Horse Creek Hills Litigation Update

Last August 2022, Upper Missouri Waterkeeper and several of its members filed a lawsuit complaint against both Broadwater County and the Department of Natural Resources and Conservation (DNRC) for their approval of the Horse Creek Hills subdivision, a major new phased subdivision reliant on exempt from review wells for water supplies. The County and Department failed to perform their respective duties to adequately consider impacts and protect water and land resources from unreasonable degradation under the Montana Subdivision and Platting Act and the Montana Water Use Act. 

A year and several court documents later (see the full timeline below), we’re now preparing for oral arguments. But first, let’s take a step back and recap the Horse Creek Hills subdivision and why it’s a bad deal for the community, water resources, wildlife, and local agriculture.  

Horse Creek Hills is a 4-phase 435-acre major new subdivision sited on the eastern shore of Canyon Ferry Lake in Broadwater County. The site is a rural, predominantly agricultural landscape that borders both state and Bureau of Reclamation lands and is adjacent to Confederate Creek, an important spawning ground for rainbow trout. The development includes four subdivisions with a total of 39 residential lots and two commercial lots that are likely to become a gas station and convenience store.

The HCH subdivision received an unprecedented volume of public opposition in Broadwater County’s planning process, due in part to the incoherent and often stunted review of the new subdivision’s potential impacts. The larger agricultural community was rightly concerned as not only did the proposed subdivision fly in the face of the county growth plan, but it represented a major change of land use in the region. Whether it was County public works opining on the considerable change in anticipated road intensity and safety concerns about winter driving and blind turns in the countryside, the sheriff’s opinion on similar public safety and emergency access issues, particularly during winter on narrow county roads, or neighbors concerned about keynote wildlife habitat, traditional hunting, or their ability to run livestock across local roads to access stockwater and range, the HCH subdivision raised far more questions than answers. 

The HCH subdivision opposition didn’t just entail local landowners, either. The Montana FWP Fisheries biologist provided expert feedback stating that any exempt well use was likely to further dewater adjacent Confederate Creek. And the Broadwater Conservation District sent two formal letters expressing natural resource concerns and urging the County to do its homework to evaluate impacts before decisionmaking.

Part of the largest public outrage concerned both Broadwater County and DNRC refusing to evaluate cumulative water resource impacts off-site. The HCH subdivision’s 39 residential lots and 2 commercial lots received DNRC approval to use aggregated exempt wells (a total of 5x exempt wells despite the law only allowing 1 exempt well per subdivision), yet there was no analysis of the potentially significant offsite dewatering impacts, or of unavoidable offsite impacts to agricultural operations, to local wildlife, or to public health and safety. DNRC’s approval of new exempt wells ignored the fact that best available science shows potential dewatering on adjacent Confederate Creek, prime rainbow trout spawning grounds, and neglects potential dewatering impacts on nearby senior water rights holders, many of which have owned water rights since the late 1800s. 

Similarly, the approval of dozens of new subdivision septic systems dismisses the fact that pollution will flow to Canyon Ferry Reservoir, a waterbody already struggling with nutrient pollution problems and algal blooms so much so that it is designated as a legally impaired waterway on the state’s Water Quality Integrated Report. In sum, the HCH subdivision presented a perfect storm of an inadequate preliminary plat application, unlawful expert agency authorizations of exempt wells, and a failure of local government to meaningfully consider a plethora of significant potential impacts on the surrounding community. 

The Subdivision and Platting Act is not just a “rubber-stamp” state law; it also plainly contemplates and gives local governments the ability to deny subdivisions that simply don’t work for local communities and where impacts are so substantial that they cannot be mitigated. Unfortunately, in the case of HCH subdivision the County appeared dead-set on approving the development despite overwhelming community opposition, significant problems not the least of which was a lack of legal water availability, and despite the inability to meaningfully mitigate a variety of significant negative impacts on water, wildlife, public safety, or the natural environment.

For more background information on the HCH subdivision, click here.

To summarize, the legal issues at play here are:

  1. Broadwater County failed to gather available groundwater information, violating MCA § 76-3-603.
  2. The County failed to perform the required analyses of the potential impacts of HCH on agriculture, water use, the environment, wildlife, and public health and safety (violation of MCA § 76-3-608).
  3. DNRC signed off on the use of aggregated exempt wells without examining the impacts and degradation potential, an illegal interpretation of the law (ARM 36.12.101(12) and violation of the Montana Water Use Act.
  4. Broadwater County’s reliance on DNRC’s unlawful interpretation of the law to meet the requirements of the Subdivision and Platting Act and ultimately approve the HCH subdivision was arbitrary and capricious.

Wondering what’s been going on behind the scenes in the court for the last year? Here is a full timeline of all legal documents filed and actions taken since the lawsuit was initially filed:

  • August 26, 2022: UMW and members filed the lawsuit against Broadwater County and the DNRC.
  • March 9, 2023: Court grants Horse Creek Hills developer intervention.
  • May 4, 2023: Intervenor files a Motion for Declaratory Judgment
  • July 19, 2023: Plaintiffs file a Motion in Limine to exclude the testimony of the Intervenor, which attempted to defend decision-making after-the-fact. 
  • July 27, 2023: District Court ruled and granted plaintiffs’ limine motion, striking improper expert reports filed by the Intervenor and declaring that the Intervenor’s evidence is not relevant to the Court’s determination. 
  • July 28, 2023: Plaintiffs file Motion for Summary Judgment and supporting brief.
  • July 28, 2023: Broadwater County filed its own motion for summary judgment and supporting brief
  • July 31, 2023: Court issues order denying Intervenor’s Motion for Declaratory Judgment. 
  • August 18, 2023: Plaintiffs’ file a reply brief in opposition to Broadwater County’s Motion for Summary Judgment.
  • August 18, 2023: Broadwater County files Response Brief in Opposition to Plaintiffs’ Motion for Summary Judgment.
  • August 23, 2023: Broadwater County files Motion to Strike Plaintiffs’ “Unpled Legal Theories” and supporting brief.
  • September 1, 2023: Plaintiffs’ file a response to DNRC’s Reply in Opposition to Plaintiffs’ Motion for Summary Judgment.
  • September 1, 2023: Broadwater County files a Reply Brief in Opposition to Plaintiffs’ Response to County’s Motion Summary Judgment and a Reply Brief to Intervenor’s Response to County’s Motion for Summary Judgment.  
  • September 6, 2023: Plaintiffs file a Brief in Opposition to Broadwater County’s Motion to Strike.
  • September 7, 2023: Plaintiffs filed a reply brief in support of Motion for Summary Judgement regarding DNRC’s water claims.

Whew!

Now that briefs on all claims have been filed, we have a hearing and oral argument session scheduled for February 9, 2024 at 10:30am in at Broadwater County District Court (515 Broadway Townsend, MT) where we’ll make our arguments with the ultimate goal of voiding Broadwater County’s unlawful HCH subdivision approval and DNRC’s unlawful approval of exempt wells. Stay tuned!