By John S. Adams
The Montana Free Press
The Montana Supreme Court in a 4-2 ruling rejected Republican Rep. Art Wittich’s appeal seeking a dismissal of a high-profile political corruption lawsuit.
Wittich, who has been accused by the state’s top political enforcer of “quid pro quo corruption” for accepting campaign services he didn’t pay for in his 2010 state Senate race, argued in district court that the lawsuit against him was improper and should be thrown out.
Wittich maintains Commissioner of Political Practices Jonathan Motl had no legal authority to bring the case against him because nobody has ever filed a political practices complaint against Wittich.
Wittich argued to the high court that Motl failed to satisfy certain prerequisites to filing the lawsuit against him, such as making a preliminary determination that there was sufficient evidence to justify prosecution of the action and perform a preliminary investigation.
Anaconda Judge Ray Dayton dismissed that argument last week, but Wittich appealed Dayton’s ruling to the Supreme Court in a move that threatened to postpone a highly anticipated jury trial schedule to take place in Helena beginning March 28.
Motl followed-up Wittich’s appeal to the Supreme Court with a motion asking the court to dismiss it on the grounds that the justices recently, and unanimously, ruled on a nearly identical legal issue in a separate case involving the commissioner of political practices.
In a three-page ruling published on the court’s website around noon on Friday, Chief Justice Mike McGrath ruled that the issues Wittich raised in his appeal are not immediately appealable before trial.
“We conclude that the issues on appeal are not matters implicating the court’s subject matter jurisdiction,” McGrath wrote. “…the arguments raised here are matters of statutory and administrative rule interpretation, not subject matter jurisdiction. Therefore, the District Court’s order denying Wittich’s motion to dismiss this case for lack of subject matter jurisdiction is not immediately appealable.”
Justices Patricia Cotter, Michael Wheat, and Jim Shea affirmed McGrath’s ruling with Justices Laurie McKinnon and Jim Rice dissenting.
In her dissent, McKinnon accused the court of mischaracterizing Wittich’s argument when it stated “there is no contention that the COPP failed to exhaust statutorily required administrative remedies prior to bringing this action.”
“…[I]n fact, Wittich’s undisputed contention is that neither a complaint alleging Wittich as a violator was filed with the COPP … nor has the COPP issued a notice and order of noncompliance against Wittich,” McKinnon wrote.
McKinnon wrote that she believes “Wittich is entitled to have his motion to dismiss for lack of subject-matter jurisdiction adequately briefed and considered by the Court.”
Wittich’s attorney, Quentin Rhoades, issued an email statement Friday expressing surprise at the high court’s handling of the matter, specifically the fact that the court suspended it’s standard operating rules allowing 11 days to file a response to a motion to dismiss. The court gave Wittich’s side seven days to respond to Motl’s motion.
“We were not aware of such a request having been made in this case, and we know of no order that had suspended the rules for this case,” Rhoades said. “Normally such matters, again per the internal operating rules of the Court, are put on the agenda for the Court’s Tuesday afternoon motions conference.
“In any event, we were of course disappointed the court dismissed the appeal, although we do agree with the reasoning of Justices McKinnon and Rice, who wrote in dissent. We are now looking forward to our day in court before a jury of Mr. Wittich’s fellow Montanans.”
It is not immediately known what the impact of today’s ruling will be on the jury trial scheduled for March 28.
Motl declined to comment on the order.
The Yellowstone Art Museum announces the opening of two uplifting spring exhibitions: Harold Schlotzhauer: The Shape of Motion; and The Falcon’s Eye: Nature Photography by Michael Sample. The former exhibition is the third in the YAM’s series of Montana Masters exhibitions, which focus on the work of a diverse selection of mature artists who have contributed significantly to Montana’s respected artistic reputation and traditions. The YAM is pleased to continue the series with the presentation of work by one of Montana’s most prolific and distinctive painters. With decades of experience behind him, Schlotzhauer continues to explore the intersection between the observable and the imagined, creating a vivid visual language that soars beyond the edges of the picture plane. His brand of Modernism is bold and playful, but dazzlingly serious in its intent to create engaging images that make the intangible real. Shapes, lines, and sweeping color dance together in choreographed movement to elicit a personal response from the viewer. Schlotzhauer’s visual language is inspired by myriad sources, including traditional Asian arts, graffiti, children’s toys, and the rhythms of nature.
