Laws, Ordinances & Regulations

Dear Senator Tester

Dear Senator Tester:

I notice that the proposed director for ATF, David Chipman, has said he would like a ban on the AR-15 rifle, that it is not suited for use other than military.

Since you come from Big Sandy, I’d like to share a story about my daughter.  She was hit by a semi as she was stopped to make a left hand turn.  The concussion left her with prosopagnosia (face blindness and object recognition challenges),  and the impact pretty well trashed her right shoulder – she can’t even handle the recoil from an M1 carbine, but the lighter .223 bullet, with the direct gas impingement, is gentle enough that she can handle the recoil of an AR-15.

Here in Trego, we live in grizzly country.  She can hike the woods in my quarter section where I have the trails blazed to show which way leads to the house and which way leads away.  She has a small dog who does an amazing job at identifying people.  And the AR-15 rifle gives her a much more even chance if she encounters a grizzly (or two) than the other light recoil option of a 22 long rifle.  The injury has taken her ability to use a large caliber handgun – she is pretty well limited to a .32 ACP blowback to make recoil manageable.  The dog takes care of recognizing threats and she can still have a chance with an aggressive bear or cat if she has the light recoil of the AR-15 with the .223 (larger cartridges like the 30 blackout still are beyond her recoil tolerance, and she’s not fond of my .223 bolt gun.

So I’m hoping that, with Choteau close to your home, you can understand that she has a use for the AR-15.  Frankly, I wish she were still able to use a 45 – but I am happy for the recovery she made – she is a high school science teacher and she and her dog really enjoy having 160 acres of forest where she can hike without fear of getting lost.  But last year, we had two problem bears (with collars) that FWAP wound up euthanizing.  They were 5 yards from my front door.  A couple years ago, a griz trapped by FWAP on the place had his video go viral as he tried to use the rope on the gate to reel in the warden when he (the bear) was released.  We have had two adult grizzlies through this year, one a sow with cubs. 

I can understand how the President, coming from Delaware, doesn’t share my reality – but I figure that, while your place in Big Sandy may not see as many grizzlies as we do, you probably have neighbors that are more similar to us.  I have friends who are scarred from their grizzly encounters – for myself, I have had nothing worse than confrontations that ended with the bear leaving. 

I figure that with the Senate split as evenly as it is, I should ask you to vote with Montana instead of the President, and keep the AR-15 available.

Thanks,

Michael McCurry

Trego, MT

Laws, Ordinances & Regulations

Gun Control – The Miller Case

We have to look out for things that aren’t so.  Years ago, the dean I worked for explained that the Second Amendment allowed the National Guard to be armed and was a collective right rather than an individual right.   He confidently cited United States v Miller, and it sounded like he had a strong point.  Since he was also the chair of the local Democrats, I figured it was worth checking the actual case – there are people who sound good, but their facts aren’t always so.  If you want a good read that covers United States v Miller, it’s here.

The case was about a couple bank robbers taking a sawed-off shotgun across state lines, and it’s important to understand a few things about Jackson Miller.  He was a poor shot with a handgun.  He was a career criminal.  And, he was a snitch, an informant, a narc who had rolled over on virtually all of his buddies.  If anyone needed that sawed-off double to enhance his life expectancy, it was Jackson Miller. 

The abstract explains “Miller was a Second Amendment test case, teed up with a nominal defendant by a district judge sympathetic to New Deal gun control measures. But the Supreme Court issued a surprisingly narrow decision. Essentially, it held that the Second Amendment permits Congress to tax firearms used by criminals. While dicta suggest the Second Amendment guarantees an individual right to possess and use a weapon suitable for militia service, dicta are not precedent. In other words, Miller did not adopt a theory of the Second Amendment guarantee, because it did not need one.”

Brian L Frye University of Kentucky College of Law

Basically, the whole Supreme Court Ruling is based on the actions of Heartsill Ragon, a conniving gun control former congressman and judge.   This excerpt has been sliced for better readability, basically with the intent to get you to read the whole story.

“ JACKSON MILLER AND THE O’MALLEY GANG Jackson “Jack” Miller was a gambler, roadhouse owner, and small-time hood from Claremore, Oklahoma. Born in about 1900, he grew into a hulking, 240-pound thug. By 1921, he was in trouble with the law. His troubles worsened on August 14, 1924, when he accidentally killed H.A. Secrest, a young court reporter from Tulsa, while working as a bouncer at the Oak Cliff Resort near Claremore.  Secrest was plastered and roughing up his date, so Miller decked him, breaking his jaw.  Unfortunately, Secrest died of septicemia a couple of weeks later. Miller turned himself in on September 11, 1924, and immediately posted $5,000 bail. 

But Miller did not hit the major leagues until he joined the O’Malley Gang in 1934. The Depression was the golden age of Midwestern bank robbery, and the O’Malleys executed some of the era’s most daring and successful heists. From 1932 to 1935 they claimed “most of the major bank robberies in the Southwest,” hitting banks in Missouri, Arkansas, Kansas, and Illinois.  Originally known as the Ozark Mountain Boys, the gang consisted of a score of hoods, most of whom met in the Missouri State Penitentiary.

