The Lowdown

Furcation

2012-01-20T17:00:00.000-07:00

Readers, I will be out of the office and incommunicado for the next week as I embark on my regularly scheduled annual furlough from the Great Falls Tribune.
I will return to the office on Jan. 30. In the meantime, I will not be checking or responding to any e-mails or voicemail messages.
If you need to reach someone in the Great Falls Tribune office contact Scott Thompson at 406-791-1482.

Ethics official resigns amid allegations

2012-01-17T21:16:00.001-07:00

The state's top elections and ethics enforcement official resigned late Tuesday amid allegations that he improperly used his state office and computer to conduct private law practice business on state time.

Commissioner of Political Practices Dave Gallik told the Tribune that he informed Gov. Brian Schweitzer of his decision to resign after learning that his staff in the commissioner's office called the police Tuesday.

Gallik said he did not know why the staff called police while he was out of the office.

The Tribune on Sunday reported allegations made by all four members of the commissioner's office that Gallik was fudging state time sheets and logging state pay for hours spent working on private practice matters, a charge Gallik denied.

Tuesday marked the first business day the commissioner's office was open following the Martin Luther King, Jr. holiday and the publican of allegations in Sunday's Great Falls Tribune.

Gallik said he "did not say one word" to his staff on Tuesday when he arrived at the office.

"I can't afford to have more false accusations. They're calling the cops and I didn't say a word," Gallik said in an interview shortly after telling the governor that he planned to resign.

Gallik called his staff's accusations against him "a political, Republican-based fight against me."

In a series of interviews with the Tribune the commissioner’s staff claimed Gallik regularly used state resources to conduct his private practice. They alleged that Gallik was logging hours on the state payroll when he was actually out of the office and working on private practice business. Gallik denied the allegations and said he often did commissioner's work from his private office.

The attorney representing the four members of the commissioner's staff did not immediately return a phone call seeking comment.

For more read tomorrow's Great Falls Tribune.

Staff accuses ethics official of violations

2012-01-15T14:37:00.000-07:00

From left, Julie Steab, Kym Trujillo, Mary Baker and Karen Musgrave, who work in the Office of the Commissioner of Political Practices, have documented alleged time and office misuse by their boss, Dave Gallik, commissioner of Political Practices. TRIBUNE PHOTO/LARRY BECKNER

(Since we’re having trouble wit the link on the Tribune website I’ve gone ahead and uploaded the story to The Lowdown.)

HELENA -- The staff members in the Office of the Commissioner of Political Practices say their boss, the state’s political campaign ethics and finance enforcement official, has been conducting private business from his state office since his appointment in May.

All four permanent staff members of the commissioner’s office told the Tribune Capital Bureau in interviews last week that Commissioner Dave Gallik — who was appointed by Gov. Brian Schweitzer in May — has spent nearly as much time in his state office tending to his private law practice as doing official political-practices work.

“Dave Gallik has been committing ethics violations since he got here,” said Mary Baker, program supervisor for the commissioner’s office. “He has been doing private-practice attorney work in the commissioner’s office since the day he walked in.”

The commissioner’s staff said Gallik, who earns $57,689 per year as commissioner, also has been fudging time sheets and clocking state time he hasn’t actually worked, an act they described as “stealing from the taxpayers.”

Gallik, in an interview Thursday, denied the allegations.

A former Democratic member of the state House who lost a primary bid for the state Senate in 2010, Gallik said his staff members — all of whom were hired before he was appointed — do not like him because he is “different” from past commissioners.

“The folks around here aren’t used to someone like me,” Gallik said. “What it boils down to is we have classified employees who come in here and work eight hours a day, and former commissioners who had no political background and no legal background. So it’s different.”

But Baker, along with fellow staff members Julie Steab, Kym Trujillo, and Karen Musgrave, told the Tribune their complaints against Gallik stem from the fact he isn’t doing the job he was appointed to do and is instead focusing much of his time and energy on his private practice.

Gallik said nothing he has done violates the law governing his office, which says a commissioner may not “hold another position of public trust or engage in any other occupation or business if the position … interfere with or is inconsistent with the commissioner executing the duties of the commissioner’s office.”

Gallik admitted he isn’t in the office as much as previous commissioners, but he said that even while out of the office he is doing commissioner work, often at his private office.

“It was never a secret that I would continue my law practice,” Gallik said. “I told the governor when he appointed me that I would continue my practice.”

Gallik said state law bars him from using state offices or equipment for private work, but he can do commissioner work from his private office, while also being able to work on his private-practice caseload.

According to Lewis and Clark County District Court records, Gallik had at least 16 open cases in that county alone since taking office. He also has two cases open in federal court in addition to other cases filed in other state district courts.

Gallik said around the time he was appointed commissioner that he hired a fulltime lawyer at his law practice to help with the caseload. “So it’s not just me working on these cases,” Gallik said.

Gallik said that he doesn’t practice full time privately but that he works “long hours” in both jobs.

Gallik said he occasionally used his state email address to communicate with his private-practice staff to coordinate scheduling between the two jobs, but he denied using his state computer or email account to conduct private practice or personal business. However an analysis of emails, photographs, court records and state time sheets obtained by the Tribune appear to dispute Gallik’s claim.

Notes for a divorce settlement Gallik was working on sit on his desk in the Commissioner’s office last summer. Staff said the often saw files like this on Gallik’s desk in his office. CONTRIBUTED PHOTO

Gallik repeatedly sent documents and emails back and forth from his law practice to his state email address. Emails between May and August showed regular communication between Gallik and his staff at his private practice on private casework.

For example, on July 19, 2011, Gallik sent an email from his state account to his assistant, Connie Anderson, in which he discussed preparations for an upcoming trial: “We need to get the exhibits and documents ready for the matters coming up,” the email states, in part. “… Put together the exhibits with an index. Once you have this I will put the exhibits in the proper order then we will put the exhibit stamp and make the appropriate amount of copies for trial. I will also need a shell for our proposed findings of fact. …” Gallik also exchanged emails with his wife, Gail Gallik — an executive assistant in the state Department of Commerce — regarding leases and rental agreements for property the couple owns. According to his staff, Gallik regularly leaves his computer on, logged in, unattended and unsecured for long periods of time when he leaves the office, which is a violation of the state’s computer workstation policy.

Every member of the commissioner’s staff said they’ve regularly seen emails on his computer related to his private practice. They said they’ve also seen private-practice case files on his desk in the commissioner’s office.

In one instance Musgrave photographed files Gallik left sitting on his desk that dealt with a divorce settlement he was working on.

The photo showed handwritten notes on a legal pad regarding a divorce settlement.

“He left that kind of stuff on his desk all the time,” said Trujillo, program data technician for the commissioner’s office.

Lines drawn

According to the staff, they met with Gallik at his law office the week before his term as commissioner began in May. The staff said Gallik indicated he wanted the commissioner’s staff to work seamlessly with his private-practice staff.

“He told us he made it clear to the governor he would not be giving up his law practice,” Musgrave said.

“He told us he wanted the political-practices staff to work with his private-practice staff,” Trujillo said. “He thought we were just going to conjoin the two offices.”

“We told him in no uncertain terms that he can’t do that,” said Steab, an investigator for the commissioner’s office.

Baker said she informed Gallik that under no circumstances could his private-practice work cross over with the work of the commissioner’s office.

“We drew the line prior to him coming here as to what he could and couldn’t do,” Baker said. “I said we were not going to be calling his staff and coordinating with them.”

Misreported hours

According to his staff, once Gallik came on as commissioner he regularly clocked hours on the state payroll when he was actually doing work for his private law practice. In some cases state payroll records and court records appear to confirm this.

For example, Gallik logged eight hours of political practice work — a full day’s worth — on June 28, 2011. However, in a sworn affidavit Gallik filed in Helena District Court in a case involving one of his private-practice clients, Gallik claimed eight hours of attorney work on that same day.

Gallik said he couldn’t recall if he was in the commissioner’s office June 28, but he says he must have worked those eight hours.

“If that’s what I claimed, then that’s what I worked,” Gallik said, adding that he works “a lot of 16-hour days.” According to state payroll records, Gallik initially logged 18.5 hours of state time on July 20-22 when he was in Vancouver, Wash., conducting a mediation for one of his private clients. Gallik later amended the time sheet only after Baker repeatedly brought it to his attention.

Gallik said the initial mix-up was a result of his misunderstanding of proper reporting procedures.

“I think I worked some time ahead of time and didn’t put it down, and then I just added on those days I was gone,” Gallik said. “I found out that wasn’t the right way to do it so I amended it back to the way it should have been.”

More recently, while attending the Council on Government Ethics Laws conference in Nashville, Tenn., with Baker and Trujillo, Gallik claimed a full day’s pay on Dec. 7. However, according to the conference program, the conference ended at noon that day. Gallik then toured the Opryland Hotel with Baker and Trujillo for the rest of that afternoon.

“I think what I did on that one was I took too little time on the return trip and too much time on the conference getting out,” Gallik explained.

