically be measured in the thousands of feet, he said.

Vore explained how opening up a riparian area by clearing vegetation could have negative effects on local wildlife species. Opening riparian areas favors the cowbird, for example, a parasitic nester that can lead to depletion of the local songbird populations.

Vore explained how many animals are dependent upon thickly covered riparian corridors as avenues of travel. If the corridor used by black bears, for instance, gets too narrow, the bears will quit using it. He also explained that corridors alone were not enough, but occasional larger "refuge areas" were also essential to making the corridors work.

So what do we do about setbacks, given all the varying biological considerations?

What Clancy did was look to the scientific literature on the subject and try and get a picture or come up with a graph that could represent "reasonable" setback limits based upon "reasonable and acceptable" buffer zone definitions in the major number of studies. He did so by conducting what he called a "third order review" of the major reviews conducted of the many original studies on the topic.

First Clancy translated to graph form what most of the studies reviewed were recommending as adequate for various concerns beginning with water quality, temperature, fish habitat, and wildlife. As expected, the buffer zone recognized as adequate for protecting water quality and temperature was lower than that for protecting any fish and wildlife values. The line that Clancy drew to balance the studies and define for us an approximate limit, fell in the range of 50 to 75 feet. The range for fish habitat fell out at 100 feet. Clancy said it was the minimum buffer needed to produce the deadfall into the creek for optimum fish habitat, the height of our tallest tree. A Washington State review, he said, based upon a review of 1,500 research papers, recommended a 150-foot buffer zone for fisheries, he said.

Clancy said that studies show that the needs for wildlife range from 200 to 300 feet, but also, in many cases, much beyond that.

Based upon his analysis of the literature, Clancy called his appraisal of "acceptable" buffer zones of 75 to 150 feet from streams and 200 to 300 feet from rivers "very conservative." He said that those distances for buffer zones would protect the water quality very well, protect the fishery to a good degree and protect wildlife to a lesser degree. These would only be recognized buffer zones, he said. The actual setback distances would logically be greater.

Clancy said that to combine this biological approach to buffer zones with an analysis based upon physical types of streams, such as that espoused by the Board of Realtors' hydrologist, Clint Brown, "would be very elegant, but how we get there is a problem, it is a work in progress."

Clancy also offered an overview of what different counties around the state have done in terms of establishing their own local setbacks. He said that most of the counties that have adopted setbacks have done so without basing it on much science. He advocated following the model of Lewis and Clark County, which has setback regulations that include buffer zones and are based, to some degree, on scientific data.

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Legislature considering minimum streamside setbacks for state

By Michael Howell

Ancillary to the presentation concerning buffer zones and local setback regulations was a presentation concerning Senate Bill 345 currently being considered by the legislature to set some statewide limits on building next to streams and rivers. Matt Clifford, staff attorney and Conservation Director for the Clark Fork Coalition, applauded the efforts at devising local setback regulations tailored to fit the needs of Ravalli County. But he also praised the efforts to set some statewide minimum standards.

"Some counties don't have the resources to develop their own setback regulations," said Clifford. It's for that reason, he said, that the state needs to step in and set some minimum standards across the board. He called the proposed statewide setback law a piece of "hybrid legislation" that would allow any county to tailor its own regulations to fit its own needs, as long as it meets some minimum standards.

According to Clifford, the regulations being considered by the legislature would impose a 250-foot setback with 100-foot buffer zone from rivers and a 150-foot setback with 50-foot buffer zone on tributaries. In the case of the Bitterroot River it would also impose a 250-foot setback on the West Fork, but the East Fork would default to a 150-foot setback.

If a county wants to develop its own local regulations, which is encouraged, it must base the regulations on peer-reviewed science, said Clifford. They must be generally designed to keep development out of the 100-year floodplain. The regulations must also account for channel migration and address the nature of adjacent land.

In response to questions from the audience, Clifford stated that existing conditions would be "grandfathered," only new development would have to meet the new setbacks. Agricultural use has also been exempted from the setback regulations. Clifford said that he envisioned a fee-driven permit system would need to be developed locally to pay for enforcement of the law. He also said that he would favor some sort of oversight group or agency to monitor enactment of local regulations and evaluate them to ensure that they do meet the minimum state standards.