A reporter christened them the O’Malley Gang after the dashing Leo “Irish” O’Malley, notorious for his sensational but remarkably inept kidnapping of August Luer. In fact, O’Malley was only a bit player.  The gang’s real leaders were Dewey Gilmore, Daniel “Dapper Dan” Heady, and George Leonard “Shock” Short.

In the summer of 1934, Short moved to a rented farmhouse outside of Claremore. The rest of the gang soon followed. Heady recruited Miller as a “follow-up man” (lookout) and “wheelman” (getaway driver). Then the O’Malleys got to work.

On September 14, 1934, they hit the McElroy Bank and Trust in downtown Fayetteville, the oldest bank in Arkansas. While Miller and Art Austin circled the block, Gilmore, Heady, Virgil “Red” Melton, and Fred Reese broke into the bank before it opened, shanghaied the employees as they arrived, and made off with about $5,700.28

Then, on December 22, 1934, the O’Malleys robbed two Okemah, Oklahoma banks at the same time, one of the few successes.  They drove a Plymouth and a Ford into Okemah at dawn, wore bandages concealing their faces, and struck shortly before the banks opened. Gilmore, O’Malley, Short, and Russell Land Cooper hit the Okemah National Bank, while Heady, Melton, and Reese hit the First National Bank of Okemah.

Miller “was stationed at the Okemah city limits to guard against possible breakdowns and to pick up members of the gang if their autos failed.” Armed with pistols and machineguns, the O’Malleys bound and gagged the unsuspecting bank employees as they arrived, then forced a bank officer to open the safe. The Okemah National Bank yielded $13,186 and the First National Bank of Okemah yielded $5,491.25.33 The police pursued, to no avail.

Miller returned to Claremore with his $2,100 share of the Okemah job, half of which he kicked back to Gilmore on the sly. But he soon grew restless. On the night of January 11, 1935, he and some friends decided to rob Joe Lewis’s gas station and café in Salina, Oklahoma.

Nineteen-year-old Percy Bolinger was alone behind the counter when Miller, Earnest Tennyson, Ray Anderson, Norman Hoch, Howard Bridwell, Cap Ellis, Bill Meyers, and Blue Culver sauntered in at about 2 a.m. They ordered coffee and started playing the slot machines. When they got unruly and started tilting the machines, Bolinger asked them to leave. The hoods returned a few hours later, accompanied by Jeff Armstrong, who promptly pistol-whipped Bolinger. They stole $23.71 from the till and $120 from four slot machines, which they dumped in Lake Cherokee.

A week later, the police arrested the whole crew in Claremore. It was the beginning of the end for the O’Malleys.  Today, Okemah is best known as Woody Guthrie’s hometown. On May 3, 1935, the O’Malleys hit the City National Bank of Fort Smith, Arkansas, stealing about $22,000.37 It was their last big job.

The police arrested Cooper as a likely suspect and struck gold. Cooper ratted out Gilmore, who was already on the lam. The police caught up with Gilmore on May 22, outside of Lancaster, Texas. Gilmore sang too, fingering the rest of the gang. The police pinched O’Malley and Heady in Kansas City, where they’d rented a swanky pad from James Maroon. O’Malley immediately confessed to the Luer kidnapping and was extradited to Illinois. But the FBI took Heady to Muskogee, Oklahoma, to face federal charges on the Okemah job. A couple of weeks later, the police nabbed Short in Galena, Missouri. And on August 8, they caught up with Melton and Reese at a fishing camp in Taney County, Missouri. The FBI took all three to Muskogee for trial.

In the meantime, federal prosecutors indicted the O’Malleys in the Eastern District of Oklahoma. The Oklahoma trial came first. Federal prosecutors charged Gilmore, Cooper, O’Malley, and Short with robbing the Okemah National Bank and Heady, Melton, and Reese with robbing the National Bank of Okemah. All seven pleaded not guilty and the trial was set for October 16. But on October 2, the United States re-indicted the lot of them, added Jack Miller to both counts, and postponed the trial to November 25.

Miller soon flipped, confessing to his role in the Okemah job and turning state’s evidence. Miller was the government’s ace in the hole. To preserve the surprise, federal prosecutors sequestered him in the county jail until trial. As soon as the trial began, Miller’s lawyer H. Tom Kight announced, “Jack Miller, my client, will testify only on condition that he be granted complete immunity.” Judge Robert L. Williams agreed, on the condition Miller “gives a complete and truthful account of the crime.” |

He did, and then some. “Miller, placed on the witness stand, identified the defendants as coconspirators and testified Dan Heady, charged with participation in the robbery of the First National bank approached him ‘regarding robbery of some banks.’ He testified the plan of robbing the Okemah banks was agreed upon and he was employed as a ‘follow-up man.’ He said he received $2,100 as his share of the loot taken from the banks.” Miller’s erstwhile companions branded him a “squealer,” Cooper even requesting to leave the courtroom while Miller testified.