Gallik said even if there was a “technical issue” with his timesheet — which he said there is not — he said he was appointed by the governor to a “salaried position.”

“The job is to get the job done,” Gallik said. “I respect the requirement to log my hours so I do it. I don’t cheat because I don’t need to cheat the state out of $27 per hour.”

According to payroll records, previous commissioners worked on an hourly pay scale and logged their hours.

Baker said she discussed the erroneous reporting with Gallik on numerous occasions.

However, all four staff members said Gallik gets angry when confronted about his reporting of work hours.

Musgrave said Gallik often becomes verbally abusive when challenged by his staff. “David likes to be in control,” Musgrave said.

Meanwhile, Gallik has produced very little in the way of political-practices work product, the staff says.

“We wouldn’t give a damn about what he put down for hours if he was actually getting the job done,” Trujillo said.

Work lacking

The commissioner’s staff said the many of the political-practices decisions that were released during Gallik’s tenure were prepared by Gallik’s immediate predecessor, Jennifer Hensley, or by staff. Hensley was in the position for just a few months after replacing Dennis Unsworth, who had been commissioner for four-and-a-half years before that.

The Republican-controlled Senate blocked Hensley’s appointment during the 2011 legislative session, refusing to give Hensley a confirmation hearing.

However, the staff in the commissioner’s office said Hensley did a great deal of work in the short time she was there.

Most of the other decisions or settlements produced by the commissioner’s office were written primarily by Steab in her investigative reports or by Baker and signed by Gallik, the staff said.

“He wrote almost nothing on his own,” Steab said.

According to the staff, of the 21 decisions produced by the commissioner’s office since May, 12 were almost entirely written or outlined by Hensley before Gallik’s arrival. Many of the remaining decisions were either “cut and pasted” from Steab’s investigative reports or written by attorneys contracted by the commissioner’s office, the staff said.

According to the staff, Gallik has only drafted one decision on his own since arriving on the job in May.

“If he’s doing all this commissioner work when he’s out of the office, where’s the work product?” Baker said.

Gallik disagrees with his staff’s assessment of his productivity.

“I think there is a good work product to show for it,” Gallik said. “Take a look at the backlog (of political-practices complaints). It’s no worse than it’s ever been,” Gallik said.

Gallik said he’s also been integrally involved in Western Tradition Partnership campaign-finance litigation. The Montana Supreme Court ruled in December in that case that the state’s 100-year-old ban on direct campaign spending by corporations should remain in effect.

Gallik said he’s also been working on a mandate that all candidates for statewide offices must file their campaign finance reports online.

Gallik claims that he has saved the Montana taxpayers “a lot of dough” because he has cut down on the amount of legal bills by putting his skills as an attorney to use in the office.

But Baker contends that the office’s legal bills have actually gone up since Gallik took office.

“There may be an appearance that he did save some money to this office, but if you actually look at the pending contracts yet to be paid you’d see we’ve got $34,172.50 owed to contracted attorneys,” Baker said.

Baker said the office has had to contract five outside people to work on complaints because of Gallik’s conflicts of interest, mostly resulting from his campaign donations. In one case Gallik himself is named in a complaint as treasurer of the Democratic Legislative Alumni Association PAC.

“Because of his conflicts we’ve incurred significant legal fees for outside legal contracts — the highest number of outside contracts we’ve ever had in the history of this office,” Steab said.

Issues reported

Baker and Steab said they raised their concerns about Gallik’s actions with payroll officials at the Department of Administration, Gov. Brian Schweitzer’s office, the Legislative Audit Division and the Attorney General’s office. While their claims have yet to be investigated, the office is scheduled for a legislative audit in June. However, the staff said the results of that audit wouldn’t be known until late next fall, possibly after the 2012 election cycle.

That’s why the staff contacted the Tribune last week, they said.

“If we continued to not say anything then we would be as guilty as he is,” Musgrave said. “He is stealing from the state by claiming time that he is not working, and if we remained silent we’d be helping to perpetuate that crime. We know this is going on, and we need to do something about it.”

According to Baker and Steab, in August they met with Schweitzer’s chief of staff, Vivian “Viv” Hammill, and Patti Keebler, the governor’s appointments coordinator.

According to detailed notes Baker and Steab took during their Aug. 9 meeting, they explained to Hammill and Keebler that Gallik was misreporting his state work time, specifically that Gallik was reporting time worked while he was out of state working on private-practice matters.

Steab and Baker told the governor’s staff that they estimated that half of that time Gallik reported to the state was spent doing privatepractice work or handling his rental property business. They also said that the work the commissioner’s office had produced during Gallik’s term as commissioner was primarily the work of others.

Baker said she was especially concerned about the misreported time because she was the one who signed off on the office’s bi-weekly payroll verification form.

“I was not at all comfortable putting my signature on that form when I knew that the hours he was reporting were not accurate,” Baker said.

“At the time we thought they were very offended by what we were telling them,” Steab said.

Both Steab and Baker wrote in their notes that Hammill said Gallik’s behavior was inappropriate and the problems need to be “nipped in the bud.”

Gallik said he did have a conversation with Hammill after that meeting.

“(Hammill and Keebler) told me I couldn’t do any legal work from the political-practices office and that I had to do it from my law office, and I told them that I wasn’t,” Gallik said. “They said to try to work it out (with the staff). Try to make them understand. Try to get along.”

A request to interview Hammill, Keebler or Schweitzer was met with the following statement by Schweitzer’s communication’s director, Sarah Elliott: “When Governor Schweitzer appointed Dave Gallik he asked him to do more with less. In the first six months of being commissioner, Gallik, being himself an attorney, saved the office thousands on legal fees and decided at least 27 cases and motions. In comparison, Dennis Unsworth, the previous commissioner, decided only 13 cases in his first six months.”

Elliott went on to say that the Office of the Commissioner of Political Practices is not managed or under the jurisdiction of the governor’s office.

“The governor is aware that, just like many Montanans, Gallik works two jobs,” Elliott stated. “The governor’s chief of staff did speak to him about how to properly account for his state time. Commissioner Gallik’s work product speaks for itself.”

The commissioner’s staff responded with a joint statement of their own: “We wish the governor would have checked with us regarding what Dave Gallik has done,” they said. “We apologize to the governor for having to give him the facts, but if he is naïve enough to believe (Gallik), and not check to see that what he is saying is true, then he will be embarrassed to find out Dave is taking credit for other people’s work.”

Gallik speculated that the reason his staff approached the Tribune with their complaints was to try to drive him out of office.

“They don’t like me, who I am or what I say. I’m not a pushover,” Gallik said. “I think this is an attempt to undermine my effectiveness.”

Baker, who has worked in the commissioner’s office since 2001, said Gallik’s accusations ring hollow.

“I’ve worked under four commissioners and they’ve all come from political backgrounds. I’ve adapted to all of them,” Baker said. “In order to build trust it takes time and you have to be engaged. Dave is never here.”

Barry Beach Twitter feed

2011-12-09T13:57:00.001-07:00

I’ve had several people ask via e-mail and facebook about posting my entire Twitter feed from Wednesday’s bail hearing.

I’ve compiled the tweets in Storify. Here they are in chronological order:

RAW VIDEO: Barry Beach is released

2011-12-08T07:36:00.001-07:00

I wanted to post this yesterday but had technical difficulties with the hotel’s wifi.

Here is the raw video footage of Barry Beach’s very first moments of freedom after 29 years behind bars for the murder of Kim Nees, a crime he says he had nothing to do with.

After Judge E. Wayne Phillips ordered that Beach be released on his own recognizance, Beach was escorted out of the Fergus County Courthouse by Roosevelt County Sheriff’s Deputies.

They walked across the street to the jail, where beach gathered his personal belongings, changed into jeans and a Washington Redskins jersey, and then filled out some paperwork before walking out the front door.

About a dozen reporters, TV camera crews, even international journalists from the German ARD network were eagerly awaiting his release from the back door of the jail. We were lead to believe that’s where Barry would take his first steps of freedom.

But after about 20 minutes of eager anticipation, photographers and cameramen jockeying for position, people buzzing with excitement, we heard a car horn honking.

I walked out into the alley to see what the honking was about, and there was Beach, standing on the sidewalk by himself, a garment bag with this courtroom suit in it slung over one shoulder and a duffel bag in his hand. He looked somewhat dumbstruck and, as Jim McCloskey of Centurion Ministries later put it, Chaplin-esque.

Beach seemed dazed. I think most people imagined that if this moment ever happened, that Beach would walk out the door into the waiting arms of his mother, his family and his friends.

But when the moment finally came, Beach ultimately walked out the front door of the Fergus County Jail by himself, with no one there to immediately meet him. He took his first few free steps into that sunshine in quiet solitude. I while it probably wasn’t the way he dreamed it all those nights in Deer Lodge, I imagine there was probably something serene about not having cameras and reporters’ microphones and digital recorders shoved in his face the moment he walked out the door.

Barry Beach took his first steps of freedom on his own.

