Council decides to stay out of Whitefish's doughnut suit

By HEIDI DESCH/Hungry Horse News

Columbia Falls has decided it will stay out of the City of Whitefish's lawsuit against Flathead County.

The Columbia Falls City Council on Monday decided it would rather renegotiate its interlocal agreement with the County than enter the legal fight.

"I love a fight, but you have to pick the right fight," councilman Mike Shepard said. "If they (the County) want to negotiate with us, we should sit down with them."

Whitefish in April voted to sue the County after Flathead County Commissioners voted to rescind an interlocal agreement. It establishes the city's planning and zoning jurisdiction to one mile outside city limits in the so-called "doughnut" area.

Columbia Falls has the same agreement with the County. Both agreements were set up in 2005. The agreement states that it will be in effect until both parties decide otherwise.

Earlier this month Flathead County District Court Judge Kitty Curtis ruled against Whitefish's request for a preliminary injunction to freeze planning issues while the lawsuit is decided. Whitefish has decided to appeal the issue to the Montana Supreme Court.

Columbia Falls City Attorney Eric Kaplan on Monday updated the Council on the lawsuit.

Kaplan gave the Council a letter from Alan McCormick, who is representing the County in the suit.

The letter states the County Commissioners are willing to "review the entire agreement with fresh eyes to determine whether any other changes are necessary or prudent."

Specifically, the letter proposes amending the termination clause in the interlocal agreement and agreeing upon prior sufficient notice that one party intends to terminate the agreement. The letter states that could be 60 days, 180 days or a time found agreeable.

Also, the letter proposes an amendment that sets up a regular meeting between Commissioners and the City Council to review the agreement.

The Council did not vote on the decision to remain out of the lawsuit, but the members seemed to agree the best option would be to sit down the County Commissioners.

Kaplan said Curtis' decision is on a "very preliminary issue."

Under state law, the county has the power to grant the city extraterritorial zoning power. The problem is that the interlocal agreement is essentially a contract between two jurisdictions and state law doesn't address that situation.

"When the legislature write statute it doesn't take into consideration every single thing that might happen," said Kaplan. "It didn't give thought to if the city and county entered into a contract."

Kaplan said that that Curtis' did not rule on that specific issue.

Although she does make mention of it in her ruling on the injunction. She states that Whitefish is "not likely to prevail" in it's argument that the interlocal agreement requires consent of both parties to terminate the agreement.

Kaplan presented the Council with several scenarios for how the case might play out.

He said the Supreme Court could affirm the ruling or reverse the decision and in both cases sent the case back to District Court for trial. The Supreme Court could also decide to take up the entire case itself.

He noted that in deciding the case the Supreme Court may rule specifically on the Whitefish issue or could make a decision that would impact all cities and counties.

"You could ask permission to file a brief with the Supreme Court … or you could sit back and let Whitefish do it. That may or may not be a good strategy," said Kaplan.

Kaplan told the council he estimated the cost for Columbia Falls to enter the suit to be between $4,000 and $6,000.

The Council agreed to sit down with the County and renegotiate the agreement. However, some council members were cautious about the decision.

"I feel that area impacts out city and we want jurisdiction," said councilman Doug Karper. "Right now we have good relationship with the commissioners — that could change."