Lawsuit against county hits first obstacle

A legal battle is underway against the bridge to Dockstader Island in Bigfork.

The Community Association for North Shore Conservation filed a lawsuit against Flathead County in February over the permit for the bridge, which they argue was unlawfully issued to Roger Sortino and Jolene Dugan.

The association’s attorney, Donald Murray, requested a Writ of Mandate, asking that the permit become invalid because it didn’t go through the proper steps before being granted.

On Feb. 27 Flathead County Distric Court Judge Robert Allison denied the request for writ of mandate, stating that the writ application was insufficient and that, “mandamus does not lie to correct an action already taken.”

Murray disagreed with Allison’s reasoning for the decision and has applied for reconsideration and a hearing of the writ.

Allison made his decision based on a case that states you can’t undo something a government entity has already done, however, Murray argues that case and logic, doesn’t apply in this instance.

“We’re not asking him to order the county to revoke the permit,” Murray said. “We’re asking him to require the county to refer the permit to the planning board.”

If Allison does decide the county has to refer the permit to planning board, the action would invalidate the existing permit. But if Sortino and Dugan still wished to continue with the project they would then have to have the permit application submitted to the planning board, and opened to public comment.

“It would be our hope that the public would come out in force and express to the planning board that this is not a good idea,” Murray said.

Sortino and Dugan originally received a permit from the county to build the bridge in 2011. Construction started in March 2014. Four permit extensions have been issued. The most recent extension was on Jan. 25, before work on the 481-foot bridge resumed, and the lawsuit was filed.

The Community Association for North Shore Conservation and Murray contend that the original permit was issued in violation of Montana’s Lakeshore Protection Act, which was created by the Legislature in 1975.

According to the act, the county has enforcement jurisdiction over work performed in what is called the lakeshore protection zone — areas within 20 horizontal feet of high water marks. Under the terms of the act, the county may issue a permit without public review of a project that is deemed minimal or insignificant. Murray and the community association contend that a 481-foot bridge is neither minimal nor insignificant. 

In their request to have the writ decision reconsidered they argue that the permit application needed to have gone through the planning board and abide by the regulations in the Lakeshore Protection Act. 

Two county commissioners in a 17-minute discussion decided to issue the original permit without referring it to the planning board, Murray said in his response to Allison’s decision.

In Murrary’s motion for reconsideration of the writ, it claims that in the 17 minutes the permit was looked at by the commissioners, there was no discussion about the impacts of the project as far as visual or environmental, or to recreation.

“It was the clear legal duty of the county to obtain planning board review of this project before granting a permit,” the motion says. “A group of concerned citizens should not have to go to court to compel the county to do its duty.”

The Community Association and Murray hope Allison will withdraw or suspend his decision on the writ of mandamus application, and schedule a briefing and time for oral argument before ruling on the matter.

If Allison chooses to deny the motion for reconsideration, Murray said there are still several courses of legal action the Community Association for North Shore Conservation can take.

Murray said he would probably recommend making a motion for summary judgment. When you do that, he said, you are basically saying there aren’t really any disputed facts and you can rule on the case based on these uncontested facts.

“We think the Lakeshore Protection Act is to protect our lakeshore from this kind of thing,” Murray said. “The hope would be the county would listen to the public when they had the chance to speak about protecting the lakeshore.”