Of course, as you can see from the video, he was quickly surrounded by supporters, family and reporters. And he was very gracious and happy to oblige us with answers to our questions.

I’ll try to post a couple more videos and photos and what not when I have time. But now I have to hit the road.

Follow the Barry Beach bond hearing live

2011-12-07T10:08:00.001-07:00

Judge E. Wayne Phillips’ Lewistown courtroom is packed.

Media outlets from across Montana – and even across the pond – have filled the jury box. More reporters have packed the front row of the gallery. The room is filled to capacity with supporters. Everyone is eagerly awaiting Phillips decision.

Will this be the day that formerly convicted murderer Barry Beach walks free?

Follow the courtroom action live at this link.

Late Tuesday afternoon Attorney General Steve Bullock’s office filed a notice of intent to appeal to the Supreme Court Phillips’ November ruling granting Beach a new trial. The state argues that Phillips erred in his legal justification for granting Beach a new trial.

Now they’re asking Phillips to stay today’s scheduled bond hearing pending a decision by the high court.

Beach’s lawyers say they’re still confident that Beach could walk out of prison today.

A reception room at the Yogo Inn has been reserved for the party.

A marquee outside the hotel reads “Welcome Barry Beach and supporters.”

But the outcome of today’s hearing is far from a sure thing. Phillips will have a lot of complex legal arguments to sort through before deciding whether or not to move forward with the bond hearing.

Even if they get to that point, there’s no guarantee Phillips will grant Beach – who is now officially charged with murder, but no longer convicted – bail. And even if he does, there’s no guarantee the bail will be low enough for Beach and his family to afford it.

The buzz in the courtroom at the moment is over the fact that the state’s attorneys, Tammy Plubell and Brant Light, did not make the trip from Helena. They will be appearing via Vision Net video teleconferencing.

Be sure to follow my live Twitter feed at the Great Falls Tribune website for all the latest developments.

State appeals ruling granting Beach new trial

2011-12-06T16:49:00.001-07:00

On the eve of a hearing to determine whether Barry Beach should be released on bail pending a new murder trial, Attorney General Steve Bullock's office appealed Fergus County District Court Judge E. Wayne Phillips ruling granting Beach a new trial.

Lawyers for the state also filed a motion asking Phillips to stay Wednesday's bond hearing in Lewistown and to keep Beach in prison pending the outcome of the Supreme Court appeal.

Beach was transported to Lewistown Tuesday in preparation for the bond hearing, which is scheduled for 10 a.m. Wednesday.

Phillips last month found that new evidence in the case was credible and that a jury might not have found Beach guilty if the evidence was presented as his original trial.

Lawyers for Beach are asking Phillips to release Beach on his own recognizance pending a new trial.

But in an appeal filed Tuesday the state contends that Phillips failed to corroborate testimony from the post-conviction hearing with evidence from the original trial, including Beach’s "detailed and remorseful confession to the murder."

Beach has long maintained that his confession was coerced by aggressive Louisiana investigators. Beach also confessed to being involved in the three Louisiana murders, which turned out to be false. All three of those homicides were committed by others and Beach was never charged in Louisiana with any of those crimes. [A spokesperson for the state contacted me and said Beach never confessed to the three murders in Louisiana and that Beach’s defense lawyer made up the story that Beach confessed then later recanted.]

The state argues that, in addition to failing to consider all the evidence of Beach’s guilt, Phillips wrongly held that Beach’s new trial would include his ability to litigate claims of alleged ineffective assistance of counsel and prosecutorial misconduct. According to lawyers for the state, such claims are legal claims that cannot be decided by a jury.

“After a thorough and careful review of the district court’s order, the state has decided that it must appeal to the Montana Supreme Court,” Mark Mattioli, Appellate Services Bureau chief for the Montana Department of Justice, said in a statement. “The state is aware of no case in the country where a confessed murderer has been granted a new trial under circumstances like this.”

Check back later for more details. Follow me on Twitter: @TribLowdown.

Senate confirms Christensen for federal bench

2011-12-05T17:03:00.001-07:00

The U.S. Senate on Monday confirmed Kalispell Attorney Dana L. Christensen to be the next U.S. District Judge for Montana.

Christensen replaces U.S. District Judge Don Molloy, who began serving under "senior status" last summer.

Christensen is a civil litigator who has been a partner in the firm of Christensen, Moore, Cockrell, Cummings, & Axelberg, P.C. in Kalispell since 1996.

Sen. Max Baucus submitted Christensen's name for the job to President Barack Obama back in February, and Obama officially nominated him in May.

The Senate on Monday confirmed Christensen and two other judicial nominees by unanimous consent. A fourth nominee was approved by roll call vote.

Carl Tobias, a law professor at the University of Richmond and scholar on the judicial nomination process, said Christensen was a non-controversial choice for the bench as reflected by the unanimous Senate vote.

"He is so well qualified and non-controversial they just agreed without even a roll call vote," Tobias siad.

Tobias taught Christensen at the University of Montana School of Law in the late 1970s.

"He has a great temperament and is a very balanced person,” Tobias said. “He’s very patient. He’s also well-practiced in federal and state courts as civil litigator for his entire career.”

Christensen received his J.D. in 1976 from the University of Montana School of Law and his B.A. in 1973 from Stanford University.

Judge sets Beach bail hearing for Wednesday

2011-12-01T11:17:00.001-07:00

A Fergus County District Court Judge has set a bond hearing for Barry Beach, the man convicted of the 1979 slaying of a Poplar teenager.

District Judge E. Wayne Phillips has set the hearing for Wednesday at 10 a.m. at the Fergus County Courthouse in Lewistown.

Last month Phillips found that new evidence in Beach's case was credible and granted

Beach a new trial. That ruling effectively vacated Beach's original 1985 conviction, so in the eyes of the law Beach is now charged with the crime. Beach's legal team says he should be released on bail pending a new trial, and they filed a petition for bail on Tuesday.

"We are actually very glad the judge set the hearing as soon as he did," said Peter Camiel, one of Beach's attorney. "It is our hope that by the end of the day Wednesday Barry can experience freedom for the first time in almost 30 years."

Beach was arrested in January of 1983 and has been in custody ever since. Camiel said he will argue to Phillips that Beach is not a flight risk and is not a danger to the community.

"In fact Barry welcomes the chance at a new trial to have a new jury hear the evidence," Camiel said. "He and his defense team believe a new jury would find him not guilty."

Judge’s order granting Barry Beach new trial

2011-11-23T10:26:00.002-07:00

It remains a mystery how KURL 8 reporter Katie Ussin managed to get Judge E. Wayne Phillips’ order granting Barry Beach a new trial before even the Roosevelt County Clerk of Court got the signed order, but kudos to Katie for an impressive scoop.
I know many people have been waiting to read the order for themselves, so without further ado:

House measure would expand Homeland Security powers, waive environmental laws

2011-09-21T16:01:00.001-06:00

I decided to post this article on my blog since I’ve received so much feedback on it. It appears there’s a lot of interest in this topic. This version will stay live after the original story has been archived on the Tribune’s website. – JSA

A controversial bill that would give the Department of Homeland Security unprecedented authority over federal lands within 100 miles of the United States' border is making its way through Congress.

The proposed measure, called the "National Security and Federal Lands Protection Act," would let Homeland Security waive 36 major federal environmental protection laws in order to facilitate border patrol activities on public lands.

Supporters of the bill say it would give U.S. Customs and Border Protection agents more control in securing the nation's borders. Opponents argue that the measure is overly broad and would give Homeland Security unchecked authority to disregard major environmental laws on public lands, including wilderness areas, national parks and wildlife refuges among others.

Congressman Denny Rehberg, one of the 49 50 Republican co-sponsors of the measure, said the bill is aimed at giving border patrol agents the tools they need to secure the border.

"This bill is about ending a dangerous turf war being waged between various federal government agencies - and it's a turf war that is threatening America's national security," Rehberg said. "The simple idea of the bill is to provide the border patrol with the same access on federal land that it currently has on state and private land. There is nothing about this bill that creates any new authority to intrude into the lives of Americans."

Critics, including Democratic Sen. Jon Tester, say House Resolution 1505 is on par with the Patriot Act and REAL ID, in terms of granting the federal government unprecedented and overreaching powers.

"It's a federal land grab at its worst," Tester said. "I just can't see how any lawmaker would think it's a good idea to allow the Department of Homeland Security to make sweeping decisions about our land and ignore our rights without any public accountability."

The bill would give the secretary of homeland security total operational authority over all federal lands within 100 miles of the U.S. international and maritime borders. Under the proposed law, DHS would have immediate access to, and control over, any public land managed by the federal government for "purposes of conducting activities that assist in securing the border (including access to maintain and construct roads, construct a fence, use vehicles to patrol and set up monitoring equipment)."

In Montana, the law would impact nearly the entire northern third of the state, including Glacier National Park; portions of the Kootenai and Flathead national forests; The Flathead, Blackfeet, Rocky Boy's, Fort Belknap and Fort Peck Indian reservations, the Upper Missouri River Breaks National Monument, the Charles M. Russell National Wildlife Refuge, and tens of thousands of acres of Bureau of Land Management lands.

