On Wednesday, the Clark Fork Coalition sent notice of its intent to sue Oregon-based developer Michael Barnes for allegedly destroying wetlands during preliminary construction of the development 20 miles east of Missoula.
Barnes' attorney, Alan McCormick of Missoula, said the lawsuit threat isn't warranted.
Barnes and his company, LEMB Co. LLC, have been under scrutiny from both state and private entities since excavation of a large pond began earlier this spring.
The Clark Fork Coalition's notice to sue is a legal requirement under the Clean Water Act, said Matt Clifford, the Clark Fork Coalition's conservation director and staff attorney.
The 60-day notice allows the government to review the situation and potentially develop a solution with the landowner before a lawsuit is filed. Clifford said the notice was sent to Barnes, the U.S. Army Corps of Engineers, the Environmental Protection Agency and others.
“We're preserving our right to file suit,” Clifford said. “We hope the Corps (of Engineers) or the EPA will take up the matter.”
The notice said Barnes' site plan shows a wetland area beneath the footprint of his proposed 36-home development.
Although Barnes doesn't have approval for the development, his construction crew filled in the wetland this spring while laying out roads, utility lines and other infrastructure in anticipation of approval by the county, said the coalition's press release. The Clean Water Act prohibits filling in wetlands without a permit from the Army Corps of Engineers.
“We understand that Barnes has every right to develop his private property,” said Tracy Stone-Manning, the coalition's executive director. “What he does not have a right to do is break state and federal law.”
Barnes' case is particularly disturbing because the developer has shown a pattern of violating legal requirements and seeking approval after the fact, Stone-Manning said.
“It's disappointing to see a developer who thinks he can do whatever he wants now and worry about permits later,” Clifford said. “That's not how most developers do things in Montana.”
McCormick said Barnes has followed the law and obtained the permits necessary to do the work completed so far on the 200-acre parcel.
Construction on the property has centered on the pond, including a haul road and relocation of some existing electric lines, McCormick said.
“They're not building roads for the subdivision,” he said. “That's simply not happening.”
The area the coalition is calling a wetlands is a small holding basin where the previous owners pumped irrigation water, McCormick said. The only time it held water was when the irrigation ditch was running, he said.
McCormick said LEMB Co. hasn't been contacted directly by the coalition.
“I don't really understand this,” McCormick said.
LEMB Co. is currently working to complete its subdivision application for the county, McCormick said. So far, there's no target date for its completion, he said.
The Rock Creek Protective Association sued LEMB Co. in May claiming the company was circumventing county subdivision regulations, digging in the floodplain without a permit and violating state regulations on mining and water quality. That case is still working its way through the courts.
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