The trial was over almost as soon as it started. On November 27, the jury convicted the seven defendants on all counts. Williams acquitted Miller as promised, but added an admonishment. “You had a narrow escape this time . . . and you won’t be so lucky again. Get into something honest and quit this gambling business.” Miller immediately returned to Claremore.

Williams set a sentencing date of December 9, 1935. But on December 3, Heady’s wife “Pretty Betty” slipped him a pistol during a visit. Heady used the pistol to break out of prison, escaping with Gilmore, Short, and Cooper, among others. During the jailbreak, Heady shot Muskogee Chief of Detectives Ben Bolton, who died a couple of days later.

A huge posse of Oklahoma police and federal agents, aided by bloodhounds and observers in airplanes, tracked the fugitives to Pushmataha County into the Kiamachi Mountains near Clayton, Oklahoma. On December 5, the posse caught Cooper while he was walking down a country road twelve miles north of Clayton. And the next day, they found Heady and Gilmore in a farmhouse near Weathers, Oklahoma.

When Heady and Gilmore refused to surrender, the police opened fire, killing Heady. Gilmore quickly gave up and led the police to Short, about a mile and a half away. Short was already dying, having been critically burned in an accidental fire the night before, and he drowned when a boat used to evacuate him accidentally capsized.

On December 9, Williams sentenced Gilmore, Cooper, O’Malley, Melton, and Reese to 25 years. Miller was terrified of the fugitive O’Malleys, so the FBI held him in a county jail during the manhunt. They needed their snitch alive for the Arkansas trial.

On January 10, 1936, federal prosecutors charged Dewey Gilmore, Russell Cooper, Otto Jackson, and Floyd Y. Henderson with robbing the McElroy Bank and Trust Company of Fayetteville and the City National Bank of Fort Smith, Arkansas.

At first, all four pleaded not guilty, but Gilmore flipped when Miller implicated him in the Fayetteville job, and the others quickly folded. On January 14, Judge Hiram Heartsill Ragon sentenced Gilmore, Cooper, and Jackson to 25 years, and Smith to 56. Short was very popular in Galena – over 1,000 people attended his funeral – and his death was controversial. The police denied shooting him, but a Galena undertaker insisted he found several buckshot wounds in the corpse. And on February 14, Gilmore and Cooper got another 99 years for murdering Bolton. That was the end of the O’Malleys. Melton, Cooper, Gilmore, and Reese started in Leavenworth and ended up in Alcatraz. O’Malley did his time in Illinois, but soon went mad and died in 1944. And Miller returned to his penny-ante ways.

In 1937, the United States Fidelity and Guarantee Company sued him for the proceeds of the Okemah job, to little effect. Eventually, he fell in with Frank Layton, another small-time Claremore hood. On April 18, 1938, the Arkansas and Oklahoma state police stopped Miller and Layton outside of Siloam Springs, Arkansas, en route from Claremore.  They had an unregistered, short-barreled shotgun in the car and apparently were “making preparation for armed robbery.” So the police arrested them.”

The postscript supports my belief that Miller wasn’t all that good with a pistol:

POSTSCRIPT   In the meantime, Miller resurfaced. On April 3, 1939, Miller, Robert Drake “Major” Taylor, and an unidentified accomplice robbed the Route 66 Club, a Miami, Oklahoma dive. Armed with shotguns, they stole about $80, superficially wounding two bystanders in the process.

Apparently, it was an inside job. Earl “Woodenfoot” Clanton, the uncle of notorious bank robbers Herman and Ed “Newt” Clanton, owned the bar. Taylor was a former associate of Newt Clanton’s, and a peripheral member of the O’Malley Gang. At about 9 a.m. on April 3, two or three men in a car picked up Miller at his home in Ketchum, Oklahoma. T|

he next day, around noon, a farmhand named Fisher discovered Miller’s bulletridden corpse on the bank of the “nearly dry” Little Spencer Creek, nine miles southwest of Chelsea, Oklahoma. Miller was shot four times with a .38, twice in the chest, once under the left arm, and once through the left arm. The .45 automatic next to him had been fired three times.  On April 6, someone found Miller’s torched 1934 sedan off a dirt road in the Verdigris River bottoms, about four miles southeast of Nowata. It was stripped and still smoldering. A farmer said he saw it burning shortly before noon on April 3.

Taylor was a suspect in the investigation. On October 8, 1939, Sheriff Ellis Summers arrested him in Kermit, Texas, after he got in a “fight with an oil field worker over a dice game.” Ultimately, what happened on April 4 is unclear. Maybe Miller and Taylor disputed the proceeds of the robbery. Maybe Taylor shot Miller for snitching on the O’Malleys. In any case, Oklahoma charged Taylor with murder, but eventually dropped the charges for lack of evidence. Still, he pleaded guilty to armed robbery and got ten years in McAlester.