The measure also waives 36 major environmental laws, including the National Environmental Policy Act, the Endangered Species Act, the National Park Service Organic Act, the Federal Water Pollution Control Act, the National Historic Preservation Act and the Clean Air Act.

Homeland Security spokesman Matt Chandler said the agency does not comment on the specifics of pending legislation.

Kim Thorsen, deputy assistant secretary for law enforcement, security and emergency management at the U.S. Department of Interior, testified to the House Subcommittee on National Parks, Forests and Public Lands that the Obama administration opposes the measure.

"We recognize the significant ecological and cultural values of the extensive lands Interior agencies manage near the borders, and we strive to maintain their character and fulfill our mission to protect and preserve these assets on behalf of the American people," Thorsen said in written testimony to the committee. "We also believe that these two objectives - securing our borders and conserving our federal lands - are not mutually exclusive; we are not faced with a choice between the two, instead, we can - and should - do both."

According to Thorsen, HR 1505 would have a significant impact on the Interior Department's ability to carry out its mission to protect natural and cultural resources on federally managed and trust lands.

"As drafted, this bill could impact approximately 54 units of the national park system, 228 national wildlife refuges, 122 units of the National Wilderness Preservation System managed by Interior, and 87 units of BLM's National Landscape Conservation System, resulting in unintended damage to sensitive natural and cultural resources, including endangered species and wilderness," Thorsen wrote.

John Leshy, a University of California - Hastings, law professor and a former committee staffer, told the committee that compared with other legislation he has seen, HR 1505 is "the most breathtakingly extreme legislative proposal of its kind."

"I have grave concerns, not only about its wisdom as a matter of policy, but also its constitutionality as a matter of law," Hastings told the committee.

He also said that under the bill, Homeland Security's actions would be immune from court review, except for constitutional claims.

Supporters of the measure say that's exactly the point.

Zack Taylor, vice chairman of the National Association of Former Border Patrol Officers, said the foundational components of border security are national security and public safety. He said no other laws - including environmental protection laws - should ever supersede those foundational principles.

"What has happened is the importance on the environment has come to rule everything else," Taylor said in an interview last week. "In our view, the people are more important than the porcupine or the wolverine or the wolf or the grizzly bear."

Jane Danowitz, director of U.S. Public Lands for the Pew Environment Group, said the measure is part of a "disturbing trend" in Congress to undo environmental regulations in the name of public safety or national security.

"Anti-environmental bills that would never pass under their own merits are now being recast as solutions to some of the country's most pressing problems," Danowitz said. "We all care about national security and protecting our borders, but waiving core conservation measures is not the way to do it."

Supporters say the criticisms of the bill are overblown.

"HR 1505 isn't about creating new enforcement authority. Rather, it's about making existing laws actually work as intended by alleviating the regulatory burden of certain environmental laws," Rehberg said.

Rehberg said the bill is not just about preventing terrorists from entering this country, it also is about stemming the flow of illegal immigrants, drug smuggling and the abuse of public lands by criminals and drug cartels.

"At the end of the day, I never want to have to tell a Montana family that their loved one was killed by someone on drugs that got into our state because some federal bureaucrats couldn't work together to control the border," Rehberg said.

Tester said the bill has far greater implications than its supporters acknowledge.

"This is a whole lot worse than just granting agents access to certain federal lands. It gives one federal department the ability to run roughshod over the rights of law-abiding Americans and seize vast swaths of land we all own and use - with no public accountability," Tester said. "This nation is very capable of fighting terrorism without turning into a government police state, but that's exactly what this unpopular plan would do."

According to the bill's sponsor, Utah Republican Rep. Rob Bishop, the measure could see a mark-up before the end of the year.

Livingston actress/activist Margot Kidder arrested at the White House

2011-08-23T15:33:00.001-06:00

Actress and activist Margot Kidder, of Livingston, was reportedly arrested on the steps of the White House today. Kidder, dressed in black in the photo above, was in Washington as part of a two-week protest to push the Obama Administration to deny Canadian oil giant TransCanada’s permit to build the Keystone XL pipeline. Kidder is active in the group Montana Women For. She was photographed holding a sign that said “Montana Women For An Oil Free Future.”

Kidder, best known for her role as Lois Lane in the Superman movies, was arrested fellow actress Tantoo Cardinal (in orange), who starred in Legends of the Fall and Dances with Wolves.

According to the Canadian Press:

Canadian actress Margot Kidder was among the latest slate of environmentalists to be arrested outside the White House on Tuesday, handcuffed and sent to jail on the fourth day of a two-week civil disobedience campaign against TransCanada's Keystone XL pipeline.

Kidder, born in Yellowknife but now living in Montana as an American citizen, was arrested alongside fellow Canadian actress Tantoo Cardinal by U.S. Park Police for refusing to vacate a White House sidewalk.

Just as dozens of others have since Saturday, Kidder and Cardinal were charged with failing to obey an order governing protests on the sidewalk, police said. They were expected to be released later Tuesday.

"We're the first state the pipeline goes through," Kidder, 62, best known for playing Lois Lane in four "Superman" movies, said before her arrest.

She marched from Lafayette Square, directly north of the White House, to the sidewalk lining the northern edge of the presidential residence along with three other women who described themselves as "Montana grandmothers."

"It's bound to leak, there's no way it's not going to ... they always assure us these things are safe, and they never are safe," Kidder said.

AP: DOT head resigns over daughter's job

2011-08-12T13:07:00.001-06:00

Associated Press statehouse correspondent Matt Gouras is reporting Gov. Brian Schweitzer asked MDT Director Jim Lynch to resign after discovering that Lynch’s daughter was hired by the department.

From the AP article:

Schweitzer confirmed to The Associated Press on Friday that the abrupt resignation was over concerns that the hiring of Lynch's daughter, Emily Rask, could violate state nepotism laws. Rask holds a post in the agency's human resources department.

"I became aware that he had hired his daughter. I spoke to him about it and said, 'Jim, this is a clear violation of the nepotism law,'" Schweitzer said. "On that basis, I asked for his resignation. He had an interpretation that it is acceptable. I said, 'Look, this is not acceptable.'"

Lynch had a somewhat different explanation of events:

Lynch told the AP on Friday that he is the one who offered his resignation. He also said that both he and Schweitzer agreed the hiring did not amount to nepotism under the state law.

---

Lynch said he did not get personally involved in the hiring that took place about four years ago, and he said he made sure it was all done correctly.

---

Lynch said he was surprised the hiring became an issue after such a long time. He said he stayed out of the decision-making process, and said his daughter was hired on merit in a normal hiring process.

"When I heard that she was applying, I reviewed it with the legal department and human resources and they said it was acceptable for her to apply for the job," Lynch said. "Quite frankly, that was the end of it for me.

"I don't think there is anything wrong with what we did, we followed the process."

MDT Director Jim Lynch resigns

2011-08-11T17:13:00.001-06:00

Montana Department of Transportation Director Jim Lynch abruptly resigned Thursday after 6 1/2 years as head of the agency.

Gov. Brian Schweitzer appointed Lynch shortly after taking office in January 2005.

Lynch said he gave his resignation letter to Schweitzer Thursday morning. The three-sentence letter said little, only that Lynch decided to resign to "pursue other opportunities."

Schweitzer appointed the department's chief legal counsel, Tim Reardon, to take over as director effective immediately.

"The time was always going to come," Lynch said in an interview Thursday. "When you work for the governor there always comes that time when you can leave, and when it is a good time to leave."

Lynch said he wasn't able to make plans for life after his term as director while still serving in that role.

"There were a lot of questions of me while I was director about what I was going to do next. You can't answer those, and you can talk about them, and you can't plan them while you're still a state employee," Lynch said.

Lynch, a former Kalispell businessman, is rumored to be considering a run for governor. Lynch didn't close the door on that possibility.

"I think this gives me an opportunity to evaluate (a possible gubernatorial campaign) and evaluate what opportunities are out there both in the public and private sector," Lynch said. "I'm just going to take a deep breath and sit back and take my time. I'm not in a hurry to make any decisions one way or the other."

In an e-mail press release announcing the resignation Schweitzer thanked Lynch for his "service and commitment to the state and the people of Montana."

“I wish him well as he moves back to the private sector," Schweitzer said. "Jim was always one of the first people on the scene to any road incident; he was always willing to lend a hand in our towns and communities with snow removal or gravel roads and was a great advocate for highway safety.”

Schweitzer did not comment on why Lynch resigned.

MDT has come under scrutiny over the past year for the agency's handling of ExxonMobil's controversial proposal to haul hundreds of massive Korean-built tar sands processing modules from Lewistown, Idaho, along the Rocky Mountain Front and on to the Kearl oil fields in northern Alberta.

