# HOLLAND&HART
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# IIIJ

March 1, 2016



### VIA CERTIFIEDMAIL- RETURNRECEIPTREQUESTED and VIA E-MAIL 9-AWA-AGC-Part-16@faa.gov
Office ofthe ChiefCounsel Attention: Sharon Long AGC- 600 Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Adrian A. Miller Phone (406) 896-4612 Fax (406) 206-0081 AAMiller@hollandhart.com

Re: Part 16 Complaint: Safer Medical ofMontana and George Ackerson v. City ofFort Benton, Montana, Chouteau County, Montana, and Chouteau County Joint Airport Board FAA Docket No. 16-15-12

To Whom it may concern: Pursuant to 14 CFR § 16.23(e), Safer Medical ofMontana and George Ackerson ("Complainants") file this Reply to Chouteau County, Montana's ("County") Answer to the Complaint in the above-referenced docket. In Paragraph 11 ofthe County's Answer, the County stated that it "lack[s] knowledge of the specific time period during which the project commenced as the Complainants did not notify the County ofthe project or seek approval for the project. This statement is false. Complainants first formally informed the County ofthe project on January 8, 2014, when they talked with the County Planner. The notes ofthe County Planner are attached hereto as Exhibit A. As shown by various other entries in these notes, Complainants frequently spoke with the County and the County conducted several site visits in 2014 alone. Additionally, on March 15, 2014, Complainants submitted to the County a Development Permit Application Form, which is attached hereto as Exhibit B. That same day, Complainants submitted an Environmental

Holland& Hart LLP Phone [406]252-2166 Fax [406]252-1669 www.hollandhart.com 401 North 31st Street Suite 1500 Billings, MT 59101 Mailing Address P.O. Box 639 Billings,MT 59103-0639 Aspen Boulder Carson City Colorado Springs Denver DenverTech Center Billings Boise Cheyenne Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, D.C. 0

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# ~ Office ofthe ChiefCounsel March 1, 2016 Page 2
Services form to the County, attached hereto as Exhibit C. Finally, on September 16, 2014, Complainants submitted and the County granted a Permit for Road Encroachment for the construction, attached hereto as Exhibit D. As Exhibits A through D show, not only did Complainants notify the County ofthe project and seek approval in various forms, they did so early and often. In paragraph 46 ofthe County's Answer, the County states that "Complainants failed to comply with at least one ofthe agreed remedies, which was elimination ofthe water feature." The County misrepresents the agreement with Complainants. In the June 23,2015 letter to the FAA from the County, City ofFort Benton ("City"), and Joint Airport Board ("Board"), Defendants stated that "Safer Medical drained the water feature/pond ofany water in the week of June 15. Safer Medical has further agreed to fill in the water feature and make sure that all necessary precautions are taken to prevent any gathering and/or collection ofwater in the future." Compl., at Ex. D. Complainants did, in fact, drain the water feature (a fountain) and filled it in with pallets to ensure that water does not collect in it. Therefore, Complainants complied with the requirements the Board requested at that time. However, Mr. Nye's May 20,2015 letter stated that the fountain may potentially remain ifa Wildlife Hazard Assessment and ADO review identify it as in compliance with AC 150/5200-33B Hazardous Wildlife Attractants On or Near Airports. Compl., at Ex. B. Complainants already met the first requirement to keep the pond when they received approval of their Categorical Exclusion (Environmental Review) from the FAA, attached hereto as Exhibit E. However, Complainants have not undertaken the Wildlife Hazard Assessment at this time because they do not know ifthey will even have access to the property in the future due to the 1998 Agreement. Complainants have and will continue to ensure that water does not collect in the pond in the interim. The County's response to paragraph 4 7 - that it was not aware ofany plans for the project- is incorrect for the same reasons that its response to paragraph 11 was incorrect. The County was aware from an early date ofthe plans for the project and approved ofthose plans. The "writing" referred to in paragraph 48 that the County is "not aware of' is the letter from Complainants' lawyer that the County attached to its June 23, 2015 letter to Mr. Nye. See Compl., at Ex. D. Complainants drafted the letter at the request ofthe Board, City, and County. The County states in response to Paragraph 55, that the "process" ofreviewing and evaluating leases is "ongoing." However, no such process took place between the date ofthe letter where the County told the FAA it would undertake this review (June 23, 2015) and the date Complainants filed this action (November 29, 2015)
. To the extent any process is "ongoing," it does not appear that it was even initiated until Complainants brought the Complaint here. Thus, eight months after the County promised the FAA to review and evaluate other leases for