The exhibition surveys 50 years’ worth of Schlotzhauer’s art exploration, beginning with his art student days in California, where he graduated with a Master of Fine Arts degree with high distinction in 1966 from California College of Arts and Crafts, Oakland, through his retirement from Montana State University in Bozeman, Montana, after teaching there for 28 of his 41 years of teaching in higher education. He was subsequently appointed Professor Emeritus by the University. Since his retirement in 2008, Schlotzhauer has continued painting at his longtime Bozeman studio, which overlooks his home in the Gallatin Valley. This bold exhibition comprises colorful paintings, sculptures, kites, and various embellished skateboards, snowboards, balanceboards, and surfboards.
Complementing the abstract works of Schlotzhauer, The Falcon’s Eye is a long-deserved exhibition of photographs by publisher, philanthropist, and family man, Michael S. Sample, who was known widely for his extraordinarily sensitive nature photographs. Sample’s strong legacy of images is a testament to his adoration of the West. Though the YAM’s exhibition offers up but a miniscule fraction of Sample’s photographic record, visitors who knew Michael’s work best will find favorites that remind them of those published in his annual Montana calendar or other publications or, as he would have hoped, their own adventures in nature.
Through his photography, Sample captured the essence of Western wildlife and geography while revealing his own adventurous yet quiet nature. The subjects of his work range from the sublime view of a single wildflower covered in dew to an epic storm over the Rocky Mountains. In retrospect, this seems an apt analogy for the artist’s wide-ranging life’s work.
Admission to the museum is free to members. Members and the public alike are invited to celebrate these family friendly exhibitions at the exhibitions’ opening reception on Thursday, March 24th, 5:30 – 7:30 p.m. There is a modest admission fee for non-members. The Shape of Motion remains on view through July 3rd, while The Falcon’s Eye continues through August 21st. Visit the museum’s website, artmuseum.org, to learn more about these and the museum’s other exhibitions and programs.
UPDATE: 2016-03-11, 12:35 p.m.: Anaconda-Deer Lodge Chief of Law Enforcement Tim Barkell confirmed Friday that Mark Jay Catalanello was arrested Thursday night following a hit-and-run incident east of Anaconda.
According to law enforcement officials, Catalanello was found trying to hide in a culvert after he jumped from his truck at at Hwy 48 near the Warm Springs turn-off.
According to Barkell, law enforcement dispatchers received multiple calls starting at 5:51 p.m. Thursday stating that a black Chevy truck was involved in a two-vehicle collision near the intersection of Montana Highway 1 East and Highway 43 Barkell said the driver of the black Chevy truck, which turned out to be Catalanello, attempted to leave the scene of the crash. Witnesses followed the damaged black pickup truck which was sparking as it fled. A tire was left at scene and the truck’s axle was bent, according to Barkell.
Barkell said Montana Highway Patrol Officers located the truck, which eventually stopped, at which point Catalanello “jumped out and was caught on foot.”
Barkell said Catalanello was arrested by Montana Highway Patrol officers and taken to a local hospital at 8:10 p.m. for a blood draw. Catalanello was booked in the Anaconda-Deerlodge jail on charges of failing to stop at a stop sign, driving of the influence – second offense, obstructing a peace officer, and failing to report an accident. Catalanello has since been released on $1,940 bond.
This story will be updated as more information becomes available. Montana Standard reporter Kathleen Bryan contributed to this update.
An adjudication panel of the Montana Board of Medical Examiners has revoked the medical license of a former state addiction treatment doctor who is facing drug charges.