Lynch told the Interim Revenue and Transportation Committee in a 2009 hearing that the company was proposing a "permanent high and wide corridor" across the state to service the Canadian tar sands. Lynch later backed off that statement saying that current project is a one-time only proposal.

Critics of the project say MDT failed to adequately study the potential cultural, environmental and economic impacts of such a project.

Last month District Judge Ray Dayton of Anaconda upheld a request by Missoula County and three conservation groups to stop Imperial Oil/ExxonMobil from transporting the megaloads through the state.

Lynch said the Kearl Module Transportation Project had nothing to do with his decision to resign.

"That's what's nice about Montana, we have the (Montana Environmental Policy Act) process in place to deal with these kinds of projects," Lynch said. "That issue will continued to be played out and it won't be over anytime soon, but that's just one of many aspects that we deal with at MDT."

Lynch said this is a "great time" for him to leave the department.

"There was always going to have to be a time that I have to walk away," Lynch said. "We're delivering a great program. We're sound, we have a fund balance in our program and a great staff at MDT that work hard for the people of Montana."

Reardon, an Anaconda native, has been MDT's chief legal counsel since June 1994.

Gov. Ted Schwinden in 1981 appointed Reardon to serve as a workers' compensation judge, a position he held for 10 years. Prior to that appointment Reardon worked as an attorney in the division of workers compensation and worked in the Department of Health and Environmental Sciences. He received his bachelor’s degree from Carroll College and his juris doctorate from the University of Montana.

Reardon will continue to make $99,984, the same salary he is currently making. Reardon is married and has four kids and four grandkids.

“I am honored to have Tim on the team as the director of the Department of Transportation,” Schweitzer said. “I have every confidence in his ability and know he will serve the people of Montana well.”

Observations, reactions from the Beach hearing

2011-08-04T16:51:00.001-06:00

If there was one thing nearly everyone in the Fergus County courtroom could agree on this week it was that District Judge Wayne Phillips conducted Barry Beach’s evidentiary hearing in a balanced manner.

“As complex as this case was for us, it was equally complex for the judge,” said Assistant Attorney General Brant Light, one of the prosecutors representing the state in the case. “I think he was very balanced in this matter.”

Fergus County Judge Wayne Phillips

Beach is the 49-year-old Poplar man convicted of the 1979 killing schoolmate Kim Nees. Beach has long maintained that his confession to investigators in Louisiana — the only evidence tying him to the crime — was coerced.

Over the years Beach offered a theory that a gang of jealous females killed Nees in an assault that got out of hand. This week his legal team — for the first time — got a chance to present that theory to a judge. Beach hopes that Phillips will find the evidence convincing enough to order a new trial.

For nearly three days, Beach’s lawyers examined witnesses who gave testimony that bolstered Beach’s claim of innocence. One woman testified that she heard the “horrific” screams of multiple girls the night Nees was murdered. Other witnesses told the court that, over the years, three women admitted to playing a role in the crime.

Meanwhile attorneys for the state sought to poke holes in that testimony. They called the trustworthiness of Beach’s witnesses into question and fought back attempts to enter hearsay evidence into the record. Prosecutors brought their own witnesses, including the former Roosevelt County undersheriff who originally investigated the murder, to dispute Beach’s “gang-of-girls” theory.

Beach’s attorney Peter Camiel

Along the way, Phillips sustained and overruled dozens of objections by both sides. At some points, the judge seemed to be more favorable to the defense’s arguments, and at other times the state’s arguments appeared to hold sway.

At one point, Beach’s lawyers won a series of arguments related to the admission of evidence. The state opposed allowing certain written statements into the record, but Phillips overruled Light on three occasions. Light belied his cool confidence by slapping his hand down on the table and falling back into his chair, shaking his head in frustration.

Assistant Attorney General Tammy Plubell

Beach’s legal team had their share of frustrating moments, too. Time and time again they tried to convince the judge to allow testimony from University of San Francisco professor Dr. Richard Leo, an expert on false confessions. However, the judge rebuffed those efforts and Leo was not allowed to testify. The judge also denied Beach’s request to recall a witness after later learning new information stemming from his testimony. The judge refused, on the grounds that the defense had ample opportunity to ask the questions during cross-examination of the witness.

Some of Beach’s supporters were worried prior to the hearing that Phillips might not give Beach and the new evidence a fair shake.

“All we can hope for is that he listens to all of the evidence and considers it carefully,” said Bobbi Clincher, Beach’s mother, before the hearing.

Left: Beach’s mother, Bobbi Clincher

Phillips was the third judge assigned to hear Beach’s petition for post-conviction relief, and he scheduled this week’s hearing more than a year after he was assigned the case. Prior to the hearing no one knew going into Monday if Phillips would allow witnesses from Beach’s amended petition to testify. Some people, including members of Beach’s legal team, were concerned that Phillips might refuse to hear the new evidence.

However, Phillips heard from nearly all of Beach’s witnesses over the course of 2½ days.

“I was very satisfied with the way this hearing was conducted and I am thankful to Judge Phillips,” Beach said in a jailhouse interview after the hearing concluded. “I thought he was patient and open to letting both sides present their very best case. Judge Phillips turned out to be everything I had been informed he was: fair, patient, and open minded to everything both parties presented.”

Robert “Bobby” Atkinson is the brother of Sissy Atkinson, one of the women Beach’s witnesses accused of playing a key role in Nees’ murder. Robert Atkinson, who was on the Poplar Police Department at the time of the murder, sat quietly in the courtroom gallery all three days. He was one of the few of the 30 or so people in the audience who was not there to support Beach, though Atkinson doesn’t appear to have any harsh feelings toward the man who has repeatedly accused his sister of murder.

During a break in the hearing Wednesday Robert Atkinson told The Associated Press he agreed that evidence in the murder case was mishandled . He also said Beach may not have had a fair shake at his original trial, and that Beach probably has served enough time in prison for the crime.

Robert Atkinson also said he believes Beach killed Nees largely on Beach's confession.

Robert Atkinson said he also does not believe his sister, Sissy Atkinson, who lived a rough life as a drug abuser, was involved. However, he speculated, that she might have taken credit over for the killing over the years as a way to bolster her credentials among a tough crowd.

"She likes that reputation," he said.

Sissy Atkinson told the AP that she never took credit for Nees’ murder.

Glenna Nees Lockman, Kim Nees’ older cousin, spent two days at the hearing, at times sitting next to Clincher. After the hearing Lockman said she came to Lewistown to support Beach, whom she said she believes is innocent. Lockman was adamant that she was speaking only for herself, and not for the Nees family.

“I was very satisfied with how this hearing went,” Lockman said. “I guess the only disappointment was that (former Roosevelt County Undersheriff) Dean Mahlum remembered every detail that might have helped the state, but couldn’t seem to remember anything for the defense.”

Peter Camiel, Beach’s lead defense attorney, said he also was pleased with how the hearing went.

“Going in we didn’t know if he (Phillips) would let us present any of our new witnesses,” Camiel said. “We’ve got a very hard-working judge who has taken this case super seriously.”

Jim McCloskey, founder of Centurion Ministries, a New Jersey-based group that has been working to free Beach for more than a decade, said he feels very good about the week’s developments.

McCloskey consults with Beach

“I think our witnesses were believable, credible and they all had the opportunity to present their story to the court that shows that Barry is completely innocent of this crime, and played no role in it,” McCloskey said. “We look forward to the judge’s ultimate decision down the road.”

Both sides will present briefs to the court on or before Oct. 14. Phillips said he hopes that by Thanksgiving he will make a ruling on whether to grant Beach a new trial, or call for another hearing to hear Beach’s constitutional claims.

Light called this week's hearing "very, very unusual."

"We may not see another hearing this is many years," Light said. "Now this part is over, but we believe there will be another hearing."

Contributing: The Associated Press

BREAKING: Roosevelt Co. Sheriff charged with assault in Lewistown

2011-08-02T12:51:00.001-06:00

The Great Falls Tribune has confirmed that Roosevelt County Sheriff Freedom Crawford was involved in an altercation at a downtown bar early Tuesday morning that resulted in one man being transported to the emergency room with cuts to his face.

Crawford and other Roosevelt County Sheriff's deputies are in town for the evidentiary hearing of Barry Beach, the man convicted of the 1979 beating death of Poplar teen Kim Nees. Roosevelt County deputies are providing security at the Lewistown Courthouse. Beach's hearing was moved from Roosevelt County to Fergus County.

According to Lewistown Justice Court records, Crawford was charged with assault, obstructing a peace officer, disorderly conduct and criminal mischief stemming from the altercation. All are misdemeanor offenses. Lewistown police officers located Crawford at the Yogo Inn hotel, at 211 East Main Street, at approximately 12:33 a.m. He was not arrested.

According to incident report, Lewistown police officers responded to a call from a bartender at the Montana Tavern at 202 West Main Street at 12:21 a.m. reporting that an adult male subject "threw an adult male through the front window of the tavern." According to the report, the man, later identified as Crawford, fled the scene barefoot in the direction of the Yogo Inn.