On January 8, 1940, Layton pleaded guilty to the reinstated NFA charge and Ragon sentenced him to five years probation. Ragon expected an appointment to the Eighth Circuit, but died suddenly of a heart attack on September 15, 1940. Layton’s probation ended on January 29, 1944.He died in 1967. Both Miller and Layton were buried at Woodlawn Cemetery in Claremore, Oklahoma.”

As I read the article, Judge Heartsill Ragon was a former congressman of the gun control persuasion.  Wikipedia, the bio of Heartsill Ragon sums it up elegantly:

In 1939, Ragon authored an opinion in United States v. Miller, 26 F. Supp. 1002, stating that a federal statute violated the Second Amendment. Ragon was in reality, in favor of the gun control law and was part of an elaborate plan to give the government a sure win when they appealed to the supreme court which they promptly did. Miller, who was a known bank robber, had just testified in court against his whole gang and would have to go into hiding as soon as he was released. Ragon knew that Miller would not pay for an attorney to argue the case at the supreme court and so the government would have a sure win because the other side would not show up. The plan worked perfectly. His opinion was reversed by the United States Supreme Court in United States v. Miller (1939).”

Wikipedia

Click the link, and download “The Peculiar Story of United States v Miller”. It really is worth reading, to help understand how the court ruling was achieved.  Miller, died a week and a half before the ruling.

Community, Laws, Ordinances & Regulations

Illegal Meetings- Open Meeting Laws

How to avoid having an illegal meeting?

Having read about the recent meeting during which two of the county commissioners and the mayor of Troy (among others) ran afoul of Montana’s Open Meeting Laws, it seems time to consider how not to have an illegal meeting.

Montana’s Open Meeting Laws require that “Meeting of Public Agencies” be open to the public. Public Agencies include boards, bureaus, commissions, agencies, etc.

First, what is a meeting? According to Montana’s Code Annotated, if it has a quorum, it’s a meeting. And it certainly doesn’t have to be in-person! (An email exchange is quite sufficient to be considered a meeting – especially now).

Now, quorum is an important word. On a five member school board, a quorum constitutes three members. Any two members can talk on the phone without having an illegal meeting. Of course, if the number of board members drops, the situation becomes more complicated.

In general, the smaller the board, the more important it is to be certain meetings are announced well in advance, so that state laws are followed. With small, three person boards, an illegal meeting could be just a careless phone call away.

Decisions made at meetings that violate Montana’s Open Meeting laws may be declared void (there is a time limit on that, though).

When does the public need to know? The requirements that the public be given notice in advance of the meeting are actually part of Montana’s public participation laws, and only apply when the meeting will include something of “significant public interest“.

How long in advance should the public know? Depends- the rule is that the more significant, the more notice should be given. (Forty-Eight Hours is the suggested minimum for County Commissioner’s meetings, according to the Attorney General).

Laws, Ordinances & Regulations

Possibly the Nastiest Death Sentence Ever

When I began teaching at Trinidad State, the cop instructor’s classroom was kitty-corner across from my office in the science building.  Each Spring, he would greet his class with a recitation of this sentence from Judge Kirby Benedict, in Taos, New Mexico.

Jose Manuel Miguel Xavier Gonzales, in a few short weeks it will be spring. The snows of winter will flee away, the ice will vanish, and the air will become soft and balmy. In short, Jose Manuel Miguel Xavier Gonzales, the annual miracle of the years will awaken and come to pass, but you won’t be there.

The rivulet will run its soaring course to the sea, the timid desert flowers will put forth their tender shoots, the glorious valleys of this imperial domain will blossom as the rose. Still, you won’t be here to see.

From every treetop some wild woods songster will carol his mating song; butterflies will sport in the sunshine, the busy bee will hum happy as it pursues its accustomed vacation; the gentle breeze will tease the tassels of the wild grasses, and all nature will be glad, but you. You won’t be here to enjoy it because I command the sheriff or some other officers of the country to lead you out to some remote spot, swing you by the neck from a knotting bough of some sturdy oak, and let you hang until you are dead.

And then, Jose Manuel Miguel Xavier Gonzales, I further command that such officer or officers retire quickly from your dangling corpse, so that vultures may descend from the heavens upon your filthy body until nothing shall remain but bare, bleached bones of a cold-blooded, bloodthirsty, throat-cutting, murdering son of a bitch.”

This version seems a little sanitized with politically incorrect comments removed – but it didn’t take a lot of time to find it.  It is Spring, and Terry Walker, the criminal justice instructor back in the mid-eighties and I are still here to enjoy it.

Community, County Ordinances, Laws, Ordinances & Regulations

Litter vs Artifacts?

If you leave trash sitting around long enough (about 50 years), something mysterious happens and it stops being litter (punishable by a $200 fine) and becomes an archaeological resource which if you remove from federal land could lead to a $500 fine and six moths in jail.

What’s the difference?

