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Standard view: Consent decree is inadequate and presents legal concerns

Standard view: Consent decree is inadequate and presents legal concerns

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We sincerely wish we could wholeheartedly support the Butte Hill consent decree as it has been presented.

We understand that there is “more in it” for Butte-Silver Bow than the EPA could force the parties to provide under a Unilateral Administrative Order.

We understand and respect the positions of knowledgeable players like Dan Villa, who, we are told, did yeoman work in the (unfortunately secret) negotiations that finally brought about the a consent decree.

We appreciate the recommendation of the Citizens Technical Environmental Committee, although we are disappointed. Because members of that committee, in stating their support, actually outlined a number of things that are inadequate in the decree.

The frustrating thing is that the parties came achingly close to matching the community consensus, but just have not taken the final steps necessary for us to get there.

Yes, we’re talking about the restoration of Silver Bow Creek, from Texas Avenue to the confluence with Blacktail Creek. We cannot understand Atlantic Richfield’s resistance to that restoration in this decree, as it is absolutely the will of the people in this town.

Atlantic Richfield’s resistance has created this problem, and Atlantic Richfield can solve it. They say the one-mile restoration is not remedy, so they cannot do it. But 20 years ago, in the 1999 settlement, they didn’t blink an eye at blending remedy and restoration, which is how the other 25 miles of Silver Bow Creek were done from Butte to Warm Springs Ponds.

Some parties may be comfortable in saying, “Well, we didn’t quite get the creek the people wanted, but look at all we did get.” But that would be wrong — wrong for us to gloss over the lack of the upper creek, and wrong for the Butte-Silver Bow County Council of Commissioners to let it happen.

There is not currently one positive word in the consent decree about restoring Upper Silver Bow Creek between Texas Avenue and Blacktail Creek — just impediments, doubtless crafted by Atlantic Richfield’s attorneys.

In what universe is it logical to leave this first-mile stretch untouched when such elaborate plans have been made and steps taken to restore EVERY OTHER INCH of this watercourse?

And, particularly, how is it logical or prudent for Butte-Silver Bow to flout the law of the land?

Addressing the council, former District Judge Brad Newman made it very clear last week what his “Upper Silver Bow Creek” ruling means. It is not just about the name. It means that that watercourse is “waters of the state.” And that means that under our state Constitution, existing laws and legal precedent, the parties to this decree have responsibilities to all of Silver Bow Creek — which, as Newman suggested, they are expressly abdicating.

Those on the losing side of that lawsuit can wish all they want that Judge Newman’s ruling didn’t say what it says. So can the other parties in the consent decree. But, when the judge’s ruling and everything that was in the 50-page judgment was accepted without appeal, as he just reminded everyone involved, it stands unchallenged as the law of the land.

Not only is the lack of a plan for Upper Silver Bow Creek clearly against the law — it is also highly irresponsible because litigation will ensue. And it will cost the parties, including our local government, dearly to defend a position they were warned in advance is illegal.

We believe it would be far smarter and cheaper to act responsibly.

There are two ways this could be done.

The Council of Commissioners has great power in this circumstance — perhaps more power than it realizes.

The council should not believe that Butte’s only choices are Option A — acceptance as written — or Option B — rejection, resulting in a bare-bones administrative order.

The council could reject the decree as written, but make it clear that it would find the CD acceptable should provision for the creek, as outlined by the recent EPA-funded feasibility study, be included. The negotiators would then have the option of reconvening and doing this right. We believe that is exactly what would take place as all parties have invested too much in this process to walk away from it now.

The second option would be for the negotiators to reconvene before the council vote and reach a separate memorandum of understanding on the creek, outside the CD.

We understand that Gov. Bullock is willing to entertain such a negotiation. What is stopping the other parties from joining him in such an effort?

Particularly in light of the admonition received by the council from Newman last week, either of these paths are fiscally responsible and respectful toward the wishes of the community.

We urge the Council of Commissioners to use its power, before a vote, to set up discussions to deal with any remaining issues, especially Silver Bow Creek. And even more importantly, we urge the negotiators to deal with this problem before the agreement’s inadequacy and illegality force them into a costly court battle.


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