Expansion of the Floodplain in Missoula County:

Missoula County relies on data from Department of Natural Resources & Conservation (DNRC), and Title 76 of the MCA to adopt the raising of the Base Flood Elevations (BFE) in Missoula County. Other counties in Montana have not adopted DNRC’s BFEs, nor is Missoula County required to adopt DNRC’s BFEs. The raising of the BFE will substantially increase the number of properties in the floodplain. This will force more property owners to buy flood insurance, in addition to their home-owners insurance.

 DNRC determines the BFE by calculating a 1% chance that the flood waters might reach a particular elevation during a flood event in any given year over the next 100-years. They compare that elevation with the ground elevation of your property. If your property elevation is at, or lower than the BFE, you are determined to be in the floodplain. DNRC’s definition of a BFE is: “The elevation of surface water resulting from a flood that has a 1% chance of equaling or exceeding that level in any given year. The BFE is shown on the Flood Insurance Rate Map (FIRM) for zones AE, AH, A1–A30, AR, AR/A, AR/AE, AR/A1– A30, AR/AH, AR/AO, V1–V30 and VE.”

It is important to know that while “The BFE is shown on the Flood Insurance Rate Map (FIRM)…” the FIRM is not used to determine whether or not you are in the floodplain for the purpose of Missoula County’s new zoning regulations. FIRM is used by the Federal Emergency Management Agency (FEMA) to force property owners by Federal law into buying flood insurance. Even if FEMA’s FIRM shows that your property is not on the floodplain, Missoula County disregards the FIRM and uses DNRC’s BFE to determine that your property is on the floodplain. So, while one property owner has not been paying for flood insurance for years because the FIRM shows them out of the floodplain, their neighbor, at the same BFE, may have been simultaneously forced to pay for flood insurance. This is state and county policy and is certainly not compliant with our Constitutional right to equal protection under the law.  

Questions about BFE:

1.     Are they accurate and why have they raised in the Clark Fork River upstream from the Blackfoot River confluence post the Milltown Dam removal, a deeper river bed, and historically lower run-off over the past 100 years?

2.     How is a 1% chance of flood water elevations determined?

3.     Is 1% the probability with some certainty that there is a 1 in 100 chance that water levels will reach the same or higher levels upstream from the Blackfoot River confluence than any given year in the past 100 years?  

 The answer to these questions may be:

The 100-year flood event doesn’t mean that every 100 years the water will reach the same level as it did 100 years ago. It does mean that out of every 100 times the river rises, it reaches a certain elevation one time out of 100, creating a 1% probability that it will raise to that level once again during the next 100 times that it occurs. To calculate that it is actually 1%, you first have to know that the event has happened once out of 100 times. If a wheel is spun 100 times, and once out of those 100 times it was spun it wobbled, there is a 1% chance that during the next 100 spins it will wobble again. DNRC, nor Missoula County, have evidence that the Clark Fork River upstream of the Turah bridge, for example, has ever reached the BFE that they show it to be on their floodplain projections. Thus, it cannot be said that there is a 1% chance of the river reaching a level that has never occurred before. There is no evidence that the wheel ever wobbled once during 100 spins.

“Determining Flooding Probabilities (More about the 100-year flood!) If a stream overflows its banks with a flood that has a Recurrence Interval of 100 years, there is one chance in 100 that a flood of that magnitude will occur each year. That's the 100-year flood. In other words, there is a 1/100 (= 0.01 or 1.0 %) probability of flooding of that magnitude or greater in any one year. (Geological Labs / Virtual River)”

Missoula County and DNRC are simply speculating or predicting an event that has no recurrence record. They are “taking” property and interfering with the lives and rights of citizens solely on speculation. 

 Takings

Taking of property doesn’t necessarily mean that a county physically takes your property, or removes you from your property. What it does means, pursuant to U.S. Supreme Court rulings:

“The cases say, repeatedly and unmistakably, that" '[t]he test to be applied in considering [a] facial [takings] challenge is fairly straightforward. A statute regulating the uses that can be made of property effects a taking if it "denies an owner economically viable use of his land."'" Keystone, 480 U. S., at 495 (quoting Hodel, 452 U. S., at 295-296 (quoting Agins, 447 U. S., at 260)) (emphasis added).”

"while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

“As we have said on numerous occasions, the Fifth Amendment is violated when land-use regulation "does not substantially advance legitimate state interests or denies an owner economically viable use of his land." Agins, supra, at 260 (citations omitted) (emphasis added)” Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

What remedies are available to Citizens for violations of our civil rights by government employees or agents? One might be provided in the Federal Law as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” U.S. 42, Section 1983

 When is an actor acting outside the law or judicial authority?

Government agents, including judicial officers, are not immune from liability when they are acting outside of the law. So, when is a law not a law?

“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it has never been passed.” Norton v. Shelby County, 118, U.S. 425 (1886)

A question might be: Are government agents recklessly and/or knowingly relying on rules that are unconstitutional that heavy handedly abuse the civil rights of others?