Litter is, according to the Lincoln County Ordinance:

“Litter” means any quantity of uncontained or openly stored materials which may be classified as trash, debris, rubbish, refuse, garbage or junk, including but not limited to:
a) any worn out or discarded material that is ready for destruction or has been collected or stored for recycling or salvage;
b) old or scrap metals, wire, rope, batteries, paper, tires, cardboard, plastic, cans, wood, concrete, glass, crockery, or rubber;
c) dead domestic animals;
d) animal and vegetable wastes from the handling, preparation, cooking, and the consumption of food that is not incorporated into a properly maintained compost system;
e) discarded, broken, or unusable furniture, fencing, or building materials,
f) discarded, broken, or non-functioning appliances, campers, mobile homes, junk vehicles, machinery, fixtures, or any component parts thereof, that are serving no apparent purpose, or will not be made to function within a reasonable time;”

Ordinance 2018-02 – Litter Control

It’s probably worth noting that Lincoln County’s litter ordinance doesn’t just apply to roadsides: “It is unlawful for an owner, lessee, or occupant of private property to allow litter to accumulate on his or her property.” As with the community decay ordinance, there appears to be some potential for overlap between “yard art” and “illegal”.

Archaeological resources are broadly defined by federal law, and include trash over 50 years in age (though only if it is of archaeological interest– that is, “capable of providing scientific or humanistic understanding of past human behavior, cultural adaptation, and related topics…”) Archaeological resources are covered by 36 CFR 261.9 (theft of government property, penalty of up to 500$ and/or up to 6 months imprisonment), which means that they are illegal to remove from federal lands.

So, 50+ year old trash? If it’s on federal ground, leaving it is the safer bet. On private property, while explaining it was an artifact rather than litter might make for an interesting argument, that $200 (each day) fine might also prove persuasive.

Litter, to be removed? Or an artifact to remain? Sometimes labels provided clues, allowing the item to be dated, and making the determination easier.

Laws, Ordinances & Regulations

The Force of Law

It’s amazing just how many regulations/rules/statutes/ordinances/laws are out there.

What we learned in grade school civics is simple and elegant, and unfortunately far from the complete picture. In elementary school we are taught the three branches of government: executive, legislative, and judicial. This is accompanied by the simple explanation that the legislative branch (the legislature) makes the laws and the executive branch (the president) enforces them. The same model is used by the state. Simple. Easy to understand. Incomplete.

While in the strictest sense the legislature can and does pass laws and the executive branch of government does enforce them, the actual situation is far more complex. Often, what the executive branch does is create a regulatory agency to enforce the law. For example, back in the 1970’s, President Nixon established the Environmental Protection Agency and charged it with enforcing the Clean Air Act. Of course, the EPA quickly grew to handle far more than just the Clean Air Act. Like other federal departments and agencies, the EPA creates rules and regulations which have the force of law. They aren’t laws in the same sense that the laws created by the legislature are, per say, but for the guy trying to follow them, there just isn’t much difference.

How many federal regulations are there?

Statistics about federal regulations can be found here, provided by George Washington University. The entire collection of regulations is available online via the electronic code of federal regulations.

Given that George Washington University’s very nice bar graph has units in “thousands of pages”, it’s rather easy to conclude that there are lots of federal regulations. Of course, it’s likely that most of them won’t apply to any given individual, but how is one to know which ones do? Alas, without reading all of them, there doesn’t seem to be a good way to know.

And, of course, this is just federal. Each state and state agency has its own collection of regulations, plus county and local governments can pass laws (and regulations with the force of law).

The County’s list of ordinances is at least, mercifully short (Silver Butte Road, Community Decay, Park Rules of Conduct, Dog Control, Litter Control, Recodifying Ordinance). That said, the county’s regulations aren’t nearly as easy to find, being spread out across various departments.

Community, County Ordinances

Board of Health to Meet Wednesday (1/13)

The Lincoln County Board of Health is meeting Wednesday? To discuss what? A number of things, among them changing the procedures for public comment. Of course, it’s not entirely clear from the Agenda what precisely the board is expecting to talk about, but there are number of action items included.

The Lincoln County Board of Health will meet this Wednesday, at 6PM. The Agenda can be found here. It will be possible to attend via zoom. At the end of the last meeting (informational), Board Member Jim Seifert described a proposal for grading businesses. The meeting closed with Board Chair Jan Ivers remarking that the proposal would probably be discussed at the next meeting.

Looking at the agenda:

New Business (all action items): Nominate Officers, Set meeting schedule, Board Recommendation. No details beyond that, so it’s entirely unclear what exactly the board expects to be making a recommendation on.

Approval of Minutes

Program Reports: Community, Public Health, Environmental Health, Solid Waste and Recycling, Asbestos Resource Program.

