HOLLAND&HART .. IIIJ 

March 1, 2016 

VIA CERTIFIED MAIL- RETURN RECEIPT REQUESTED 

and VIA E-MAIL 9-AWA-AGC-Part-16@faa.gov 

Office of the Chief Counsel 

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 of Montana and George Ackerson v. City 

of Fort 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 of Montana 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 of the project or seek approval for the project. This statement is false. Complainants 

first formally informed the County of the project on January 8, 2014, when they talked with the 

County Planner. The notes of the 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 Denver Tech Center Billings Boise Cheyenne Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, D.C. 0 
HOLLAND&HARTw ~ Office of the Chief Counsel 

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 of the project and seek approval in various forms, they did so 

early and often. 

In paragraph 46 of the County's Answer, the County states that "Complainants failed to 

comply with at least one of the agreed remedies, which was elimination of the water feature." 

The County misrepresents the agreement with Complainants. In the June 23,2015 letter to the 

FAA from the County, City of Fort Benton ("City"), and Joint Airport Board ("Board"), 

Defendants stated that "Safer Medical drained the water feature/pond of any 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 of water 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 

if a 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 if they 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 of any 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 of the plans for the project and approved of those 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 of the Board, City, and County. 

The County states in response to Paragraph 55, that the "process" of reviewing and 

evaluating leases is "ongoing." However, no such process took place between the date of the 

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 
HOLLAND&HART.e '2 Office of the Chief Counsel 

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 

relief from 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 of his 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 if not by utilizing trucks. 

Complainants will not reply to the remainder of the 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 of Service 

Office of the Chief Counsel 

March 1, 2016 

Page 4 

I hereby certify that I have this day caused the foregoing reply to be served on the 

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 A venue 

P.O. Box 7152 

Havre, Montana 59501 

Attorney for City of Fort Benton 

blilletvedt@bkdlaw.org 

Mitchell A. Young 

Montana Association of Counties 

2717 Skyway Drive 

Suite F 

Helena, Montana 59602 

Attorney for Chouteau County, MT 

myoung@mtcounties.org 

Dated this 1st day of March, 2016. 

8528240_1 
.EXHIBIT A 

7 

/ , 

. 

L 
•U::A 

CEMETERYRD 

USCUM BOTTOM RD 

MT HIGHWAY 387 

RUNWAY 

SIGNAL POINT RD 

TAXIWAY 

r'UK I t:St:.N I UN .. ~ll:iNAL t"' 1/AIKt'UK I AREA 

c _,.-, r .. .-, tr . . 

J ~· '• ...._., ~-~ 

See Page 155 Copyright- Chouteau, Co., MT - 2014 

0 500 1,000 Feet 
Coogle ear

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

.. . . ,.. -. ' ~ 

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.. I 

. .. ' " ..___./ u 
EXHIBIT B 
CHOUTEAUCOUNTYDEVELOPMENTPERN.DT 

APPLICATION FORM 

Name· of Applicant: G&rr:-B-c!f.eLsQ:rl_ 

Mailing Address: n-?a~ ~~bff-Ben-b. /YI(.,.~ Daytime Telephone(s) frJ!a42JiJ.- ~~ 0~ Cell Phone:. ______ _ 

Name of Titleholder: ~ Db for) ~k:jfhiJorbflorudj 

Location of Property: 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:.t Lnfs 

(local area, county road access, county or pritate stgns) 

This Application is for: 

__ Single Family Residence X Commercial Development 

--~Multiple Family Residence ---'Industrial/Utility Development 

--~RV or Mobil Home Court ---'Land Division by Certificate of 

___ Commercial Agriculture , Survey, Deed, or Contract for Deed 

Current use of the property:-:.H_.._· """!l_._l_,.,w"--h.;..___;z M:;;....:_;__ ____________ _ 

The following items relate to requirements of the Chouteau County Development 

Regulations. Please refer to those regulations for the actual requirements. 

a.) Is the site located within the town site ofBig Sandy, Geraldine, Highwood, 

Carter, Lorna, Square Butte or Virgelle? Please specify where: F'o rt Beca,~. 

b.) Is the development adjacent to agricultural lands? _.,~Pfll""" . _____ _ 

If yes, describe the type of agriculture (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, do(~~ 