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# '2 Office ofthe ChiefCounsel March 1, 2016 Page 3 compliance with the Airport Assurance, the County has apparently not completed the process (if it was ever even started). In response to paragraph 59 in the Complaint, the County states that it is "speculative" as to whether Complainants' Lease is subject to renewal because "Mr. Nye is not the final authority on whether the agreement can be amended." This is certainly news to Complainants. Neither the Board, the County, nor the City has ever indicated that it would do anything other than comply with Mr. Nye's conclusions. After Mr. Nye sent his October 1, 2015 correspondence stating that the lease could not be renewed, the Board informed Complainants that the lease would never be renewed. There has never been any discussion with Complainants about seeking relieffrom the 1998 Agreement from someone other than Mr. Nye. Similarly, the County answers that paragraph 60 is speculative and vague. Complainants have alleged that they will be effectively prohibited from accessing or utilizing the Hangar in the future. Unless the County is agreeing to ignore the 1998 Agreement and Mr. Nye's conclusions, Complainants do not know how this statement is "speculative." The Complainants' lease will expire, the Defendants cannot renew it because ofthe 1998 Agreement, and the Complainants will not have access to their Hangar. The County has admitted that Mr. Taylor sells agricultural chemicals out ofhis hangars, but denies that large trucks are frequently at Mr. Taylor's hangar to obtain the chemicals in paragraph 74. The chemicals are sold to farmers who apply the chemicals to their land with ground rigs. It is unclear how the County believes those farmers obtain the chemicals from Mr. Taylor ifnot by utilizing trucks. Complainants will not reply to the remainder ofthe County's Answer at this time, but specifically reserve the right to submit evidence disputing the County's responses in the future. Sincerely,

.

Adrian A. Miller
AAM/asf

# HOLLAND&HART-IIIJ

Certificate ofService Office ofthe ChiefCounsel March 1, 2016 Page 4

I hereby certify that I have this day caused the foregoing reply to be served onthe following persons at the following addresses by first class mail, postage prepaid, with courtesy copies by electronic mail: Brian Lilletvedt Bosch, Kuhr, Dugdale, Martin & Kaze, PLLP 3 3 5 Fourth Avenue P.O. Box 7152 Havre, Montana 59501 Attorney for City ofFort Benton blilletvedt@bkdlaw.org Mitchell A. Young Montana Association ofCounties 2717 Skyway Drive Suite F Helena, Montana 59602 Attorney for Chouteau County, MT myoung@mtcounties.org
Dated this 1st day ofMarch, 2016
.

8528240

_1

# .EXHIBIT A

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# . L•U::A CEMETERYRD USCUM BOTTOM RD MT HIGHWAY 387 RUNWAY SIGNAL POINT RD TAXIWAY 

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## I AREA 

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See Page 155 Copyright- Chouteau, Co., MT
- 2014 0 500 1,000 Feet

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# feetr==========~-4oo rretersl- 100



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# EXHIBIT B

## CHOUTEAUCOUNTYDEVELOPMENTPERN.DT APPLICATION FORM Name·ofApplicant: 

# G&rr:-B-c!f.eLsQ:rl_ MailingAddress:

# n-?a~**~~bff-** Ben-b.

# /YI(.**,. ~**  Daytime Telephone(s)

# frJ!a42JiJ.-**~~ 0~**  Cell Phone:

. ______ _ Name ofTitleholder:

# ~ 

# Db for)

# ~k:jfhiJorbflorudj Location ofProperty: Section 

## l).-13 Range 

# t!f£

# Township_T._._~E:>'=t/-+--L>j.._____ _ Other location

# de~ription: J:..D-f S

# ~L 

# /i0.**5t.J~** 

# bf 16 

# ;ar,z:.tLnfs (local area, county road access, county orpritate stgns)
This Application is for:

__ Single FamilyResidence 

# X Commercial Development**--~Multiple** FamilyResidence ---'Industrial/UtilityDevelopment**--~RV** orMobil Home Court ---'LandDivisionby Certificate of

___ Commercial Agriculture , Survey, Deed, or Contract for Deed Current use ofthe property:-:.H_.._ · """!l_._l_,.,w"--h.;..___;z 

### M:;;....:_;__

____________ _

The following items relate to requirements ofthe Chouteau County Development Regulations. Please refer tothose regulations for the actual requirements. a.) Is the site located within thetown site ofBig Sandy, Geraldine, Highwood, Carter, Lorna, Square Butte orVirgelle? Please specify where: 

## F'ort**Beca,~ .**  b.) Is the development adjacent to agricultural lands?**_., ~Pfll"""** **.** _____ _ Ifyes, describe the type ofagriculture (dry land crop, irrigated, livestock rangeland). List any measures to prevent adverse impact on waters for irrigation or livestock, or irrigation facilities.do/ 

## hrocl O....C..yj)..SS

## ~vV(f---' a_bur,o

# ().Aff~ \fUX\W(j,

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### c.) Describe road access tothe development, new dimensions and locations of eachnew

### road, culvert orbridge, 

### ifapplicable. 

# ±boy**3YJ~j** 

# {p

# ~**,a~l'~t!ttbrJ:>ezfo** 

# s4

d.) Describe how access roads to the development from public roads will provide

. 

