Plaintiffs' Answers to Def 1st Discovery RequestsI JACK R. TUHOLSKE
Attorney at Law P.C.
2 234 East Pine Street
P.O. Box 7458
3 Missoula, Montana 59807
Telephone: (406) 721-6986
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Attorney for the Plaintiffs
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8 MONTANA FIRST JUDICIAL DISTRICT, LEWIS AND CLARK COUNTY
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10 MONTANA ENVIRONMENTAL
11 INFORMATION CENTER INC.,
CITIZENS FOR A BETTER FLATHEAD
12 INC.
13 PLAINTIFFS, Cause No. CDV 2000-396
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15 vs. Plaintiffs' Answers to First
Discovery Requests
16 MONTANA DEPARTMENT OF
NATURAL RESOURCES AND
17 CONSERVATION, MONTANA BOARD
OF LAND COMMISSIONERS,
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19 DEFENDANTS.
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Comes now the Plaintiffs, and answer the Defendants' First Discovery Requests as
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follows:
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INTERROGATORY NO. 1: Please identify all witnesses you expect to call at hearing, stating:
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a. Their name, current address and telephone number:
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b. A brief description of the subject matter upon which each witness will testify:
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ANSWER: None identified at this time.
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INTERROGATORY NO. 2: Please identify each person you or your attorney expect to call as an
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expert witness at hearing of this action stating:
a. Their name, current address and telephone number:
b. A brief description of the subject matter upon which each witness will testify, and;
c. The substance of the facts and opinions on which the expert is expected to testify at
the time of hearing;
ANSWER: None identified at this time.
INTERROGATORY NUMBER 3: Please identify and list all exhibits that you intend to rely on
at the time of hearing:
ANSWER: None at this time.
INTERROGATORY NUMBER 4: Please describe all efforts taken by the Plaintiffs to
participate in the Kalispell City- County Planning Board Process for adoption of a neighborhood
plan upon Section 36, Township 29 North, Range 22 West, MPM, in Flathead County, Montana:
ANSWER: Plaintiffs object to this interrogatory as irrelevant. Plaintiffs' participation before
the Board is not relevant to their suit under MEPA against the state of Montana. Without
waiving such objection, Plaintiffs' members, particularly those of Citizens for a Better Flathead,
provided detailed comments to government entities involved in the planning process for the
adoption of a Neighborhood Plan and the associated Memorandum of Understanding. Those
comments are a matter of public record. In addition Plaintiffs testified before the Montana Board
of Land Commissioners on these same issues, including that MEPA compliance is required on
the Neighborhood Plan.
5. REQUEST FOR PRODUCTION: Please produce all documents, photographs, charts, reports
or other materials assembled, prepared or considered by witnesses, individuals or experts
identified by you in the aforesaid or following interrogatories:
ANSWER: See preceding answer.
6. REQUEST FOR PRODUCTION: Please produce all documents and materials identified in
your answers to the aforesaid or following interrogatories and requests for admissions:
ANSWER: The following documents have been thus far identified and are available at the office
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I of Plaintiffs' counsel for inspection and copying. Discovery continues with respect to
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Neighborhood Plan, including drafts and maps
Minutes of the Board
Memorandum of Understanding
City of Kalispell Memo 4/17/2000
DNRC Memo 4/7/2000
City of Kalispell Utility Project planning document
Chamber of Commerce Letter 4/17/2000
DNRC letter 3/29/99
Checklist EA 3/17/97
DNRC Response to Comments for meeting held 12/14/98
March 2000 Land Board Presentation
Flathead Regional Development Office documents, staff reports
Minutes of Planning Board
9. REQUEST FOR ADMISSION: Please admit that the state defendants Montana Department
of Natural Resources and Conservation and the State Board of Land Commissioners do not have
the legal authority to control the outcome of any advisory decision of the Kalispell City -County
Planning Board, the Kalispell City Council or the Flathead County Board of Commissioners:
ANSWER: Plaintiffs object as irrelevant, vague and calling for a legal conclusion, and the same
is therefore denied.
10. INTERROGATORY : If you deny any portion of Request for Admission No. 9 above,
please state all of the facts upon which you base your denial:
ANSWER: See preceding answer.
11. REQUEST FOR ADMISSION: Please admit that the neighborhood plan for section 36
recommended for adoption by the Kalispell City -County Planning Board does not mandate any
change in the use of Section 36 and that the neighborhood plan permit current uses to continue.
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I ANSWER: Denied
12 INTERROGATORY: If you deny any portion of Request for Admission No. 10 above,
please state all of the facts upon which you base your denial:
ANSWER: The Neighborhood Plan states on its face that its purpose is to guide and control
development on Section 36. It authorizes a range of uses currently not in existence, such as
commercial, professional and residential uses. Those uses are described in detail in the Plan, its
maps and the exhibits, which further define the types of specific uses that are authorized by the
Plan within the various pods, all of which are different than the current primary use, which is
agricultural. Plaintiffs recognize that the existing ball fields will remain, and those are not at
issue in this lawsuit.