Community:
The first report is “Mental Health Coalition”. It’s not clear what this is, but the only thing on the county website that matches that search is Best Beginnings. The second is “Team 56”. Team 56 is those folks who’ve been holding the facial recognition contests (Which, yes, being faceblind, I found to be in rather poor taste). They can be found on facebook, where they’re not exactly widely popular (211 Followers, when the county population is over 19,000). The next report is “COVID Response Coordination & Communication Strategy, followed by Medical Provider Summary

Public Health:
The first report for public health is “COVID-19”, which is followed by an action item: “CHEMPACK plan”. No further details are included.

Focus Area Liaisons: Asbestos (two action items) and Groundwater. The Action items include a property evaluation notification regulation, and the appointment of liaisons for superfund area.

City Representative Reports: While there aren’t any details given, the city representatives on the Board of Health include: Laura Crismore (representing Libby), Jim Seifert (representing Troy), and Debra Armstrong (representing Eureka)

Health Officer Report: Again, no details, but the Health Officer is Dr. Brad Black. (Interestingly, this isn’t information available on the county website.)

Old Business: Proposed Update to Operating Procedure #2. Operating Procedure #2, found here, is for how the board will handle public comments. It makes for an interesting read. Did you know that under the current Operating Procedure, all public comments or correspondence with the board will be available for review by any member of the public.

Public Comment: Under the current operating procedures, people commenting are required to address the board as a whole, and are allowed 3 minutes (more at the discretion of the Board Chair). Comments can be cut off if they are “not relevant, personal attacks, or not presented in a respectful manner”

Well, should be interesting. It’s not entirely clear if Jim Seifert’s proposal will be discussed, indeed, there’s a fair bit that isn’t entirely clear. Regardless, Wednesday, at 6 PM.

Community, Laws, Ordinances & Regulations

Fair Representation on the County Board of Health?

Last week, we asked if the County Board of Health was a fair representation of the county. We’ve looked at how people are distributed in the county before, in “Searching Lincoln County Data” and “If LCHS District were a County” and have mostly compared high school districts (which is a handy way of splitting the county into three).

Splitting the Board of Health into representation by high school district:

High School District% of County Population% of Vote on Health Board
Libby50 %57.1 %
Eureka (LCHS)32 %28.6 %
Troy18 %14.3 %

Considering things in terms of the high school districts makes for a much fairer picture than looking at them in terms of Libby, Eureka and Troy- but three members of the board do represent Libby, Eureka and Troy, specifically. There are only three members (plus one county commissioner) available to represent the rest of the county.

Comparing the representation of Eureka, Libby and Troy to that of the rest of the county leaves a rather different picture:

Area% of PopulationBoard Representation
Eureka + Libby + Troy23.1 %Minimum of 3/7, or 42.9 %
The Rest of the County76.9 %Maximum of 4/7, or 57.1 %

Note that those are minimum and maximum values. The board is structured so that Eureka, Libby and Troy each get to appoint a representative, with the remaining 4 appointed by the County Commissioners. It is impossible, under the current structure, for Eureka, Libby and Troy to have less than 42.9% combined representation on the board.

Of course, as was evident in last week’s article, this is a fairly good deal for Troy and Eureka; Troy, with only 4.7% of the county population is guaranteed 14.3% of the vote on the board. Eureka, with 5.2% of the county population gets the same. Libby, at 13.2% is only slightly under represented. (Of course, these are minimums. Nothing says the county commissioners can’t appoint four Libby residents to the board…)

The Lincoln County Board of Health next meets on the 13th of January. The agenda, when available, should be posted on the county website along with the zoom link.

Community, Laws, Ordinances & Regulations

Lincoln County Board of Health Informative Meeting- Part 2

The County Board of Health met Wednesday, December 16th for an informative meeting. It wasn’t just an informative meeting though- it contained a proposal (one which the board anticipates discussing at the next meeting). The proposal (by Jim Seifert of Troy), while at the end of the meeting, was sufficiently surprising that we included it in part 1 last week.

The meeting began with Jan Ivers (board chair) discussing viruses and predicting another pandemic. Then, County Commissioner Mark Peck presented on the legal foundations of the Board of Health and gave a brief “how it all works” explanation. After, Kathi Hooper (Director of the County Health Department) explained the board’s budget.

Presentation about Testing: Lyn Thompson, a laboratory scientist, spoke via zoom about testing for the virus. She spoke with great enthusiasm about her topic, three tests: Molecular Diagnostic, Antigen test and Antibody test. According to Thompson, the four important characteristics of a lab test are: accuracy, timeliness, sensitivity, specificity.

A couple big things about the molecular part of it [testing], what it does not do: It does not tell you if the patient is infectious. It does not tell you if the patient is contagious. “

Lyn Thompson

Thompson clarified that the test itself simply detects or does not detect the virus. Antigen testing looks for a protein, rather than DNA, and is less specific and less sensitive but a quicker test. Antibody tests, meanwhile, are more useful for determining if someone has had a virus than if they are currently infectious.

A lot of these tests are only supposed to be done on symptomatic patients. Specifically the antigen test is really dependent on the person has to be symptomatic with covid-like symptoms in the first five days.”