### .**~** 

### fire suppression, sheriffandmedical 

### all weather access. 

# Qc_s**a-Jd..re~** 

# _//;

. / ·ALfi**r;k~** 671 

# Je**v{-5Mn!£,&~(7_--**
e.) Describe the location of new or existing approaches onto existing public



### f.) Describe howmaintenance will be provided for access and interior roads, and who will provide the maintenance

. 

### .Je

# f/-**m&f/T?~cg>** 

# ti $d'f-e__

g.) The Chouteau County Sanitarian orMontana Dept. ofEnvironmental Quality may need to approve the development. Has either office been
contacted?

# cr>ll

2

### h.) Will extensions ofexisting water or sewerfacilities be necessaryto serve the proposed

# development?___!.~-=---o_**---t:.U!J~ ~=f** **....!: L&Jg=!.cid~~e.~-.S"'-tl--F~~!:::::.,_----**  =.J I 

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i.) Describethe method ofsewage disposal. 

### .J 

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# 07'7;ne:..l \ 

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# fkn lo 

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### j.) 

### Describe the water supply system
.

k.) Describe grading and drainage measures designed to remove storm runoffand prevent siltation ofsurface waters. If

### by any waterway, has the Chouteau County Conservation Dist. been contacted for

## permits?-L~JA(..~:.ftL-------

1.) 

### Is the development located within the Wild and Scenic river corridorbetween FortBenton and Coal Banks

# Landing?**_fu.~(L.:CA~--- ----** **--**
m.)Is the development located within the Wild and Scenic River corridor between Coal Banks Landing and the eastern Chouteau County

# boundary?!..:~~---

3The following supplemental documents mustbe at"U!ched to completed permit form:**~** 

### 1. A location map, showing the vicinity within whichthe proposed development is located. (Google Maps are accepted) 

### _-2. A site map, drawn to approximate scale, showing existing 

### and proposedbuildings, power lines, utility easements, any access and public roads, culverts, bridges, setbacks, parking areas, lotboundaries, proposed septic and drain fields. 3. FloodPlain information for theproposed site. Historical flooding information is acceptable. 

# )./If

Please sign and date below affirming thatthe information presented herein is accurate and factuaL

# 9~o'~ Apph ants S1gnature Date
Property Owners Signature Date

APPUCATIONS FOR ANY PERl\DT ORLAND DEVELOPMENT REQUIRES A PREAPPLICATION MEETINGWITH THEPLANNING DEPARTMENT STAFFIN OUR OFFICE. NOAPPLICATIONS Wll.LBE ACCEPTED VIA MAD.., E-Mm.., FAX OR :BY PHONE. CHOUTEAU COUNTY WILL NOT BE RESPONSffiLE FOR ANY DAMAGES ORLOSS OF ANY TYPE OFPROPERTY FORANY PERSON OR PERSONS WHO BlJll.J) IN A FLOOD PLAIN AREA.