13. REQUEST FOR ADMISSION: Please admit that the State Defendants, DNRC and the
State Board of Land Commissioners are exempt under Section 77-1-121 MCA from the
requirement to prepare an environmental review document under MEPA, Section 75-1-201 MCA
except where there is an active proposal or application before them which proposes the grant of
an new authorization to a specified third party for the use of state land, and where that
authorization constitutes a major state action which may result in significant impacts to the
human environment.
ANSWER: Plaintiffs object to the Request as calling for a legal conclusion and without waiving
said objection the same is denied.
14. INTERROGATORY: If you deny any portion of Request for Admission No. 13 above,
please state all of the facts upon which you base your denial:
ANSWER: See preceding answer.
15. REQUEST FOR ADMISSION: Please admit that the neighborhood plan does not propose
to change any current land use of Section 36.
ANSWER: Denied
16. INTERROGATORY: If you deny any portion of Request for Admission No. 15 above,
please state all of the facts upon which you base your denial:
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ANSWER: The Neighborhood Plan does propose and authorize a change of use for Section 36
beyond the current primary agricultural use; that is the purpose of the development and approval
of the Plan by the Defendants. Those changed uses are set forth in detail in the Plan and related
documents. If the Department had not intended to change the use for Section 36, it would not
have developed and approved the Neighborhood Plan.
17. REQUEST FOR ADMISSION: Please admit that the neighborhood plan does not grant any
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authority to any new entity to make use of any portion of Section 36.
ANSWER: Objected to as vague as to the term "new entity"; it is unclear what new entity is
being described. Without waiving said objection, Plaintiffs deny the same subject to the
qualifications set forth below.
18. INTERROGATORY: If you deny any portion of Request for Admission No. 17 above,
please state all of the facts upon which you base your denial:
ANSWER: The Neighborhood Plan and the Memorandum of Understanding grant DNRC and
the Board the authority to make uses of Section 36 that were not contemplated or allowed prior
to their enactment and approval, and further gives these entities the authority to control such
uses. This is plainly stated in those documents and in other documents. For example, an April
7, 2000 Memo from DNRC to Kalispell officials states that "[R]elative to Section 36, the highest
and best use has been determined by the language adopted in the neighborhood plan. Any
special lease proposals will require strict adherence to the use, phrasing and performance
standards of the plan." Plaintiffs recognize that the Neighborhood Plan and Memorandum of
Understanding require a third party to sign a written lease before construction of new buildings
or other occupancy of state lands can occur.
19. INTERROGATORY: If you deny any portion of Request for Admission No. 17, please
describe what uses of Section 36 have been granted by the state Defendants which do not
currently exist, the identity of the grantee, the conditions of the grant, its terms and the
consideration given for the grant of such use.
ANSWER: As stated previously a third party must sign a written lease that addresses the
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parameters set forth in the Interrogatory, and Plaintiffs do not have knowledge that such leases
have been signed as of this date. As also stated previously, the Neighborhood Plan allows and
authorizes uses of Section 36 that do not currently exist.
Dated'this 29-day of August, 2000.
Jack R. Tuholske
for the Plaintiffs
CERTIFICATE OF SERVICE
The undersigned served a true and correct copy of the foregoing by U.S. mail, postage
prepaid, on August 28, 2000 upon:
Tommy Butler
Michael Mortimer
Montana DNRC
P.O. Box 201601
Helena, �T 59620"
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DEPARTMENT OF NATURA( 2ESOURCES� °
AND CONSERVATION
MARC RACICOT, GOVERNOR
1625 ELEVENTH AVENUE
-STATE OF MONTANA
DIRECTOR'S OFFICE (406) 444-2074 PO BOX 201601
TELEFAX NUMBER (406) 444-2684 HELENA, MONTANA 59620-1601
August 30, 2000
Mr. Jack R. Tuholske
Attorney at Law
P.O. Box 7458
Missoula, MT 59807
RE: MEIC & Citizens for a Better Flathead v. DNRC et al.
Cause No. CDV-2000-396
Mont. 15' Judic. Distr. Ct., Lewis and Clark County
Dear Jack:
I would like to take the deposition of designated witnesses for each of the Plaintiff
organizations concerning the facts as stated in your responses to the Department's first
set of discovery requests in the above -captioned matter. I'd propose that we utilize either
the September 141h or 15`h dates that you have set for the deposition of Tom Schultz.
Please let me know who the designated witnesses are and what date and they can be made
available. I appreciate your assistance in completing this discovery.
Sincerely,
Tommy H. Butler
Special Assistant Attorney General