Dr. Mark Jay Catalanello, who has a long history of drug abuse and felony drug arrests, came under fire last fall when staff at the Montana Chemical Dependency Center reported erratic behavior they suspected stemmed from Catalanello’s illegal drug use. The board temporarily suspended Catalanello’s license in October at an emergency meeting.
Catalanello worked for two state agencies at the time of his suspension, serving as a physician at the Montana State Hospital in Warm Springs and medical director at MCDC in Butte.
The state Department of Public Health and Human Services placed Catalanello on paid administrative leave following his Sept. 29 suspension and his last day working for the state was Oct. 19, 2015.
On Friday the board unanimously voted in favor of a motion to permanently bar Dr. Mark Catalanello from practicing medicine in Montana. The decision comes on the heels of Catalanello’s arrest in Butte on March March 4. On Tuesday he pleaded not guilty to misdemeanor charges of disorderly conduct and possession of dangerous drugs.
Catalanello was arrested on March 4 after he allegedly yelled and screamed at police and the owner and bartender at the IT Club in Rocker. Butte-Silver Bow Undersheriff George Skuletich told The Montana Standard on Monday Catalanello was belligerent, angry and made vulgar comments.
Police responded to the Living Water Coffee Co. in Rocker earlier that evening where an employee reported that Catalanello yelled and screamed at her as he waited in the drive-through. Police located his 2016 Dodge Ram pickup truck at the nearby IT Club where they found him inside.
A man named Ron Kelley spoke on Catalanello’s behalf at Friday’s adjudication hearing over the objection of the board’s attorney, Mike Fanning.
Kelley, who described himself as a friend of Catalanello, told the board via telephone that the doctor intended to be at Friday’s hearing in Helena. Kelley said he had agreed to drive Catalanello to the hearing, but that didn’t happen because Catalanello was involved in a “severe car accident” the night before.
“Last night, about 5 or 6 p.m. he was in a severe car accident and I could not bring him over there to stand before you today,” Kelley told the board. “My assumption is that he is in jail, and probably has a DUI, but I’m not sure of that.”
The Montana Free Press has thus far not been able to confirm whether Catalanello was involved in a vehicle crash or if he was arrested on any additional charges. A call to law enforcement officials in Anaconda-Deer Lodge County, where Catalanello lives, was not immediately returned. Skuletich said no such incident occurred in Butte-Silverbow’s jurisdiction.
Kelley asked the board to consider a continued suspension of Catalanello’s medical license, rather than a full revocation, to give Catalanello time to treat his addiction.
“He has an addiction problem, as you all know,” Kelley told the board. “He’s totally aware of his problem. He’s an addiction doctor. It’s severe and he knows it. I think the state of Montana needs every doctor we can get.”
Fanning objected to Kelley’s statement to the board, arguing that Kelley, who is not a lawyer, was inappropriately advocating on Catalanello’s behalf.
“I don’t necessarily mind [Kelley] coming forward and explaining Dr. Catalanello’s absence, but he can’t advocate,” Fanning said.
Fanning told the board that Catalanello requested a hearing to dispute the allegations against him but then failed to participate in the process “in any meaningful way.” Catalanello failed to show up at pre-trial hearing last month, which led to a cancellation of his trail set for Feb. 23.
The hearing examiner in the case recommended the board indefinitely suspend Catalanello’s license, but Fanning said his recommendation was for full revocation. Fanning told the board it could take whichever action it deemed appropriate.
There was no discussion among the members of the adjudication panel on the motion to revoke Catalanello’s license, and following a unanimous vote in favor, Catalanello is now barred from practicing medicine in Montana.
Fanning told the board that Catalanello is not barred from reapplying for a medical license in Montana in the future.
Attempts to locate Catalanello for comment have to-date been unsuccessful.
This story will be updated when and if details on the alleged vehicle crash involving Catalanello can be confirmed or refuted.
The Montana Standard contributed to this report.