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Court reviews legitimacy of ballot issues

By Michael Howell

Missoula District Court Judge John Larson heard from both sides last Wednesday, January 31, in the case challenging the validity of two recently successful county ballot measures. One increasing the number of commissioners from 3 to 5, and the other shortening terms of office from 6 years to 4 years. The lawsuit also questions the very form of Ravalli County government. The court is being asked to issue a temporary restraining order to stop Ravalli County Clerk and Recorder Regina Petterson from proceeding with preparations for the primary election scheduled for April 3, 2007, and to issue an injunction that would effectively stop the scheduled election of five commissioners in June.

The plaintiffs argue that the voters never adopted an alternative form of government, such as the Commissioner Form of Government, which would allow increasing the number of commissioners to five. Instead, they claim, Ravalli County is still, by default, an "elected official form of government" and thus restricted by law to only three commissioners serving no less than six year terms.

The plaintiffs also allege that the Local Government Review Study Commission, which put the measures on the ballot and are defendants in the case, did not adequately inform the voters that if they voted for an increase to five commissioners it also meant forcing the sitting commissioners, including newly elected Howard Lyons, to run for office again as well.

State law allows at least 10 voters to petition the court for a review of the electoral process resulting in the passage of a public initiative, if they believe the process was flawed. Former legislator and insurance salesman Fred Thomas spearheaded the movement and a petition was submitted alleging that Ravalli County voters never legally adopted the "Commission Form of Government," and were not informed about the full effect of their vote.

The plaintiffs presented two witnesses.

Former Planning Board member and current candidate for one of the five county commission seats, Gary Zebrowski, told the judge that he did not know when he voted for the five commissioner option that it would mean unseating the current commissioners and the newly elected commissioner and force them to run in the special election. He thought there would only be two seats up for election. He said that he read the voter information pamphlet, generally reads the newspaper, and went to a Local Government Review Study Commission meeting in Hamilton but was not informed that his vote would mean ousting the current officials.

County Attorney George Corn, representing the Local Government Review Study Commission, had Zebroswki read from the minority report of the voter information pamphlet where it explicitly states that approval of the five commissioners option would require sitting commissioners with unexpired terms to run for office again. Corn also had Zebrowski read from two newspaper articles from the daily newspaper to which he subscribes, wherein it was mentioned, well before the election that a vote for the five commissioner option would require all the commissioners to run for office.

The plaintiffs also presented as a witness Ken Weaver, former director of the Local Government Center at Montana State University in Bozeman. Weaver testified that he did not believe that Ravalli County ever legally adopted the "Commission Form of Government." Since no such change was ever approved by the voters, he argued, Ravalli County is still an "elected official form of government." He said that the confusion comes in because the term "Commission Form of Government" was used generically to refer to all forms of government, even the "elected official form of government."

Corn objected that Weaver, who is not an attorney, was drawing legal conclusions and they should not be relied upon by the court. He asked Weaver to read from the evidence of the 1976 Local Government Study Commission plan where it certified the form of government being adopted. Weaver read, "Commission Form of Government." But then insisted that it was being used in the generic sense. He said that only seven counties in Montana had adopted an alternative form of government and Ravalli County was not one of them.

Defendants called Ravalli County Commissioners' Administrative Assistant Glenda Wiles to the stand. Wiles served as an ex-officio member on the study commission and reported to the commissioners about study commission activity. Wiles stated unequivocally that she told the commissioners several times about the potential repercussions of the vote to increase the number of commissioners. She told them that they would have to run for office again if the ballot measure was approved. She also said she felt that it was important to include the information in the voter information pamphlet and did so in a minority report that was included in the pamphlet. She said that over 108 public meetings were held and over 18,000 information pamphlets were distributed.

Also testifying for the defense was Veto LaSalle. Retired from the US Forest Service and a former member of the Planning Board, LaSalle said that he only read the minority report in the information pamphlet and two newspaper articles and that was enough for him to recognize that voting for an increase to five commissioners would mean the possibility of making a "clean sweep" of the office.

"I felt that the commissioners were not reflecting the majority view in the valley," said LaSalle, "they weren't accurately reflecting the diversity of views in the valley." He said for that reason he wanted a chance to vote them out and that is what he voted for. He said that he felt like it was important to let these voter mandated changes go forward and not delay the vote.

