After extensive deliberation and disagreement between two board members, the Montana State Parks and Recreation Board decided to delay a decision on Hell Creek State Park to May 20 while gathering more information.
At issue was an appeal of a Montana State Parks decision to build new potable water and fish cleaning wastewater treatment systems at the park.
The board, which held its hearing Friday in Helena, got hung up on whether the project's appeal by the nonprofit Friends of Hell Creek had followed the proper process.
"I am not sure ... conflict resolution was addressed," said board member Mary Sheehy Moe.
"To say that this person is getting his day in court before us ... I think that is not the case."
Board chairman Angie Grove and the board's legal representative, Becky Dockter, disagreed, saying the appellant was given ample opportunity as the issue was reviewed by the state parks director and director of Montana Fish, Wildlife and Parks, both of which denied the appeal. They also agreed that the appeals process was not the issue before the board. They were to decide if the agency's decision failed to comply with the law, was arbitrary and capricious, or it was based on invalid or incomplete information.
Still, the board seemed unswayed by the duo's arguments.
"It's not a decision I feel really good about," said board member Erica Lighthiser. "I really feel a responsibility to the local community and the public."
Unable to reach a compromise between the opposing views, and out of concern that the discussion between the members could affect litigation, the board decided to ponder the issue for another 10 days, which will also give the agencies more time to find documentation to support their arguments.
In its appeal Friends of Hell Creek had argued, among other issues, that building the new facilities would limit the availability of land for the park’s concessionaire, Clint and Deb Thomas, who operate Hell Creek Marina through a lease with the state.
State Fish, Wildlife and Parks attorney Aimee Hawkaluk said the contract with the Thomases clearly allows construction on the 55 acres included in their lease.
“Quite frankly the petitioner is incorrect,” she said. “I don’t think it could be much clearer than it is.”
She added that the state had followed all applicable procedures in reaching its decision by soliciting and considering public opinion and dealing with the appeal.
“This is a very standard health and safety project,” she said.
The aging infrastructure has been in need of replacement for nine years and has suffered numerous breakdowns in the interim, Hawkaluk said. Delaying the work only drives up the cost, she added. When it went out for bid, the project was estimated to cost $773,000.
The Thomases’ attorney, Chris Gallus, disagreed with Hawkaluk’s interpretation of the lease contract regarding construction, saying he did not think it was so clear cut.
“It is not abundantly clear to me or my clients that you would occupy … what you construct,” Gallus told the board. “You’re putting something on the property that’s staying there.”
The Thomases’ portion of the lease where the new structures would be located eliminates the opportunity for the couple to use that 10 acres for dry storage, such as boats and trailers, to help increase their income at the site located north of Jordan on the remote shore of Fort Peck Reservoir.
Jim Gustafson, president of the Friends of Hell Creek, said other options were disregarded when Montana State Parks made the decision to proceed with the improvements, such as removing the fish cleaning station entirely or locating it somewhere that it wouldn’t impact the Thomases’ lease.
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He also questioned how well a new wastewater treatment system would work, asserting that fish remains run through the station’s garbage disposal would quickly clog the drain field.
“Clearly we thought that was the most feasible (option) at the time, and we still believe that,” Hawkaluk said.
Grove, chair of the parks board, reminded members that they could not redesign the decision by exploring placing the improvements elsewhere, a point emphasized by Dockter.
“Your authority in this circumstance is either to agree or disagree with the decision of the department,” Dockter said. “It really is kind of a yes or no in this circumstance.”
The decision was already upheld by the directors of Montana State Parks and FWP. The board’s decision was the last stop for the appeal unless the plaintiffs or the Thomases take the issue to court.
Gustafson complained to the board that the agencies had taken an adversarial stance with him in responding to his appeals and had made no effort to negotiate, a claim Hawkaluk denied but could not provide proof of. So the board recessed to give the agency time to find emails reportedly sent to Gustafson or his attorney by the Montana State Parks and FWP directors, who were both out of town.
“I don’t have it, but I believe it exists,” Hawkaluk said.
Upon reconvening, Hawkaluk could produce only one email that seemed to address a separate issue.
"I'm still not satisfied with that element of it," Sheehy Moe said, noting it was only one email with no apparent followup. "In the absence of documentation to the contrary, that's a problem for me."
Gallus said he and the Thomases had meetings with FWP but the agency’s attorneys specifically requested that Gustafson be excluded as they “felt that wasn’t proper,” he said.
Dockter stepped in to halt a question regarding FWP director Martha Williams’ letter to Gustafson in which she referenced a “paperwork error” in the agency’s delayed response to his appeal. That information could only be discussed with the board in closed session, Dockter said without further explanation but possibly related to a chance of legal proceedings regarding the issue.
In the letter, Williams was referencing the reason that work had started on the Hell Creek project last August even though the state had not responded to Gustafson’s appeal. In order to halt the work, he sought a temporary restraining order. When the state was notified of the legal maneuver, the agency stopped construction and the parks director, Beth Shumate, wrote a letter to Gustafson denying his appeal. Since the work was discontinued no TRO was ever issued. Williams also denied Gustafson’s appeal.
Separate from the issues before the board but on the minds of all who use the park is where the state stands on extending Hell Creek State Parks’ lease with the U.S. Army Corps of Engineers past 2021, which is when the current lease expires.
The directors of state parks and FWP have said informally that the state is not leaving Hell Creek.
“We have no plans to close Hell Creek,” Hawkaluk also told the board.
Yet the previous parks board adopted a letter of intent to do just that if partners could not be found to reduce costs, since Hell Creek operates at a loss. That decision has never been formally rescinded.
The uncertainty surrounding the future at Hell Creek has left the Thomases unsure about the future of the business they developed at the remote site. It also hampers any ability by them to make improvements to their facilities since banks won’t make loans until a lease is signed.
Gallus told the board that it would benefit all parties involved if they would address the issue.
“Sooner rather than later is better,” he said.