Once again this year, Pug Mahon's and the Downtown Billings Alliance will be sponsoring the Little Leprechaun Contest, a program aiming to benefit classrooms in School District 2. Students in the 1st and 2nd grade can register for the contest and walk in the parade dressed as leprechauns. The groups will be judged on the "cutest" costumes and $200 cash prizes will be given to the top five classrooms represented. To register for this contest, visit www.downtownbillings.com for an application.
By Joseph T. O’Connor EBS Managing Editor and Amanda Eggert EBS Staff Writer
Last updated Mar. 4, 2016
On Thursday afternoon, treated wastewater began pouring down an embankment from a Yellowstone Club wastewater storage pond. A mechanical issue from a broken pipe is associated with the cause, according to Kristi Ponozzo, public policy director with the Montana Department of Environmental Quality.
Ron Edwards, general manager at the Big Sky Water and Sewer District says that short of diverting effluent into a lower wastewater treatment pond at the Yellowstone Club, not much else can be done.
“There’s no way to shut this flow off,” said Edwards, who expects the effluent to flow throughout the weekend. “They’re going to have to drain the whole thing down.”
At a community meeting held at the Big Sky Fire Department Friday evening at 5:30 p.m., Edwards, along with representatives from Yellowstone Club, the Montana Department of Environmental Quality, and Montana Fish, Wildlife and Parks, answered questions and outlined mitigation strategies the Yellowstone Club is exploring.
Approximately 60 people attended the meeting. Mike DuCuennois, Yellowstone Club Vice President of Development, said wastewater was still discharging out of a 24-inch pipe and engineers have not yet determined the cause of the pipe rupture, although one possibility is ice formation in the pond that could have damaged the pipe.
Edwards said the pond can hold upwards of 80 million gallons of treated wastewater, but that it contained 35 million at the time of the breech. “We’re lucky in the sense that it wasn’t completely full,” he said.
DuCuennois said approximately 21 million gallons have exited the pond so far and attempts are being made to divert about eight million gallons into a golf course pond to keep it out of the Gallatin. “We think in the next hour or so we’ll be able to divert that into the golf course pond,” he said. “I’m hopeful that we have crews fixing the problem [with the pipe] 24 hours from now.”
Workers are currently using chainsaws to cut though the ice layer in order to get a camera down to the drain at the bottom of the pond to assess the situation. DuCuennois said he considered sending in divers to get a better look at the problem, but said there were preventative safety concerns resulting due to the suction created by the outflow.
The YC is now relying on trucks, which will haul an estimated 20,000 gallons per day of treated wastewater to a temporary, approved dumpsite. The trucks will dump the wastewater into a manhole at Spanish Peaks, and it will flow to the BSWSD treatment plant. “We have plenty of room for now,” said Edwards.
One meeting attendee expressed frustration that the identified dumpsite is so close to his residence, and Edwards said he would to work with his neighborhood to use a dumpsite that would work for them.
A representative from the Gallatin County Health Department recommended that people with wells near the Gallatin test their water.
Kristin Gardner, Executive Director with the Gallatin River Task Force, pointed out that her organization would be handing out well water test kits at the Post Office Tuesday, March 8 from 11 a.m. to 2 p.m.
An attendee asked who would remedy tainted well water, and Sam Byrne with CrossHarbor Capital LLC said, “We’ll do whatever is required…to make it right or better than it was historically…We’re ready to address and help with any issues or problems downstream.”
Byrne, who is the co-founder of CrossHarbor Capital, the principle owner of the Yellowstone Club, flew down yesterday when he heard about the spill. CrossHarbor is based in Boston, Mass.
Montana DEQ is heading up assessment efforts.
According to Kristi Ponozzo, the largest concern is the amount of sediment stirred up from the effluent that has drained into the South Fork of the West Fork of the Gallatin River.
The DEQ will be testing the Gallatin River for pathogens, hydrogen, phosphorus, suspended sediment, ammonia, and nitrogen, Ponozzo said, and will be assisted by various state and county groups including Montana Fish, Wildlife and Parks; the Department of Health and Human Services; Gallatin County; the Yellowstone Club; and potentially the Gallatin River Task Force.
