The Town of Plains held a ground breaking ceremony at the site of its new sewer lagoon last Thursday morning, yet the positive occasion cast a shadow of unfinished business for Nick and Erika Lawyer, who sold the property to the town for the future sewage treatment plant, but feel the town has not lived up to ita end of the bargain.

"I'm looking forward to the day I don't have to worry about the sewer treatment facility washing down the Clark Fork River," said Plains Mayor Dan Rowan, who stood with council members Chris Allen, Joel Banham and John Sheridan, Shari Johnson, the town's contract engineer, and three project engineers for the ground breaking event, where Prospect Construction, Inc. is going into its third week of working at the site. Rowan was pleased that the Lawyers had withdrawn their request to keep everyone off the property, but was concerned of some of their bad feelings between them and the town.

"I don't see how anyone can be upset with us. All we are asking for is fair and just compensation for property the town is taking from us as provided by the Montana Constitution and eminent domain Law," said Nick Lawyer, who feels that there are some who look at him as the bad guy for standing up and asking to be treated fairly. The Lawyers sold the land and provided the deed to the town so work on the sewer lagoon could get started, but Nick said there are several issues that have yet to be settled and they are now holding the bag for more than $50,000 worth of added legal and professional expenses.

Twenty-seven acres of the adjoining property to the 10-acre lagoon site are considered a well setback area and are restricted by law from having a well. In the negotiations the town agreed to relocate the well to another site on Lawyer's property, but it has not been done. "We have said time and time again that we will move the well - it's in writing - so I don't see what the problem is," said Rowan, who didn't take the position of interim commissioner because he wanted to see the lagoon issue resolved. Nick Lawyer said he's heard over and over from the mayor since last October that the town will take care of moving the well, but to date he still has no well. "It's one thing to say you're going to do it, but we haven't seen any motion to complete or even start doing that. 

The Lawyers had selected two sites where the well could be placed, but said the Department of Natural Resources and Conservation and the Department of Environmental Quality has to first approve the site, something he said takes 18 months, and he still hasn't heard if that's been done. According to court documents, the Lawyers had to notify the town of a location of a new well by April 1, and the town would have the new well relocation complete by June 1. The mayor said he hasn't seen any correspondence about any selected places for the well, nor has Johnson.

The Lawyers hired an attorney in an effort to resolve issues that were in the agreement, which included the well move, a water rights issue and a dispute over three additional acres that the town took without the Lawyers' knowledge or permission. In the purchase agreement, an additional 27 acres were identified as restricted land, and although the parcel is still owned by the Lawyers, no well can be placed on it, something the Lawyers reluctantly agreed upon. However, when the Lawyers discovered there were another three acres outside the 27 acres that also could not be used, they felt they should be in line for further compensation at a cost of around $27,000. Erika Lawyer addressed the members of town council about the matter at a special meeting in March. The council discussed the issue at great length, according to Chris Allen, the council president. In the end the council members wouldn't make a motion on the request, which made it a dead issue, said Allen. "Every council member was in agreement that this wasn't even worth addressing," said Allen, who felt that the town was generous in what was paid.

Rowan said that according to state law, no one can put in a well within 100 feet of another person's property, which in this instance amounted to the three acres. "It's a technical and legal issue and we have no control over it," said Rowan. The Lawyers' attorney, Breeann M. Johnson, a specialist in water rights related permitting matters, said that it is not true that DEQ does not allow a well within 100 feet of a property boundary line. The town's attorney, Richard Gebhardt, said they were using two DEQ regulations, but Johnson said the ones he cited did not require a 100-foot property line setback. "In a letter from DEQ, the DEQ confirms that there is no 100-foot property line setback in its regulations," according to a letter from DEQ to Johnson.

"Ultimately, the three-acre issue will be decided by arbitration or a judge," said Rowan. "Casting this as the town attempting to steal, take without compensation, etc, is a childish public relations campaign and simply isn't true. The town will pay any legitimate claim owed," he added.

In March, the Lawyers requested through the court that the town not be allowed on to the property, which would have halted the construction work, but they rescinded the request on April 8 because they didn't think it would be worth pursuing and decided to focus on trying to force the town to negotiating with them. "This is our property and we don't want to have it taken or restricted for free, which is exactly what the town is trying to do," said Nick Lawyer. "This is not about generosity. Erika and I don't need a handout. We just want to be fairly compensated for what is taken from us. It still doesn't make sense to me. They chose one of the more expensive locations for these new lagoons and are acting surprised by the price tag," adding that he feels they were forced to sell the land to the town.  

The town received the deed for the 10-acre property and a 27-acre well setback in January after agreeing on a price of $80,000. With legal fees and other associated costs, the price tag for the town to the Lawyers was $470,000. However, the Lawyers had to take additional legal action because the town had not fulfilled its promise to rectify the remaining issues. "We are protecting our rights under the Montana constitution. This was our property that the town forced us to sell. We deserve to be fully and fairly compensated for that sale as the state constitution and law requires," said Nick Lawyer.

"On four separate occasions we've tried to negotiate with the town, and on three of these four times the council declined to even consider negotiating with us," he said. And now, they are having to return to court to get the town to follow through with the unresolved items. "The town's taking of our property substantially altered our plans for our property, which could have been worth much more were it not for the condemnation," said Nick. "The idea that we've been generously compensated is simply false as these are payments the town was legally required to make as a consequence of their decision to force us to sell the property via eminent domain."

What continues to confuse the Lawyers is that the town focused on their property rather than any of the other 24 parcels the town first considered. "I think the narrative that we're sore losers is absolutely false," said Nick. "They seem upset that they have to compensate us for the full extent of our loss for what they took from us, even though that's what the Montana constitution requires of them.

"During this entire project we have not tried to be obstructionists. But when you're backed into a corner with your back against the wall you use whatever you can and ultimately, we were just trying to level the playing field," said Lawyer. "Erika and I want to be very open and up front about why we are asking for legal relief given the important nature of this project. As we've said before we believe this project has to happen, but we should not be asked to give up property without just and fair compensation. And the town is asking us to do just that."

Lawyer noted that in January the town was up against a last-minute grant deadline. He said the mayor called him multiple times asking him to transfer the property so they would not lose the grant money and that the town would pay them for the additional taking. "We did not want to see the town lose its funding, so we transferred the property and trusted that Mayor Rowan would keep his word," he said. "Fundamentally, they backed out of Mayor Rowan's promise.

"Someone needs to stand up to the town and say enough is enough. We have compromised a lot on this project and abandoned our plans for this property so that the town can have a new sewage lagoon system," said Lawyer, who also noted that the entire experience has been a tough lesson to learn - "that you can't just take property through eminent domain without just compensation." He said he hopes that the next time the town uses eminent domain to take someone's property, they are more considerate of the issues. "The power of big government is profound, and it should be used with great care and responsibility."

"I think, at the end of the day, we're disappointed that Mayor Rowan didn't keep his word on these agreements, and that the council doesn't want to pay us for property they have restricted," said Lawyer, who is hopeful that the court will require the town to pay for property that they were forced to abandon. Rowan said he told the Laywers he would represent their position to the council and did that to the point of someone asking him whose side he was on. "I absolutely kept my word to them, but the council dug their heels in and said no. I presented their side, but council didn't go that way," said Rowan. "My ultimate goal is to have a functioning sewer system for the thousand-plus people of Plains," he said.

"We want the town to have a great sewer system, but it's not up to Erika and I to pay for it out of our pockets and we are going to use the legal system to enforce the basic requirements of the Montana constitution that protect our property rights," Lawyer stated. "All the legal fees could have been avoided if they would have just sat down and worked with us."