HomeMy WebLinkAbout06-13-22 Correspondence - S. & L. Gilliland - Lyman Creek •
June 7, 2022
Cyndy Andrus
Mayor
City of Bozeman
121 N. Rouse Avenue
Bozeman, MT 59715
Dear Cyndy:
As you probably know, we have been in litigation with the City of Bozeman to protect Lyman Creek, an
important spawning creek, from being dewatered. You also probably know that we have been working
hard to successfully resolve this matter for both parties. What you may not know is the background or
that, while we have recently submitted another proposed settlement, we have yet to see any real
evidence of the City's desire to work towards a mutually beneficial solution.
By way of background, let's start with some basics. Lyman Creek is so important to the Gallatin Valley
that Trout Unlimited has taken an active role in preserving the creek as a fishery and as a source of
water flowing into Bridger Creek and the East Gallatin River. As Pat Byorth of Trout Unlimited puts it,
Lyman Creek is one of the five most importontspowning creeks for trout in the Gallatin Valley.
And it's not just Trout Unlimited.After the Montana FWP conducted a survey of Lyman Creek,they
deemed it "a spawning tributary and nursery stream for both rainbow trout and brown trout residing in
Bridger Creek or the East Gallatin" and said that"this stream is clearly an important component of the
larger Bridger Creek ecosystem."
So, what are our concerns? They start with the City of Bozeman's illegal, unpermitted diversion of
Lyman Creek that has reduced instream flow,which has already adversely affected trout and wildlife
habitat in the area and negatively impacted our water rights.
Here's what happened. We first approached the City about its actions in 2016. The following year we
proposed a settlement agreement to address our concerns that provided for a minimum flow to the
creek to support the fishery and wildlife habitat in its present form.
The City flatly rejected our proposal. The City said that it had no interest in entering into any binding
agreement with us that would save the Lyman Creek fishery and habitat. More recently,your external
legal counsel, Peter Scott, suggested that the City has no problem with drying up this basin and he
pointed to several examples of dry basins around the Gallatin Valley.
Is drying up Lyman Creek a strategy to solve the Bozeman's water problems? We hope not.The fact is,
the City possesses a broad portfolio of water rights that should be weighed more fully into its water
supply discussions.
After the City's rejection of our offer, our only recourse became the legal and regulatory avenues of the
DNRC, district court and water court. We filed suit in district court first. Instead of arguing the merits of
I
the case, the City argued (at great expense) that we did not have the standing to sue. We lost in district
court and later, on appeal, at the state supreme court. The Montana legislature, duly alarmed, acted to
close this loophole in the water code.Then, in 2019,the DNRC notified the City of its unlawful diversion
but, for reasons unclear to us, has not enforced its own ruling.
In any case, our water court suit against the City continues. We have a strong legal position and will
continue to pursue our cause to fruition. That said,we still believe a settlement is in our mutual best
interest. The gist of our proposed agreement is that the City would agree to keep a minimum flow in
Lyman Creek(1 or 2 cubic feet per second depending on the time of year)to support existing trout
spawning (vs. dewatering the creek and killing off the trout) and to maintain the current wildlife habitat.
In return, the City would get the perfection of its water rights to Lyman Creek, which it does not
currently have, and more water when there are high flows.
We have made it clear to Peter Scott and to Greg Sullivan, Bozeman's City Attorney,that we are open to
a settlement and believe that this litigation can be easily settled. Mr. Scott has said for the last six
months that he is working on settlement documents.
In the interest of reaching a solution in the face of continual delays,we provided our most recent
proposed settlement to Peter Scott in early April. Trout Unlimited provided scientific and technical
support so that our proposal provided for both Bozeman's need for clean municipal water and a
minimum instream flow in Lyman Creek to preserve the spawning grounds,fishery and wildlife habitat.
After six years we hoped to finally have a constructive conversation with the City to reach an agreement.
However, when we finally received Mr. Scott's reply last week we concluded that we need your help.
Why?
Mr. Scott's response, if implemented, would ensure the total destruction of the fishery at Lyman
Creek.
Is this your policy? If not, let's talk. But if it is your policy we will be forced to take our case to the
people most affected by your proposed actions, the people of Bozeman. Bear in mind, Mr.Scott
recently told our counsel that all settlement discussions would cease if we made any effort to educate
the people of Bozeman about this matter.
We are sure that we don't have to remind you that the City is a public entity and that no action (or
inaction) by the City should be hidden from public view. Either way,we believe the people of this
community would have a heightened interest in this issue once it is brought to their attention.
The intent of this letter is not to threaten but to bring you up to date on this long-standing issue and to
provide every opportunity to resolve this matter without going public. We recognize and support your
need to provide water for a growing population—and we are confident that those needs can be met
without endangering the wildlife eco-system supported by Lyman Creek that attracts so many to the
area.
To sum things up, we have been trying to resolve this issue with the City without success for six years.
Should we be unable to make progress towards a mutually beneficial settlement quite soon, we will
begin to educate the public along the lines of your recent campaign in support of the new firehouse.
That said,we believe that the best course of action right now is for us to talk face to face. Please let us
know if you are open to a friendly and constructive conversation and what you think the best next step
is to resolve this issue amicably.
We look forward to working with you to help keep Bozeman the most livable place.
Sincerely,
L)
Sin Gillil nd Lance Gilliland
713.392.8350 713.447.3530
siriliz@hotmail.com lancegilliland@gmail.com
CC: Christopher Coburn Terry Cunningham
Jennifer Madgic I-Ho Pomeroy
Greg Sullivan Pat Byorth,Trout Unlimited