Lyn Thompson

Thompson continued to explain that delaying an antigen test could result in a negative result, even in someone who had Covid-19, if they delayed long enough. Furthermore, an asymptomatic patient with Covid-19 could still have a negative result with an antigen test.

Presentation on Collaborative Medical Care: Sara (presumably Dr. Sara Mertes of Cabinet Peaks Medical Center, new member of the health board) spoke about the procedures used to both care for patients and avoid potential exposures. When a patient tests positive, the information is given to the Health Department, which does follow-up and contact tracing with the patient.

Cabinet Peaks Medical Center is able to send patients home with a monitor, which checks for drops in oxygen levels or tachycardia (rapid heart rate). Unfortunately, these monitors require WiFi or cell service, so are of limited utility.

Presentation on Contact Tracing: Jenn McCully, Lincoln County Public Health Manager, discussed what happens when the Health Department is notified of a covid case. Contact tracing assumes that someone is contagious either two days before symptoms, or two days before the positive test (whichever is sooner). Isolation is supposed to be at least 10 days, and to include being isolated from other household members. It will also include occasional calls and check-ins from the department.

Presentation on Vaccinations: Dr. Kelli Jarrett, of the Northwest Community Health Center, gave an overview about how vaccines work. Then, she went into more detail about the Covid-19 vaccine. The vaccine is an mRNA vaccine, which makes it somewhat different from the vaccines we are used to.

The reason that mRNA technology is actually really nice, especially in this circumstance is that it can be scaled up much faster than our current vaccine technology.”

Dr. Kelli Jarrett

Dr. Jarrett provided a detailed overview of the safety data for the Pfizer vaccine, and observed that the number of adverse reactions seen in the trials is comparable to commonly used vaccines (adverse reaction can include pain, fever or muscle aches; it needn’t be severe). The efficacy rate of the vaccine seems to be quite high.

The presentations wrapped up with contact information: Anyone with questions for specific presenters should contact Kathi Hooper, the director of the County Health Department.

Finally, the meeting closed with a comment from Jim, the Board of Health member representing Troy. Seifert proposed giving businesses an A/B/C/D rating, primarily based on mask wearing (both of employees and customers). His proposal seems to entail members of the county health department inspecting and rating businesses.

The Board of Health next meets on January 13th. According to Board Chair Jan Ivers, Seifert’s proposal will probably be on the agenda.

Community, Laws, Ordinances & Regulations

Lincoln County Board of Health Informative Meeting was Held Wednesday 12/16

Did a member of the Board of Health actually propose a “grading system” for local businesses, based on compliance? Where does the County Board of Health come from? What powers does it have?

First, some background: The Lincoln County Board of Health has seven members. It is chaired by Jan Ivers of Libby. Of the seven members, three are “Lincoln County Representatives”, another three represent Libby, Eureka and Troy, and the final member is a County Commissioner (at this time, Josh Letcher).

Wednesday’s meeting was for the purpose of informing the public, rather than deciding/voting on policy. It began at 6 pm, and could be attended via zoom. A full recording of the meeting is available here– it’s about an hour and 15 minutes. I’ll give the short version here, and do my best for accurate quotes (with the right names associated, but as I’m faceblind, mistakes do sometimes slip through).

The meeting was shared by DC Orr of Libby, whom I presume can be credited with the recording.

The meeting had 7 presenters, and began with an explanation by Board Chair Jan Ivers, about viruses and pandemics. Talking about pandemics, Ivers predicted another pandemic and listed some reasons.

There will probably, as soon as we get this one under management, there will probably be another pandemic in the future. And there are a couple reasons for this: Population growth. We have a lot more people, a lot more crowding. We’ve gone from agriculture/rural into higher density populations. There’s some deforestation due to needing more agricultural land. Modern travel. I mean we can go almost anywhere to home in 24 hours which means that organisms don’t have that far, or that long to go. Increased Trade due to imported foods, exotic pets. And Change in the weather patterns that makes a difference in when these viruses go into humans. Here we don’t have this problem as much, but lack of access to public health is a big issue as far as [coughing] virus”

Jan Ivers

The first presentation was by County Commissioner (District 1) Mark Peck on the topic of Organizational Structure. Peck remarked that “There’s a lot of confusion over who has what authorities”. Peck explained:

“Essentially, Montana Code Annotated 50-2-106 covers how health boards are formed. There’s a few different kinds of health boards… We chose a number of years ago to go with the city county health board model because it allows the three cities as well as the county to have joint representation and have representation for themselves on the board.

So essentially what that means is that at minimum you have to have a county commissioner. The city of Libby has one position that they can pick at large. The city of Troy has one they can pick at large. And The city of Eureka has one they can pick at large. And then we decided within the bylaws of the board, and this was a concurrence from the commissioners and the three city councils and mayors that the commissioners would have an additional three positions. So you’ve got four positions that are selected from the county commissioners and then one from each of the cities and that’s where the seven positions come from.”

Mark Peck

With three Board Members coming out of the cities, it makes sense to consider what percentage of the county population the cities are.