Update: Lewistown PD Press Release

The report states that the victim, who suffered "serious cuts to his face," was traveling through town on his way to Sturgis.

No other information was immediately available.

A call to the Roosevelt County Sheriff's Office was not immediately returned. Crawford was not at the Fergus County Courthouse Tuesday.

Shocker: Yellowstone pipeline may have leaked more oil than previously estimated

2011-07-23T12:04:00.001-06:00

Is anybody really surprised about this news?

Also Friday, Montana environmental regulators said the pipeline may have leaked up to 1,200 barrels of oil into the scenic river. That equals 50,400 gallons and is 20 percent higher than prior estimates from ExxonMobil.

Readers of this blog might remember a post a couple of weeks back where I did my own calculations of how much oil might have leaked out the ruptured Silvertip pipeline based on the information we have from ExxonMobil.

40,000 bbl a day ÷ 24 hours in a day=1,666.66 bbl per hour

1,666.66 bbl per hour ÷ 60 minutes per hour=27.77 bbl per minute

27.77 bbl per minute x 56 minutes= 1,555.55 bbl

So we’re not quite there yet, but something tells me this won’t be the last time we read the phrase “higher than prior estimates from ExxonMobil.” Will we ever know for sure how much oil fouled the Yellowstone? Probably not.

Legislature’s ex-top lawyer to run for U.S. House

2011-07-22T13:28:00.001-06:00

The Montana Legislature's former top attorney, Rob Stutz, said Friday he's considering running for the U.S. House.

"I was looking at legal issues and the amount of time that was spent trying to govern the people of Montana on legal issues and constitutional issues that really were already decided issues of law," Stutz said. "That was what motivated me to think I can work with the people and not get bogged down by a bunch of ~~extremist procedural and fundamental legal issues~~ procedural and settled legal issues."

Stutz, 38, resigned as the Legislature's chief legal counsel mid-session last March after fewer than nine months on the job.

Stutz gave no reason for his departure at the time. Susan Fox, executive director of the Legislative Services Division, said only that it had to do with a "personnel matter."

Stutz said in an interview Friday said that the legal work of the Legislature was completed after the transmittal break so he opted to take accrued leave time to consider running for Congress.

His term at the Legislature officially ended July 1, Stutz said.

"When the legal work was done for the session, I was done, and I've been looking into running for Congress since then," Stutz said.

Stutz said he's planning on running as a Democrat. He said his primary motivation for seeking the seat stemmed from "seeing the way the Constitution was treated during this last legislative session."

Stutz is the fourth Democrat to signal his interest to seek the party's nomination in June. Democratic state Sen. Kim Gillan of Billings, state Rep. Franke Wilmer of Bozeman, and Missoula City Councilman Dave Strohmaier have already officially announced their campaign.

On the Republican side, presumed GOP frontrunner Steve Daines, who ran for Lieutenant Governor in 2008, is facing a challenge from John Abarr, a former Ku Klux Klan organizer from Great Falls.

Republican Denny Rehberg is giving up his post as Montana's lone Congressman to challenge incumbent U.S. Sen. Jon Tester, a Democrat, in what will be the marquee statewide political matchup in 2012.

Billionaire candy bar mogul buys one-third of Tongue River Railroad, gets into coal business

2011-07-20T17:51:00.001-06:00

Billionaire Forrest E. Mars, Jr. has reached an agreement with BNSF Railway Co. and coal giant Arch Coal to buy one-third of the Tongue River Railroad. The candy bar and pet food mogul said the purchase would prevent the construction of the proposed railway along major stretch of the Tongue River Valley in southeastern Montana.

In a July 18 letter to Ed Gulick, chairman of the conservation group Northern Plains Resource Council, Mars said he would no longer help fund ongoing legal challenges or future litigation related to the controversial 130-mile long railroad that would transport coal from Montana to Midwestern power plants and beyond.

"I have reached an agreement with BNSF Railway Company and Arch Coal to buy the Tongue River Railroad permits from (Tongue River Railroad president) Mike Gustafson and protect a significant area along the Tongue River from future development," Mars wrote. "I sincerely hope that the Northern Plains (Resource Council) is pleased with this result."

[Click here to see the letter]

Mars concluded the letter by saying, "I should also tell you that I will not be helping you fund the current appeal or any future litigation on these issues."

According to Mark Fix, past chair of Northern Plains Resource Council and a rancher along the route of the proposed railroad, Mars supported Northern Plains in the past when the Tongue River Railroad threatened to cross Mars' 82,000-acre Diamond Cross Ranch.

In July 2010 Northern Plains and Fix petitioned the Surface Transportation Board, the federal agency that regulates railroad mergers, to stop construction of the Tongue River Railroad arguing that no adequate study of the environmental impacts of the coal train had been completed. The STB denied the petition and the case is currently before the 9th Circuit U.S. Court of Appeals.

Fix said Mars' recent actions will have no affect on the ongoing litigation.

"We've got lots of members and basically we're a grassroots organization," Fix said. "We rely on our members. We don't look to huge donors to fund our campaigns."

Calls to Mars' attorney and managers at the Diamond Cross Ranch were not returned as of press time.

Mars said in his letter that under the deal the Tongue River Railroad would not be built between Decker, near the Wyoming border, and the southern border of the Northern Cheyenne Indian Reservation near O'Dell Creek road, about six miles northeast of Birney. The portion of the proposed railroad between O'Dell road, approximately 10 miles south of Ashland, and Miles City, would not be affected by the deal, according to Mars.

Conservation groups opposed to the railroad and the development of massive coal mines in the Otter Creek reacted harshly to the news Wednesday.

Ranchers and farmers along the route have fought for decades to prevent its construction, arguing that it would bisect farms and ranches in the Tongue River Valley and reduce property values, separating grazing land from water, spread weeds and possibly start fires.

“We have always been dedicated to protecting the entire Tongue River Valley,” said Jeanie Alderson, vice chair of Northern Plains a third-generation Tongue River rancher. “I depend on my neighbors as much as they depend on me. Our operations work because we are not dissected by an industrial railroad.”

Jim Jensen is the executive director of the Montana Environmental Information Center. That group sued the state Land Board in May 2010 arguing that board failed to weigh the environmental and economic consequences or consider any alternatives that might be more beneficial to the state when it agreed to lease 500 million tons of Otter Creek coal to Arch Coal for $86 million. That case is still pending in district court.

"This letter means that Forrest Mars won't have a railroad crossing his property and several other ranchers will be saved from that fate, but the Tongue River Railroad between Miles City and Ashland also crosses a lot of property and the river is beautiful there too," Jensen said. "We will do everything in our power forever to stop the mining of Otter Creek because coal is the fuel of the past. It's dirty and it's changing our climate."

Opponents of the project have speculated that one of the driving forces behind the Tongue River Railroad was the desire to ship Wyoming to Midwest power markets. Now landowners say the focus has shifted and the purpose is to transport Otter Creek coal to ports on the West Coast and on to markets in China.

"We will not allow the Tongue River Railroad to be built because it will tear apart Montana ranch land and negatively impact agriculture in southeastern Montana to haul more of our coal to China just to make corporations and rich individuals richer," Fix said.

Mars said the state would "greatly benefit" from new jobs and revenue created by the developing of the Ashland to Miles City-stretch of the railroad.

"The agreement with BNSF and Arch is the best of both worlds — it projects a large portion of the Tongue River and allow for economic development in Montana," Mars wrote.

Critics disagree.

"I disagree completely with Mr. Mars' contention that that will somehow be good for Montana," Jensen said. "It won't be good for Montana, won't be good for the region and certainly won't be good for the word. We do not need more death trains hauling coal to be burned."

Double standard for perjury in Missoula County?

2011-07-18T12:21:00.001-06:00

Late last year I wrote here about a story that Lee’s Mike Dennison has been following about a Missoula man has fought for nearly a decade to overturn is rape conviction.

Cody Marble, 27, was convicted in 2002 of raping a 13-year-old fellow inmate at the Missoula County Juvenile Detention Facility and sentenced to 20 years in prison. Marble adamantly denied the charges from the beginning and has insisted all along that he was set up by his fellow inmates.

Dennison reported last December that victim, now in his 20s, admitted to investigators for the Montana Innocence Project that he made up his testimony. From Dennison’s piece:

In a statement filed Tuesday with Marble's petition, the alleged victim, now 22, says he was not raped by Marble and that he was told by other teenagers held in the detention center to make up the story to frame Marble for the crime.

“I testified falsely against Cody Marble at the trial,” he said in his statement. “I thought by then that the story had gone too far and I could not go back. I never thought he would be found guilty or go to prison. ... My hope now is to set the record straight.”

What was Missoula County Attorney Fred Van Valkenburg’s response to seeing the victim’s signed a statement recanting his 2002 testimony?

“It's just one more thing that Cody Marble is trying to do to avoid responsibility for his case,” Van Valkenburg said. “We're just going to have to deal with it.”