4

# EXHIBIT C

# CHOUTEAU COUNTY**E~O~NTALSERVICES** 

## Fort Benton, Montana 59442 406-622-3016 

# SITEEVALUATIONo 0 

### DOCUMENT#



# ---- Name: 

# 6eo!JeAc..&sm phone: 

# .ftJ;,tp,g;; -.55'<1,? 

## Address: 

# -35

# :Sfrdl f?oirt**Rs,_a~ ~**  ParcelDescription: 

# }_eb I

# I; ld,:/W4/if 

# t3

# --_-a¥JMf
total acreage.. · _____proposed

## t1se:

_____ _ soil type:.
_________ 

## groundwater level:

__
soil data source:**-------------------~~--~-**



## if new source of wastewater,**Non~Deg.** 

## Requiredor Categorical 

## Exemption;·-------------------------
household

## or business 

## waste disposal:--"=.;::;e,p... ·**~qs;<"J.--A-L.__**___ _ 

### fuel tank/disposal history:

______________ _ .. '\· I 

# . .

## ple0$eprovide 

## adetailed drawing of 

## locations of any 

## buildings, water & 

## wastewater**services~** 

## garbage & 

## fuelstorage andor disposal areas- alSo · sitow where storm water flow/drainages are locatedas well as any open 

## bodies of water. FLOODPLAINASSESSMENT:

__ 

## Applicable I

## 2C NotApL attach designated Floodplain Maps OR (please complete or attach the following information if 

## there is 

## nota 100year floodplain deliniation on the waterway).: 1. 

## historical records/photos orstatements as to water levels duringprevious floods. 2. Any

## topographical, survey or GPS 

## information andmaps from yourparcel to existing high watermarks. 3. DistatJce from river or oldchannels. 4 Any 

### information 

## or assements 

## of Channel 

## Migration orAvulsion

## Zones. 5.Review of any newstructures/construction or landmodifications

## since the last 

## major flood 

## event that may impacithe route and

## level ofjloodwaters.



## The informationprovidedon tilis 

## form is true andaccurate.

# Signature:G~**o"l~** L date:

# drs/~oti Sanitarian/Engineer' signature:

____________ _ Approved:

___Dissapproved

__ _ date:

--------

# EXHIBITD

### APPLXCATION AND PERMXT FOR ROAD 

### ENCROACHMENT ON CHOUTEAU COUNTY**ROADS/RIGBT-OF-WA~** hereby grants conditional authorization to of 

### St\,P<iQ 

### f'\
."J:.oca'\c (Company), 

## c- d (address, city, state, zip), (telephone#), hereinafter referred to as PERMITTEE, to trench through or encroach upon a Chouteau County public roadway or right-of-way**C~M.f** I 'IR-1. €<61\.A (road name or number) located in Section**S~c::...** 

## 13 , Township 

### 0$':1 iJ , Range 

### --e&',_;f"._-

__ _ Permittee is doing work for**~A** 

### Fz/2_ ("\ 

### 7.0+-c A-t {Company), 

### C

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### ftr**~U~Sffv..I(Person), ~u**  

### i; 75S2;'ij2!telephone #}. The following conditions will be binding upon Permittee and are hereby acknowledged and accepted by the execution of this application and permit. 1. The Chouteau County Road Supervisor will

_ be notified two working days before the start of work and all work will be done under the supervision of the Road Supervisor. 2. Any blacktop roads and all elevated gravel roads shall be· bored first and if unable to be bored, may be cut. 3. The cut shall not be more than 

### /d. in width; not less than 

# t 5( in depth, for the purpose of 

### WAJ: I& L I bJ E 

# Ecr**~** M.. 

### C?-0 L
- C<>!A.&S 

### I , and will not obstruct traffic for more than fifteen ( 15) minutes per day. If construction work exceeds fifteen (15) minutes, a detour must be provided. 

### 4. The cut shall be back filled to the level of the adjoining roadway in layers and compacted adequately to prevent settling. Road shoulders will be replaced as nearly as possible to the original contour of t he road

. All excess material and debris shall be removed· from the site.5. The Permittee will follow accepted procedures for flagging, flares, and any other means necessary for the protection of the public during the construction period. 6. The holder of this permit agrees to restore the road/right-ofway to its original condition , including gravel, if applicable providing maintenance , filling and continual restoration until such time as the disturbed portion of the road is settled and returned to compaction equal to its original density and prior appearance. 7. Adequate drawings or sketches showing the existing and/or Page 1 of 4

### proposed location of the utility facilities within the right-of-way shall accompany this permit. 8. Underground utilities will be appropriately marked. 9. Signing. The Permittee must comply with MUTCD (Manual on Uniformed Traffic Control Devices), Chapter VI "Traffic Controls for Street and Highway Construction Maintenance and Utility Work Zone Safety." 10. Roads/Highways and Drainage. If the work done under this permit interferes in any way with the drainage of the County Road affected, Permittee shall, at the Permittee's expense, make such provisions as the County may direct to remedy the interference. 11. Rubbish and Debris. Upon completion of work contemplated under this permit, all rubbish and debris shall be immediately removed and the roadway and roadside left in a neat and presentable condition

. satisfactory to the County. 12. Inspection. The installation authorized by this permit shall be in compliance with the attached plan and the conditions of this permit. The Permittee may be required to remove or revise the installation, at sole expense of Permittee, if the installation does not conform with the requirements of this permit or the attached plan. 13. County's Right Not To ·se Interfered With. All changes, reconstruction or relocation shall be done by Permittee so as to cause the least interference with any of the County's work, and the County shall not be liable for any damage to the Permittee by reason of any such work by the County, its agents, contractors or representatives, or by the exercise of any rights by the County upon the roads/highways by the installations or structures placed under this permit. 14. Maintenance At' Expense Of Permittee. Permittee shall maintain, at its sole expense the installations and**struc~ures** 

