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For nearly twenty five years, BKBH attorneys have routinely dealt with many of the federal and state laws governing those public lands, including the rules and doctrines governing disposition, allocation, and protection of this land and the natural resources contained within those lands. We routinely deal with legal questions affected by such matters as the history of public land law, the constitutional authority to regulate federal lands, and the relevant legal authorities enacted by Congress and the States to do the same. Our public land attorneys, who are among the most qualified specialists in this complex area of the law, have dealt with a wide range of legal controversies with regard to such critical resources as water, minerals, timber, wildlife, and recreation, and the preservation of each and all of these resources. Most recently, our attorneys have been closely involved in unprecedented federal legislation endowing large public charitable trusts from the sales proceeds of public lands on two of Montana's largest federally constructed reservoirs. Another significant part of BKBH’s practice over the years has been in the representation of Montana’s largest private landowner, the railroads and other investor owned utilities. These companies own millions of acres of lands that are used every day for the transportation of commodities and energy. BKBH attorneys are regularly called upon to assist these companies on a wide array of real estate issues, ranging from litigating condemnation actions to drafting, filing and litigating private easements. 1. BKBH's Public Lands Cases: Fort Peck Lake Association v. U.S. Fish & Wildlife Service and the U.S. Army Corps of Engineers (2003) - Mark Etchart and Steve Browning represented a second cabin-owner association [Fort Peck Lake Association] that was also successful in its pursuit of federal legislation authorizing the sale of federally owned cabin sites at Fort Peck Lake in Northeastern Montana. Fort Peck Lake is one of the largest man-made lakes in the world. Among other things, the lake serves nearly 400 cabin owners who lease their cabins from the U.S. Army Corps of Engineers. The sales proceeds from the Fort Peck Lake cabin sites (which may total as much as $10 million) just as is the case with Canyon Ferry cabin sites, are required to be deposited into the Montana Fish & Wildlife Conservation Trust. The Fort Peck Cabin site sales are not expected to begin until 2006. Also, unlike the Canyon Ferry sales funds, which are required to be part of a permanent endowment, the Fort Peck sales funds that are deposited into the Montana Fish & Wildlife Conservation Trust are not part of a permanent endowment and are available for immediate use to acquire lands or interests in lands within or adjacent to the Charles M. Russell National Wildlife Refuge in Northeastern Montana. Canyon Ferry Recreation Association v. Bureau of Reclamation (2002) - For more than five years Steve Browning and Mark Etchart worked with representatives of the 265 cabin site lessees at Canyon Ferry Reservoir in Western Montana to convince Congress to transfer ownership of the cabin site lots to the lessees. Canyon Ferry Reservoir, a 26 mile long fresh water lake with more than 76 miles of shoreline, is one of more than one hundred federally funded manmade lakes in the Western United States. Most of these reservoirs were built by the federal government with the intention of serving multiple purposes, such as flood control, electrical power generation, recreation, etc. As a part of the recreational component for the Canyon Ferry Reservoir, when its dam was built in the 1950’s, 265 lots (sized on average at about ½ acre per lot) were leased by the federal government to the public. Over the ensuing years there were so many conflicts in these lease arrangements, that the cabin owners finally decided that the best solution would be for them to buy their cabin sites at fair market value. BKBH attorneys worked with the Canyon Ferry cabin owners and the Montana Congressional delegation and congressional committee staff to fashion and implement this comprehensive legislative solution, which culminated with the passage of unprecedented federal legislation that authorized the sale of the cabin sites to the cabin site lessees. As a condition of the sale, 90% of the sales proceeds were deposited in a permanent public trust, call the Montana Fish & Wildlife Conservation Trust (the Trust). The Trust is a perpetual trust, where the income from it is dedicated to the acquisition of private land for public use. As of 2005, the Trust’s corpus was more than $15 million, and more than $1 million in Trust earnings has already been granted from the Trust to various public groups who will use these grants to acquire private land thereby allowing greater public access. 