A riverfront landowner withdrew his application proposing a controversial boat storage and dock facility on Flathead River from the Flathead Conservation District Tuesday afternoon.
“In a nutshell, I guess I could say that the apparent legal problems that I could encounter because of this – while I think we would ultimately be successful in defending our position – could easily take a year or two,” Pete Rice, the applicant, said. “I’m not willing to be another Bucky Wolford. I don’t have the time, the patience nor the money to go that route.”
The proposed project would have created a commercial marina to launch and store private boats on 25 acres of unzoned, riverfront property on Riverside Road about eight miles upriver from Flathead Lake. When fully constructed, the marina would have included five storage buildings that could store up to 270 boats, three ramps, two 40-foot docks and 90 feet of riprap. Peak use was estimated at 80 boat launches per day.
Rice said he didn’t plan on changing the plans and immediately reapplying. “It’s always an option – I have the right to reapply just like anyone else – but I don’t see that as something I’m going to do anytime soon.”
The proposed marina had drawn significant attention and opposition. Last week, more than 100 people attended a meeting hosted by the conservation district to give the public a chance to speak before the district board took official action on the project’s “310” permit application. Public comment was almost unanimously opposed to the project, with citizens repeatedly voicing concerns over bank erosion, water quality, wildlife and the commercialization of the Flathead River.
“It’s the wrong place for this type of project,” nearby landowner C.M. Butch Clark said. “We’ve worked too hard to take care of this area to see it sold out for a quick buck.”
Even after withdrawing, Rice stood by his project, saying he felt the arguments of those opposing his project went beyond what was legally required.
“The district specifically told people at the meeting at the Hilton that they should confine comments just to the project – the docks, ramps and riparian area of the river that would be riprapped,” he said. “The truth of the matter is that everybody that commented at that meeting didn’t comment on that subject, so the merits or the basis of the project was never really appropriately under consideration in my opinion.”
The project raised the question of what the district, the first of five permitting agencies to look at such a proposal, can take into account when analyzing a property. Traditionally, the conservation district permitting process only reviews the parts of the proposal within the floodplain and only includes information from the core “team” – the conservation district’s board and advisory employees, a Montana Fish, Wildlife and Parks representative and the applicant – when making its final decision.
In the case of this marina, that meant only the 90-feet of riprap, docks and ramps – not the secondary impacts like future shoreline erosion that the public was most concerned with – could be considered. And, because the public is not part of the permitting team, public comment isn’t meant to sway the district’s decision.
But, at last week’s meeting, a neighboring landowner brought up a process for a section of state code rarely used that could give the public a larger role in the process.
That section (75-7-125) allows a person, directly affected by the district’s decision, to challenge the applicability, interpretation or implementation of any provision or rule the district uses, according to the state’s Natural Streambed and Land Preservation Act. For example, if the district addressed the issue of whether it could include secondary impacts, a landowner who disagreed with its decision could petition for a declaratory ruling from the state Department of Natural Resources and Conservation.
The challenge process could reverse a decision or tie the project up in District Court. Rice could also have requested arbitration or a hearing in District Court if the conservation district had ruled against his project.
And for Rice, the chance of spending money and time tied up in court wasn’t a risk he was willing to take. He said he was disappointed the marina wouldn’t be able to help what he sees as a need for affordable river and lake access.
“I think it’s a slippery slope when a small group of generally well-to-do people who own property on the river and want to extend their control over the river can exert influence on permitting agencies looking at projects like mine,” Rice said. “It’s fast becoming a haven for the rich, and the common citizen is losing access to things that are public.”