### for which this permit is 

### granted, in a condition satisfactory to the County. Permittee will be responsible for maintenance for one year after work is completed. 15
. County To Be Reimbursed For Repairing Roadway. Upon being billed therefore Permittee agrees to reimburse County within thirty (30) days for any expense incurred in repairing surface of roadway due to settlement at installation, or for any other damage to roadway as a result of the work performed under this permit. 16. The Permittee shall not discharge or cause discharge of any hazardous or solid waste by the installation or operation of the Page 2 of 4facility of a County Right-of Way. 17. The Permittee will control noxious weeds within the disturbed installation area for two (2)**yea~s.** 18. The use of explosives is prohibited for the installation. 19. Any condition of this permit shall not be waived without written approval of the County Commissioners. 20. County Saved Harmless From Claims. in accepting this permit, the Permittee, its successors or assigns, agree to protect the County and save it harmless from all claims, actions or damage of every kind and description which may accrue to, or be suffered by, any person or persons, corporations or property by reason of the performance of any such work, character of materials used, or manner of installations, maintenance and operation, or by the improper occupancy of said rightof-way, and in case any suit or action is brought against the County and arising out of, or by reason of, any or the above causes, the Permittee, its successors or assigns, will, upon notice

. to it of the commencement of such action, defend te same at its sole cost and expense and satisfy the judgment which may be rendered against the County in any such suit or action. 21. County Not Liable For Damage To Installations. In accepting this permit, the Permittee agrees that any damage or injury done to said installation or structure, by a contractor working for the County, or by any County employee engaged in construction, alteration, repair maintenance or improvement of the county road, shall be at the sole expense of the Permittee. · 22. Proof Of Liability Insurance. The Permittee must file proof of liability insurance to satisfy the conditions of Paragraph 20. That insurance must be in an amount sufficient to satisfy the County, and may vary according to the extent of the encroachment. 23. Revocation. This permit may be revoked by the County upon giving Permittee ten (10) days notice by ordinary mail, directed to the address shown above. The County reserves the right to revoke this permit immediately upon giving notice in the event Permittee breaks any of the conditions or terms set forth herein. ---..::"S::::....c.:_.:...( 

## PT
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## I G , 20/\ • Dated

Page 3 of 4**~** 

# - Dated

## --~~**~~~i; ~~~~l** **u** 

# _____, 2of4 , at Fort Benton, Montana. 

### CHOUTEAU COUNTY COMMISSIONERS

Chairman

Page 4 of 4**~· 46~608** 

# {nu~~ 

# beorge**~rJq_r.san** 

# ::ri u**H~;~ ,** 

# _, ,_ SAFE 'K 'f(\BOi!:C.hL

468608 ENCROACH Page s: 5 STATE OF MDN'l'ANA CHOUTEAU COUN'N RECORDED: 09/16/2014 4:55 KOI: ENCROACH LANA K. CLAASSEN CLERK**~RDER ~**  ll'li:li:: $0.00 B'lr:

. .**~ ~**  TO: FILED DOCUMBBT

# EXHIBIT EARP SOP No. 5.00 2014 Effective Date: October 1,

l certify that the information l have provided above is, to the best ofmy knowledge, correct. I also recognize and agree that no construction activity, including but not limited to site preparation, demolition, or land disturbance, shall proceed for the above proposed project(s) until FAA issues a final environmental decision for the proposed project(s) and until compliance with all other applicable FAA approval actions (e.g., ALP approval, airspace approval, grant approval) has occurred. Signature:

_ . George Ackerson

_________________ _ Date: 4/22/2014



## ---------------- FAA Decision Having reviewed the above information, certified by the responsible airport official, it is the FAA's decision that the proposed project (s) or development warrants environmental processing as indicated below. 

## v' No further NEPA review required. Project is categorically excluded per (cite applicable 1050.1ECATEX that applies)**]/0~ 310~**  An Environmental Assessment (EA) is required. An Environmental lmpact Statement (ElS) is required. The following additional documentation is necessary for FAA to perform a complete environmental evaluation ofthe proposed project.

Name: 

## .SJ;

# lsc**~-'~ --** **~~ --** **~~~~ ----** **-------- ---**  Responsible FAA Official

Date: J'.,..fy 

### 9,**~** t/$'