Corn closed by saying, "What we're talking about is basically the legitimacy of our government." He said that the local government review was authorized by the constitution, the voters exercised their right, and now this suit seeks to nullify that change. He called the suit "an assault on the values embodied in our constitution."

The Clerk and Recorder must begin the process this Tuesday to meet the statutory timelines for holding the primary election in April. Judge Larson did place a temporary restraining order on the electoral process but indicated he would make a ruling by Tuesday as to whether that temporary restraining order would be upheld.

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More join lawsuit over county subdivision process

By Michael Howell

A lawsuit filed in federal court last January protesting the treatment received by landowner Rebecka Lords in the Ravalli County subdivision review process has recently ballooned, with 13 additional plaintiffs joining the case. Lords, who was planning a 33-lot subdivision on 33 acres northeast of Stevensville on Moiese Lane, sued the county alleging that the county took too long in processing the subdivision application and then changed the subdivision rules in the middle of the process costing her about $50,000 in expenditures on the project.

County Attorney George Corn said that the County Commissioners were served papers last Thursday informing them that 13 additional plaintiffs had now joined the case. The additional plaintiffs include Flat Iron Ranch LLC; Big Sky Development Group; the Willoughby Development Corp.; the Norgaard Family Trust; Mark Barteaux and Scott Schmeideke; Terry Nelson; Sunnyside Orchards; Kearns Properties; Thomas Gracek; Rudy and Bernice Kratofil; Bitterroot Land Company; Bass Lane LLC; Jeff and Tracy Scussel; and Man Enterprises. They claim lost development costs totaling from $10,000 to over $350,000 each.

The plaintiffs are asking for damages, attorney fees, and punitive damages, seeking to punish the county for what their attorney, Bill VanCanagan, calls, "an abuse of governmental power which shocks the conscience." The county is accused of purposefully, maliciously and intentionally violating the plaintiffs' rights under the Due Process clause of the 14th Amendment to the U.S. Constitution.

The lawsuit also challenges the constitutionality of the county's recently adopted Interim Zoning Initiative which limits density to one dwelling per two acres, as well as County Attorney George Corn's determination that it would apply to subdivision applications already in the process at the time of passage. The court is asked to declare the density restriction null and void.

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Injunction denied on Middle East Fork Project

By Michael Howell

The first units of hazardous fuels reduction treatment have been completed in the Middle East Fork Project, and with Monday's decision from the Ninth Circuit Court of Appeals denying a request for an emergency injunction, filed by WildWest Institute and Friends of the Bitterroot, work will begin soon in additional units within the wildland urban interface.

Rocky Mountain Log Homes has completed helicopter logging in several units included in the Spring-Mink Stewardship Contract. Logging-related activity in this area will cease until early summer, when crews will return to accomplish some additional work. A November 28, 2006 closure order, put in place to protect public safety during the timber harvest operations, was rescinded on February 2. District Ranger Tracy Hollingshead said, "I am excited about the initial work that Rocky Mountain Log Homes has accomplished, and I look forward to seeing the early results of Bob Walker's efforts in the next month or so."

Bob Walker Logging was the successful bidder on the Kerleebert Stewardship Contract, and representatives from the company indicate they hope to begin helicopter logging in three of these wildland-urban interface units within the next few weeks. A second closure order will be signed once the specific location of activity is determined.

District Ranger Hollingshead said, "We will use closure orders judiciously. We want to minimize the impact of logging activity on people's use of the area while also ensuring that we provide for public safety. While logging is occurring in the area, we remind folks to watch for logging trucks on the East Fork Road as well as on Highway 93."

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Stevi Police Force now functionally staffed

By Michael Howell

The Stevensville Police Department, following a low point at which it was reduced to one active officer and no clerks, has plugged that gap for now by hiring two part-time clerks, and one part-time officer. Charlotte Lyson-White and Hannah Jessop are both working part-time as new record clerks and former Reserve Officer Rob Lafobair is now serving as a part-time police officer. Mike Sunderland Jr. has joined the Reserve Officer ranks. Criminals beware: the Stevensville Police Department is now functionally staffed!

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