“The biggest issue we see right now is sediment. The release is picking up a significant sediment load and sediment impacts aquatic life,” Ponozzo said. “That’s the main point of concern.”
The sediment could have a profound impact on fisheries, but Dave Moser, a Fisheries Biologist with Montana Fish, Wildlife and Parks, said that impact won’t be known until the water clears up. He said brown trout are probably the most vulnerable population since they spawn in the fall. Their eggs could suffer from reduced available oxygen caused by suspended sediment in the waterway.
At 9:30 a.m. Friday morning, Kristin Gardner, Executive Director of the Gallatin River Task Force provided comment on the spill.
She is collecting data this morning and through the weekend with Yellowstone Club and Confluence Consulting, a natural resource consulting service based in Bozeman.
They’ll be measuring phosphorous, nitrogen, chloride and ph levels as well as gauging turbidity and monitoring for E. coli at several sites along the Gallatin watershed including the Second Yellow Mule Creek, the South Fork of the West Fork of the Gallatin, the West Fork of the Gallatin, and the Gallatin.
Gardner said she can’t comment on the impact until the data has come back, but noted there’s no danger to public health and it’s essentially the same quality of tertiary treated effluent that Bozeman discharges into the Gallatin on a regular basis.
Other conservation organizations are more concerned about the short- and long-term impacts of the spill. “[This] is just a tragic situation,” said Guy Alsentzer, the Executive Director and Founder of Upper Missouri Waterkeeper. “My organization and my members are pretty fired up about it.”
Thursday night, Upper Missouri Waterkeeper, a nonprofit focused on protecting and improving waterways throughout Montana’s Upper Missouri River Basin, collected samples and sent them to Bridger Analytics, a Four Corners lab. Alsentzer said the results should be in by Saturday morning and he is eager to learn whether or not the wastewater was fully treated.
“I think we’re going to find high nutrient – nitrogen and phosphorous – levels. I’m concerned that we’re going to find very low concentration of [dissolved or available] oxygen levels, which are critical to fish and bug health.”
A DEQ press release received by EBS Thursday evening stated that the water is treated “and the expected total nitrogen content of about 7-8 mg/L is below the human health standard of 10 mg/L as nitrate.” The release also noted that the effluent is authorized to irrigate the Yellowstone Club golf course during the summer months.
Gallatin County Emergency Management notified the Big Sky Fire Department of the situation at 3:30 p.m. Thursday afternoon. State agencies were looking for on-site photographs so they could better understand what was going on, according to BSFD Chief Bill Farhat, who added that DEQ is the agency in charge of the situation.
“As soon as I was assured there was no public health hazard, that was the end of my involvement,” Farhat said. “It was limited involvement on our part until state agencies arrive.”
Watch video from Ousel Falls:
At approximately 8:30 p.m. on March 3, the Yellowstone Club released the following statement:
On March 3, a Yellowstone Club employee identified damage to a treated reclaim water irrigation main. We moved swiftly to address the incident as soon as it was known, contacting Big Sky Sewer District and environmental authorities including the Montana Department of Environmental Quality. Local authorities confirmed that there is a flow of the reclaimed water into surrounding area streams and ultimately the Second Yellow Mule Creek and the Gallatin River.
The water that is influencing the Second Yellow Mule drainage from the broken pipe is picking up sediment due to overland flow and the steep land topography causing soil turbidity in the connecting waterways. The water is treated to a high level and not a risk to human contact. Furthermore there are no potable inlets for consumption along these waterways.
Yellowstone Club knows it is our responsibility to ensure as little harm as possible to the environment and we must do all we can to mitigate this issue. Crews from Bozeman are working through the night assembling parts and equipment to remedy the situation. It is estimated that the active spill will be contained within 24 hours. Yellowstone Club wants to assure the community we take this issue very seriously and we are taking steps to minimize this impact and prevent any further issues.