Dennison followed-up on the story last week reporting that Van Valkenburg filed court documents saying that Marble has “no evidence” that could overturn his rape conviction because the victim has “repeatedly refused” to sign a sworn statement recanting his 2002 court testimony. The victim, by the way, is serving a sentence in Deer Lodge for having sex with an underage girl, and is thus already under the thumb of the criminal justice system.

Now, according to the victim’s lawyer, Brett Schandelson of Missoula, the victim “has no desire to participate in Mr. Marble’s petition any further” and “will not answer questions put to him by either party.”

“He desires to be left alone and continue the good progress he has made at (prison) Boot Camp,” Schandelson wrote.

Could the reason his client doesn’t want to go on the record and say he lied in 2002 have something to do with his fear of being prosecuted for perjury, a crime punishable by up to 10 years in prison and a $50,000 fine?

Marble has asked the court to grant the victim—who was 13 at the time of the alleged rape—immunity from perjury.

But according to Dennison’s report, Van Valkenburg opposed that request, saying:

…anyone who gave knowingly false testimony at a trial should not be shielded from prosecution.

“If prosecutorial immunity is given to those who perjure themselves, there is no guaranteeing the veracity of any future testimony,” Van Valkenburg said in court papers filed this week.

So if the victim comes forward and recants testimony he gave when he was 13 and says that the rape Cody Marble was convicted of never happened, he could face more prison time and a huge fine. But if he doesn’t recant, he serves out his sentence in Deer Lodge and goes on with his life while Cody Marble continues to be labeled as a sex offender. That’s the situation Van Valkenburg has set up by denying to give the victim prosecutorial immunity.

Van Valkenburg’s position really blows me away. Here’s why:

In February 2006 I covered the high-profile trial of a man accused of raping a woman at a now-defunct popular nightclub in Missoula. Wilbert Fish was charged with sexual intercourse without consent, a felony, after police alleged they saw Fish with his hand down the pants of an unconscious 21-year-old woman.

However, video surveillance tapes shown to jurors forced arresting Missoula Police officers Ryan Ludemann and Duncan Crawford to admit on the stand that they had falsified the arrest report and gave false testimony during the trial. It also came out during that trial that Officer Ludemann has history of lying while on the job. Ludemann once cited a woman for driving with a suspended license based on an accusation made by his own wife, despite the fact that he never actually saw the woman driving. Driving with a suspended licenses carries a minimum 48 hours in jail. Ludemann wrote in his official report that he saw the woman driving but that he “lost her in traffic.” He then lied to his superiors to try to cover-up his lies. He admitted to all of that during the Fish trial.

After hearing that testimony and after watching video surveillance tapes that proved that Ludemann and Crawford were lying, it took the jury of four women and eight men less than two hours to find Fish not guilty of rape.

So does giving false testimony equal perjury?

According to Montana Code 45-7-201:

A person commits the offense of perjury if in any official proceeding he knowingly makes a false statement under oath or equivalent affirmation or swears or affirms the truth of a statement previously made, when the statement is material.

To my knowledge, neither officer Ludemann nor Crawford were ever charged with perjury for their testimony in the Fish trial, despite the fact that they both admitted to giving false statements under oath. I don’t know if they were officially reprimanded.

Which brings me to my point. Van Valkenburg was willing to turn a blind eye to perjury when his own law enforcement officials are committing it in the name of securing a conviction. But if a man in his 20s wants to officially “set the record straight” about a lie he says he told when he was 13-years-old—and in the process clear the name of a man who may have been falsely convicted of rape—he should face 10 years in prison and a $50,000 fine?

Colin Stephens, Marble’s attorney, told Dennison that if the victim is given immunity, “he’ll certainly testify at any new hearing on Marble’s request to overturn his conviction.”

As Stephens points out in the article, “the question for the court is whether the jury would have convicted Marble if they knew the victim changed his testimony.”

Van Valkenburg dismissed the recantation obtained by the Innocence Project as: “the result of a non-objective, non-forensic, leading, goal-oriented ‘investigation’ by an organization whose mission it is to reverse jury convictions,” he argued.

It appears from his statements and actions that Missoula County Attorney Fred Van Valkenburg places a higher value on preserving convictions than serving justice.

Tester bests Rehberg in 2nd quarter fundraising

2011-07-15T17:17:00.001-06:00

Incumbent Democratic U.S. Sen. Jon Tester outraised Republican challenger Rep. Denny Rehberg in second quarter of 2011 fundraising.

In reports filed today with the Federal Elections Commission, Tester reported contributions totaling $1,255,948.24 between April 1 and June 30. Rehberg raised $914,656.63 during the same period.

Tester's campaign, Montanans for Tester, has $2,335,139.80 in cash on hand. Rehberg's campaign, Montanan's for Rehberg, reported having $1,500,744.90 in the bank.

Montana's U.S. Senate race is shaping up to be one of the marquee Senate races of the 2012 election, and the early fundraising numbers highlight that, said veteran political observer Jennifer Duffy, senior editor for The Cook Political Report.

"Republicans need four seats to win the majority in the Senate, and this is absolutely one of them," Duffy said. "Both parties are going to fight in Montana like their majorities depend on it."

Both campaign in press releases traded barbs over their opponents' ties to "Wall Street" and "big oil."

Rehberg’s top sheets here

Tester’s top sheets here

Tester campaign manager, Preston Elliott, said Tester's fundraising numbers show that people are "throwing their support behind this grassroots campaign because they know how effectively Jon represents Montana values in the U.S. Senate — as a Montana farmer who still comes home every weekend."

Rehberg's campaign countered that Tester has "relied heavily on Wall Street banking executives" and "Hollywood elites" to fund his campaign while stating that the majority of Rehberg's individual donors are Montanans.

“Denny’s Made in Montana campaign continues to surge all across Big Sky Country,” said Rehberg campaign manager Erik Iverson. "We’ll probably never out-fundraise Wall Street Jon and his Big Bank money but we don’t need to because Montanans know Denny is right on the issues and always puts Montana first.”

Elliott accused Rehberg's campaign of resulting to "Washington's dirty politics" by getting "big oil and Wall Street special interests" to fund early TV attacks against Tester.

"We about building a powerful grassroots campaign in order to make sure that Montanans know the truth about Jon and his good work," Elliott said.

Tester reported taking-in $946,922.61 in individual contributions and $307,069.51 from political action committees, or PACs. Rehberg received $720,769.13 from individual donors and took-in $192,987.50 in PAC monies. Rehberg also received $700 from political party committees.

Duffy said the second quarter numbers show just how important Montana's U.S. Senate seat is to both parties.

"I think both candidates had really good quarters," Duffy said. "I know that Democrats will make a quite a lot of Tester's cash-on-hand advantage, but the reality is pretty simple: in a race like this that is a huge priority for both parties, there's going to be no money difference. Neither of them are going to have to worry about money."

BREAKING NEWS: Activists lock down Montana Governor’s Office over oil pipeline

2011-07-12T13:04:00.001-06:00

UPDATE: Here’s the raw video from today’s meeting between environmental activists and Gov. Brian Schweitzer. Warning: there is some harsh language that may not suitable for all viewers.

I’ll have more on this as the day goes on, including photos and video from today’s protest in Gov. Brian Schweitzer’s office, but here’s the latest.

More than 100 environmental activists from across the country descended on Schweitzer's office Tuesday morning to demand that he rescind his support for the Keystone XL oil pipeline and the Exxon Mobile megaload transportation project.

Schweitzer met with the rowdy group of activists in the reception room of his office, but refused to meet their demands that he give up support for the massive pipeline project and the transportation project to serve the Canadian tar sands. Activists from Northern Rockies Rising Tide, Earth First! and other environmental groups said last week's rupture of an ExxonMobil pipeline that fouled dozens of miles of the Yellowstone River downstream of Laurel is a prime example of why Schweitzer should "toss big oil out of Montana."

Schweitzer met with the group for about 20 minutes and listened to their complaints and concerns before one of the activists began playing the piano in the reception room, prompting the other activists to jump on tables and dance and chant.

The governor said he hoped the environmental activists could put their passions toward ending the nation's addiction to foreign oil, which prompted boos from the crowed.

Missoula activist Nick Stocks of the Northern Rockies Rising Tide said that the activists were prepared to stay in the lobby of the governor's office indefinitely.

I’ll update this post throughout the day with more quotes from the meeting as well as video.

Schweitzer still supports oil sands/Keystone XL despite tough talk on Yellowstone oil spill

2011-07-11T14:20:00.001-06:00

Gov. Brian Schweitzer has taken a tough public stance against ExxonMobil in the days following the 44,000 gallon Yellowstone River oil spill. Schweitzer has said he’ll be on Exxon “like smell on skunk” and that the Yellowstone River won't be clean, "until Montana says it’s clean.” Schweitzer has publically accused Exxon officials of not being transparent, directing security guards to keep the press away from the unified command center, and not being honest about the true nature of the spill. He's said that the company's interests "are not aligned with Montana's interest," and that ExxonMobil officials' "primary goal here was to limit the liability to the shareholders, not to be straightforward with the details of the spill and subsequent cleanup."

