Task force sues county over WOI

Members of the Belle Taine Task Force who had spearheaded the initiative to lower water levels within the Mantrap Watershed are suing the county and county commissioners Floyd Frank, Swede Nelson and Lyle Robinson, individually.

The plaintiffs are asking for recovery of funds totaling $232,000, according to their attorney, Jay Carlson.

The suit alleges the defendants "committed a number of acts of negligence, failed to perform ministerial duties per statute and deprived Belle Taine property owners, the plaintiffs, due process of law," plaintiff John Larson said in a phone interview.

The defendants "misrepresented the facts to us to induce us to take action," he said.

The commissioners, Larson said, "were unjustly enriched by obtaining and retaining the studies, plans and reports without making payment to us."

The plaintiffs include primary guarantors for the bond, Larson and Fred Lundstrom, and contingent guarantors Orville Kraus, John Maczko, Ed Herrmann and Lynn Swaggert.

Robinson, Nelson and Frank "breached promises to follow the law and to objectively rule on the project in return for us agreeing - at their request - to drop our insistence on a direct discharge project," Larson said.

Larson said the defendants can be held privately and/or officially responsible for their actions. "That's for the judge and jury to determine."

Alternatives identified

The Belle Taine Task Force had initially backed the US Army Corps of Engineers' recommendation to construct an outlet for direct discharge to the Crow Wing lakes to mitigate the high water levels. The estimated cost was a manageable $760,000.

But residents on the lower Crow Wing lakes, fearful of the impact, requested an impact study before action was taken.

A Watershed Steering Committee subsequently formed, identifying alternatives. These included infiltration, retention of upstream waters, direct discharge to the Crow Wing chain, moving structures impacted by the high water and doing nothing.

In the fall of 2001, the commissioners determined a Works of Improvement (WOI) to be feasible and of public benefit and directed the Soil and Water Conservation District (SWCD) to conduct further studies. The Belle Taine Task Force was asked to foot the $26,500 bill.

But in March 2002, a Technical Advisory Committee (TAC) formed, conducting closed meetings, despite requests from the task force to sit in as an audience.

In May 2002, the SWCD recommended an infiltration system be constructed on the west end of Belle Taine. The engineering plan was completed in September 2002, the infiltration project expected to cost $2.2 million.

The Belle Taine Task Force, facing sticker shock, asked the TAC to reconvene and reconsider direct discharge into 6th Crow Wing Lake.

But the commissioners reiterated their opposition to direct discharge and instructed the SWCD to reconvene the TAC for a full review of options.

Cost to be spread

According to the complaint, Larson and Lundstrom met with Frank and Nelson in January 2003 at the West Forty. The commissioners asked the plaintiffs to "withdraw the efforts and support for the direct discharge option to the Crow Wing lakes," according to the summons.

Frank and Nelson said they would not support the direct discharge "despite engineering evidence to the contrary," according to the complaint.

At the meeting, Larson and Lundstrom expressed concern regarding the high cost of the infiltration system, the document states.

"Commissioners Frank and Nelson advised the plaintiffs they had a plan to handle the high costs and that it was their intention to spread the cost throughout the entire Mantrap Chain," the complaint states.

"Why do you think we sent out 1,800 notices?" Frank had stated, according to the complaint.

The commissioners told Larson and Lundstrom the county board "has experience dealing with political issues associated with expensive projects, and that they had sufficient support from Robinson and possibly one additional commission member (presumably Cal Johannsen) to 'push through the infiltration option at the Hellkamp Creek site,'" the complaint states.

The plaintiffs were assured the project would be "expedited" if they'd drop their insistence on the direct discharge option to the Crow Wing lakes.

"Frank stated if the direct discharge option is abandoned, the commissioners would 'carry the ball' and get the project done, provided all necessary bond funds were raised by petitioners," the complaint states. The Belle Taine Task Force subsequently raised the bond funds.

In March 2003, the task force, "based on assurances from Frank and Nelson, together with the open and public support of Commissioner Robinson, notified the Hubbard County commissioners and SWCD that they would proceed with the infiltration option for the Works of Improvement."

Politics irrelevant

When the public hearing reconvened in July 2003, the commissioners voted to proceed, with Dick Devine and Nelson voting in opposition.

The complaint states that during a July 16, 2003 discussion "Frank expressly and affirmatively stated" to Larson and Lundstrom "that if the cost of the project as determined by the viewers was less than the benefits to be received, the commissioners were advised by legal counsel that Hubbard County would be required by statute to order the project established."

The plaintiffs were allegedly told by Frank, with Robinson ostensibly concurring, that "the final decision would not be based on politics, but made on engineering plans and evidence presented at the hearing, without emotion or public pressure."

Based on the statements, the Belle Taine petitioners posted the bond to pay for final engineering plans, designs and a viewers' report.

They asked for confirmation on the stated precept that if the benefits of the project exceeded the cost, the commissioners would be required by law to establish the project. Robinson and Frank confirmed this, according to the complaint.

But just prior to the final hearing, Lundstrom and Larson discussed with Robinson and Johannsen how the commissioners would deal with opposition to the cost and assessments.

According to the complaint, "Robinson indicated that perhaps the best thing to do would be for the commissioners to vote against the project for some arbitrary reason, after which Belle Taine Task Force could appeal the decision in court and get the project done without being blamed."

The Aug. 13 and 14, 2004 public hearings drew hours of objections from affected property owners, despite the viewers' determination that the "benefit exceeded the cost by more than $20 million."

In October, citing strong opposition from upstream residents, the commissioners sounded the death knell on the project, voting to accept neither the viewers' report or to establish the Works of Improvement project.

The defendants in the matter are being charged with negligence, failure to perform ministerial duty, denying a fair and impartial decision on the project and negligent misrepresentation.

The defendants are also being cited for unjust enrichment, regarding the commitment of funds for the project.

"The breach of promise by the defendants to afford due process of law to the plaintiffs by the county of Hubbard and by Robinson and Frank has caused damage to the plaintiffs in the sum of $232,189 and an award of damages for the funds expended is required to prevent injustice," the complaint states.

A jury trial and change of venue will be requested. This is "based on the grounds the plaintiffs do not believe an impartial jury can be impaneled in Hubbard County because 2,000 notices of possible tax assessments were sent to Hubbard County property owners by the defendants."