2. BKBH's Subdivision Practice - In addition to its "public lands" transactional successes, BKBH routinely assists landowners with obtaining subdivision approval after initial applications have been denied. BKBH possesses the proven ability to assist a client, be they a seller or buyer, in the sale or acquisition of raw, undeveloped land, and then shepherd them through the state and local regulatory maze to achieve their development goal. This ability is the core service of any law firm’s land-use transactional practice. Leslieton Townsite (2004). Andy Adamek represented a developer who owned 22 acres. BKBH petitioned the state court, seeking abandonment of an unmarketable old townsite plan and then convinced the court to abandon the townsite and create six lots. The client was left with his dream retirement lot overlooking Hauser Lake, plus five additional marketable lots. Awesome Views Subdivision (2003). A landowner failed to subdivide a 14 acre parcel, when the county commission rejected the initial application. Andy Adamek was retained to assess the merit of a state court action appealing the denial, and he convinced the client to consider placing a perpetual agricultural easement upon the property. This repackaged subdivision application is now used by landowners and governing officials as a model for future residential development of smaller parcels in the area. Black Eagle Subdivision (2001). A developer failed to subdivide a 12 acre parcel, as his application was denied by the county commission. Andy Adamek was retained, and he crafted a revised subdivision proposal that was ultimately approved as a model for future residential development in the fragile urban/wild-lands interface zone surrounding Helena. The end result was a unanimous approval by a governing body and a pleased client. The concessions offered for approval actually increased the resale value of the divided parcels. BKBH provides legal services for most aspects of real estate transactions, including contract negotiations, zoning and permitting issues, financing, title insurance issues, and all other matters related to closing the transaction. Our attorneys have extensive experience closing complex commercial and residential transactions. The firm's commercial practice group assists a variety of different types of clients including developers of office buildings, shopping centers, industrial facilities, apartment complexes, hotels and motels, and planned unit developments. BKBH's Real Estate Litigation Practice - A significant part of BKBH's Real Estate Practice involves litigation. Listed below are representative cases handled by BKBH's Real Estate Practice Group: Sandon v. The Burlington Northern and Santa Fe Railway Company (2003). Mark Etchart represented The Burlington Northern and Santa Fe Railway Company ("BNSF") in this easement case. The Plaintiff sought to maintain access over property of BNSF claiming an easement by prescription and an easement by implication. In addition, the Plaintiff sought damages for destruction of the easement and punitive damages. The case was won on summary judgment and the subsequent appeal to the Montana Supreme Court was voluntarily dismissed with prejudice. Scariano Construction v. The Burlington Northern and Santa Fe Railway Company (2002). Plaintiff initiated this action against BNSF for a construction lien foreclosure and money damages pursuant to a theory of unjust enrichment. Upon completion of discovery, BNSF filed a motion for summary judgment. Shortly thereafter, the Plaintiff stipulated to the dismissal of BNSF with prejudice and without recovery. Mark Etchart represented BNSF. Wisher’s Salvage v. The Burlington Northern and Santa Fe Railway Company (2000). Plaintiffs initiated this action against BNSF claiming property damage, loss of use, mitigation costs and sought punitive damages. The Plaintiffs alleged that their residences or businesses were damaged by the flooding of Ashley Creek near Kalispell, Montana due to insufficient size or number of culverts beneath the adjacent BNSF rail line to adequately drain the creek during peak flows. Motions for summary judgment were filed, but the case was favorably resolved at a settlement conference well in advance of trial. Mark Etchart represented BNSF. Brown v. Adams (1997). Mark Etchart represented Adams in this action for injunctive relief. Plaintiff sought a preliminary injunction and permanent injunction enjoining and restraining Adams from proceeding with the construction of their dream vacation home on their property adjacent to Flathead Lake in northwestern Montana on legal theories centered on the sanitation and subdivision laws. Plaintiff also sought an order requiring the removal of all improvements made on the Adams property. BKBH defended Adams and successfully secured the Court’s denial of the preliminary injunction application after an extensive show cause hearing. The case was ultimately dismissed without success by Plaintiff. Judith Basin County v. Burlington Northern Railroad Company (1996). Mark Etchart defended the Burlington Northern Railroad Company ("BNRR") in an action to recover fines in excess of $150,000 for the alleged failure to properly maintain right-of-way fences. The case settled without any recovery by Judith Basin County. Return to Commercial Practice |