One Politico headline initially proclaimed that “Montana gov has boot on neck of ExxonMobil,” though the headline was recently changed to somewhat less hyperbolic “Montana gov on ExxonMobil like 'smell on a skunk.’”

Many environmental groups – including representatives from the National Wildlife Federation on a conference call to reporters last week — have lauded Schweitzer for his hard-line approach to dealing with ExxonMobil during the disaster.

But others have accused Schweitzer of talking out of both sides of his mouth on the issue. They cite Schweitzer's ardent support for coal, oil and gas development in Montana, his backing of ExxonMobil’s plan to truck more than 200 massive Korean-built tar sands processing modules across the state into Canada, and his support for Keystone XL pipeline, which would pipe Canadian tar sands crude (the same type of crude that fouled the Kalamazoo River when an Enbridge Energy pipeline burst there last year) from the Montana-Canada border to refineries along the Texas Gulf Coast.

Schweitzer on Wednesday told NPR On Point host Tom Ashbrook there is no contradiction between his support for fossil fuel development and his hard-lined response to ExxonMobil’s cleanup of the Yellowstone:

“We’re going to continue to develop energy in Montana. We’re an energy state. But we will not be a sacrifice zone for this energy’s needs. We will develop this energy on our terms, we will protect the landscape and the wildlife of Montana for this generation and future generations, and that energy that we develop in Montana will be developed on our terms.”

The Montana Environmental Information Center’s Jim Jensen doesn’t buy the notion that fossil fuel energy development can be “done right,” as Schweitzer and others claim.

“They’ve never done it right yet,” Jensen said on the same hour-long radio program.

As for Schweitzer, Jensen had this to say:

“Just two weeks ago he had a well-publicized meeting here in Helena with ExxonMobil executives and the result of that was him telling us that we should trust them to haul these massive loads of equipment up the Snake River, up the Lochsa River in Idaho and then the Blackfoot River in Montana into Alberta where they are developing these massive, hideous tar sands…he is a short-skirt cheerleader for that project.”

Missoula Independent columnist and former longtime environmental lobbyist George Ochenski also criticized Schweitzer for his continued support of the megaloads and Canadian tar sands development:

“Schweitzer has been a big booster of allowing Exxon to ship mega-loads of oil production equipment to Alberta's tar sands on Montana's two-lane highways. He also cheers on the proposed Keystone XL pipeline, which would be two and a half times larger than Exxon's ruptured line and transport tar sands crude across Montana. We can only hope when he finally gets a first-hand look at the destruction such corporate failures engender, he might reconsider his far-too-cozy relationship with Big Oil. His allegiance should be to Montanans, not Exxon Mobil.”

I recently asked Schweitzer if his lack of trust in ExxonMobil and their lack of transparency in dealing with the Yellowstone River oil spill has colored his views on the Keystone XL pipeline or Exxon’s impending megaload transportation project.

Here’s what he had to say:

“Well, as I've said from the very beginning, we would trust but verify. But at least as for the pipeline division I'm down to verifying and then verifying again.

“Any study that has been conducted on megaloads has been conducted within the context of the Montana Environmental Policy Act, and (the company) and the Montana Department of Transportation are following the Montana Environmental Policy Act to the letter of the law, as the public expects us to do.”

How much oil leaked into the Yellowstone?

2011-07-08T17:30:00.001-06:00

A friend got me thinking about just how much crude oil we can reasonably estimate really did leak into the Yellowstone River during the 56 minutes it took ExonnMobil Pipeline Company to shut down the Silvertip Pipeline that burst last Friday.

ExxonMobil continues to stand by their estimate that 1,000 barrels, or about 44,000 gallons, leaked into the river late Friday night. Then again, ExxonMobil also said it only took 6 minutes to shut down the pipeline, then it was 30 minutes “at most,” and then we we finally learned through documents from the US Department of Transportation Pipeline and Hazardous Materials Safety Administration that it took 56 minutes to shut down the line.

So, as Gov. Brian Schweitzer likes to say, I pulled out my $2 calculator and did some calculations:

40,000 bbl a day/24 hours in a day=1,666.66 bbl per hour

1,666.66 bbl per hour/60 minutes per hour=27.77 bbl per minute

27.77 bbl per minute x 56 minutes= 1,555.55 bbl

Certainly there are other factors to consider. We don’t know how big the rupture was/is, and therefore what percentage of the oil flowing through the pipe was spewing out and under what pressures and volumes. We also don’t know how much oil was in the broken section pipe between the shut-off valves, or how much of that oil leaked into the river. We also don’t know if the pipeline was running at the 40,000 barrels per day volume, or if it was running at higher or lower volumes. So it may be premature to say that ExxonMobil is underestimating the amount of oil that leaked into the Yellowstone River by more than a third.

Then again, given the lack of transparency that lead Schweitzer to pull the state out of the unified command, and the track record of other oil giants when it comes to the size of oil spills—for example, BP underestimated the Deepwater Horizon spill by up to five times; a recent Enbridge Energy pipeline leak in Canada went from four barrels to 1,500 barrels; Enbridge initially estimated that it’s pipeline leak in Michigan dumped 819,000 gallons of oil into the Kalamazoo River a year ago, that number was later upped to 1 million gallons—I think it’s probably a safe bet that we’re going to learn more oil spilled into the Yellowstone River than what we’re currently being told.

Use of dispersants on the Yellowstone River?

2011-07-08T14:07:00.001-06:00

Oil dispersant and a sheen are seen on top of the water in the Gulf of Mexico on Wednesday, May 5, 2010 off the coast of Louisiana in the Gulf of Mexico. AP Photo/The Houma Courier, Matt Stamey

Gov. Brian Schweitzer just sent another letter to ExxonMobil officials asking for more information about last Friday’s oil spill on the Yellowstone River, and in it he requests information about the use of dispersants used to clean up the oil.

Schweitzer addressed the letter to ExxonMobil chairman and CEO Rex Tillerson (whom CNN Money ranked #6 on its “25 most powerful people in business” list) and ExxonMobil president of refining and supply Sherman Glass.

According to the letter, Schweitzer wants to know exactly what’s in the estimated 44,000 gallons of oil that leaked into the river one week ago:

“It is imperative that the State of Montana receive all the background documentation on the type of crude oil that was in the ruptured Silvertip Pipeline. I am asking that you provide the last three years of data analysis that ExxonMobile (sic) possesses on the type of crude oil in that pipeline. This includes the viscosity, volatility, and toxicity analysis. Also, please provide any test data that the company possesses for the most effective dispersant for the crude oil that has spilled into the Yellowstone River and the recommended volume of dispersant for that spill.”

The thing that stood out from the letter was this line:

“…please provide any test data that the company possesses for the most effective dispersant for the crude oil that has spilled into the Yellowstone River and the recommended volume of dispersant for that spill.”

Most Americans first learned about the use of dispersants during the catastrophic BP oil spill in the Gulf of Mexico. These are the chemicals oil companies use to break up and “clean” oil from the surface of the water.

At one point, according to ProPublica, BP bought-up nearly one-third of the world’s supply of dispersants and began pumping hundreds of thousands of gallons of the chemicals onto the surface of the Gulf—and thousands of feet beneath it— in an effort to break up the steady flow of oil from the ocean floor.

As we all soon learned, dispersants have their own environmental and health problems that in some cases could be worse than the oil itself:

From ProPublica:

“There is a chemical toxicity to the dispersant compound that in many ways is worse than oil,” said Richard Charter, a foremost expert on marine biology and oil spills who is a senior policy advisor for Marine Programs for Defenders of Wildlife and is chairman of the Gulf of the Farallones National Marine Sanctuary Advisory Council. “It’s a trade-off – you’re damned if you do, damned if you don’t -- of trying to minimize the damage coming to shore, but in so doing you may be more seriously damaging the ecosystem offshore.”

That’s because dispersants themselves contain unknown toxins. We don’t know what those toxins are because the companies that make them claim their make-up is a “trade secret.”

And the risk isn’t just to the environment. As the New York Times reported, oil clean-up workers exposed to dispersants in the Gulf soon began exhibiting health problems:

“…seven crew members aboard fishing vessels who had been working to clean up Breton Sound, southeast of New Orleans, blamed the chemicals for health complaints including nausea, shortness of breath and high blood pressure.”

According to this report on the Gulf Oil Spill Health Hazards:

“The combination of detergent and hydrocarbons ingredients in dispersants with chemicals in crude oil is especially hazardous if someone inhales contaminated water spray. The dispersant-oil complex in micelles can coat lung surfaces causing lipoid pneumonia, hypersensitivity pneumonitis, asthma and other serious health problems.”

Read the report at the link above for more more detailed information on the hazards.

As far as Schweitzer’s request for any “test data,” I doubt ExxonMobil will be all that forthcoming with the information. After all, environmental groups who sued nearly a year ago to try to find out what was in the dispersants being pumped into the Gulf of Mexico are still in federal court.