1 
c.) Describe road access to the development, new dimensions and locations of 

each new road, culvert or bridge, if applicable. ±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, sheriff and medical all weather access. Qc_s a-Jd..re~ 

r;k~ 671 _//; Je v{-5Mn!£,&~(7_-- . / ·ALfie.) Describe the location of new or existing approaches onto existing public 

f.) Describe how maintenance 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 or Montana Dept. ofEnvironmental Quality 

may need to approve the development. Has either office been 

contacted? cr>ll 

2 
h.) Will extensions of existing water or sewer facilities be necessary to serve the 

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

i.) Describe the method of sewage disposal. .J epVM U9 f!{ 07'7; ne:..l \ J / fkn lo ?le -rm, ol/);5, 

j.) Describe the water supply system. 

k.) Describe grading and drainage measures designed to remove storm runoff and 

prevent siltation of surface 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 corridor between 

Fort Benton 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?!..:~~---

3 
The following supplemental documents must be at"U!ched to completed permit form: 

~ 1. A location map, showing the vicinity within which the proposed development is 

located. (Google Maps are accepted) 

_-2. A site map, drawn to approximate scale, showing existing and proposed buildings, 

power lines, utility easements, any access and public roads, culverts, bridges, 

setbacks, parking areas, lot boundaries, proposed septic and drain fields. 

3. Flood Plain information for the proposed site. Historical flooding information is 

acceptable. )./If 

Please sign and date below affirming that the information presented herein is accurate 

and factuaL 

Apph 

9~o'~ ants S1gnature Date 

Property Owners Signature Date 

APPUCA TIONS FOR ANY PERl\DT OR LAND DEVELOPMENT REQUIRES A PREAPPLICATION MEETING WITH THE PLANNING DEPARTMENT STAFF IN OUR OFFICE. 

NO APPLICATIONS Wll.L BE ACCEPTED VIA MAD.., E-Mm.., FAX OR :BY PHONE. 

CHOUTEAU COUNTY WILL NOT BE RESPONSffiLE FOR ANY DAMAGES OR LOSS OF 

ANY TYPE OF PROPERTY FOR ANY 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 

SITE EVALUATIONo0 DOCUMENT# ----

Name: 6eo!JeAc..&sm phone: .ftJ;,tp,g;; -.55'<1,? 

Address: -35 :Sfrdl f?oirt Rs,_a~ ~ 

Parcel Description: }_eb I I; ld,:/W4/if t3 --_-a¥JMf 

total acreage .. · _____ proposed t1se: _____ _ 

soil type:. _________ ground water level: __ 

soil data source: -------------------~~--~-

if new source of wastewater, Non~Deg. Required or Categorical 

Exemption;·-------------------------

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

fuel tank/disposal history: ______________ _ 

.. ' \· I 

. . 
ple0$e provide a detailed drawing of locations of any buildings, water & 

wastewater services~ garbage & fuel storage and or disposal areas- alSo · 

sit ow where storm water flow/drainages are located as well as any open 

bodies of water. 

FLOODPLAIN ASSESSMENT: __ Applicable I 

2C NotApL 

attach designated Floodplain Maps OR (please complete or attach the 

following information if there is not a 100 year floodplain deliniation on 

the waterway).: 1. historical records/photos or statements as to water levels 

during previous floods. 2. Any topographical, survey or GPS information 

and maps from your parcel to existing high water marks. 3. DistatJce from 

river or old channels. 4 Any information or assements of Channel 

Migration or Avulsion Zones. 5.Review of any new structures/construction 

or land modifications since the last major flood event that may impaci the 

route and level ofjloodwaters. 

The information provided on til is form is true and accurate. 

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 ..... j'<ll2.<r-f 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 4 
facility 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 _ __,_{--'~----=""=-=:r----r-...- , 2 o ti_, at 

Montana, good through OC'i I G , 20/\ • 

Dated 

Page 3 of 4 
~ 

-

Dated --~~~~~i;~~~~lu _____ , 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 

ll'li:li:: 

K. 

$0.00 

CLAASSEN CLERK 

B'lr:. 

~RDER 

. ~ ~ 

~ 

TO: FILED DOCUMBBT 
EXHIBIT E 
ARP SOP No. 5.00 

2014 

Effective Date: October 1, 

l certify that the information l have provided above is, to the best of my 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 of the proposed project. 

Name: .SJ; lsc ~-'~ -- ~~--~~~~---------------

Responsible FAA Official 

Date: J'.,..fy 9, ~ t/$'