CityPopulationPercentage of County
Eureka10375.2%
Libby262813.2%
Troy9384.7%
All three460323.0%
The numbers are from the 2010 Census (the 2020 data isn’t out yet) the County population was 19,980

Basically, the three incorporated communities, with 23% of the county’s population are guaranteed 43% of the board membership.

Peck continued, discussing the County Health Board and the appointed Health Officer:

Know a lot of people think well the county commissioners, we can just do away with this board. Well, actually we can’t. We have to have concurrence of the three cities to do that. Very similar to, well, the cities can’t blow it up on their own either and that’s a check and balance to make sure we’ve got consistency.

So anyway the authority of the cities and commissioners in Title 50 is strictly to appoint the Health Board. The Health Board has its own set of authorities and regulations that the cities and county don’t have, because per law that’s been delegated down to the Health Board. And those responsibilities you’ll find them in Montana Code Annotated 50-2-116 and one of the first authorities and requirements of the health board is to appoint a health officer.

The health board has appointed Dr. Black as the county health officer. The county health officer, those authorities fall under 50-2-118 so it’s a different, although they’re very similar authorities, the health officer has unique authorities that the health board does not…

Mark Peck

Peck went on to answer several questions he had been asked by his constituents. Can the health board be reorganized or disbanded?

…Yes, in theory the health board can be reorganized but it’s not a matter of just the county commissioners doing it. We would have to have all three cities as well as the county commissioners agree to disband the board….

Mark Peck

Why isn’t the sheriff enforcing the mandates?

We still are in a state and a country of laws, and the sheriff can only enforce laws that he’s been given authority through Montana Code Annotated… the Sheriff does not have authority under title 50 to go arrest somebody or to enforce the Governor’s mandate. They can assist if there’s some type of an issue. But that’s why you’re seeing law enforcement agencies not running around enforcing this…”

Mark Peck

Is the health officer completely autonomous?

No, he isn’t. The health board could replace the health officer…”

Mark Peck

After Mark Peck finished, Kathi Hooper, Directer of the County Health Department began the second presentation of the evening. The topic was finances.

The finances of the Board of Health are really pretty simple. They have a small budget that’s approved annually by the commissioners. In the previous fiscal year which is July of 2019 through June of 2020 the Board of Health expenditures $15,790. And of that total 95% was professional services, including approximately $9,400 for legal services and $6,300 for local health officer. So far this fiscal year which started July 1st the Board of Health expenditures totaled $3,198.”

Kathi Hooper

If a business spent 57% of it’s budget on legal services, well, that might suggest some problems.

Skipping ahead a bit in my summary, towards the end of the meeting Health Board Member Jim Seifert (Representative of the City of Troy) spoke for the five or so minutes of the video below. Seifert outlined a proposal that did indeed involve giving businesses grades.

I want to bring up a proposal. What I want to do is I want to do exactly what the health department already does. The health department right now regulates restaurants and food establishments. I want to regulate public spaces for the same thing for our response to covid. And what that is, is we have three things that we can do that are positive. We can do masking, social distancing and hand washing. Well, it’s hard to monitoring hand washing because you can’t be there all the time, but the masks and the social distancings[sic] we can. And what I want to do is go to public places, excluding churches and excluding schools because they’re mandating their own, and set up a A/B/C/D rating for these establishments.”

Jim Seifert

Seifert stated that he would give an A+ rating to a business that makes everyone that comes in put on a mask, a business where all the employees wear masks (but they don’t greet people at the door and inform them to put on a mask) a B, with the grade lowering for incorrectly mask wearing. C rating would be for businesses in which only some employees where masks, and D rating for those businesses that do not where them.

Jim Seifert of Troy proposes a rating system for businesses

Who would enforce Seifert’s proposal? He was quick to say not the government, and not the police. Rather, Seifert states that he expects the citizens of Lincoln County to do the enforcement. He imagines businesses being rated on social media, and in the newspaper, signs placed on their doors, and these signs helping citizens to decide where to shop.

Now, Seifert is the board member that represents the city of Troy. The 2010 population of Troy was 938, or 4.7% of the county’s population. He certainly has ideas for the whole county though!

Seifert went on to talk about vaccines, stating that the idea that vaccines would be mandated (people would be forced to get them), is a propaganda conspiracy-theory.

“We don’t do that in the United States that I know of. And what I call that, is I call that gas-lighting.”

Jim Seifert

The meeting closed with the reminder that the next Board of Health meeting is the 13th of January (the second Wednesday of the month), and the thought that Seifert’s proposal will probably be on the agenda. Written Comments or questions to the board should be addressed to Kathi Hooper. While written comments are accepted at any time, they must be received a week in advance of the meeting to be addressed at that meeting. For a comment to be addressed at the next meeting, it should be sent in no later than January 6th.

Meeting Summary to continue in next week’s Mountain Ear. If you can’t wait- feel free to watch the whole thing (and write the rest of the summary- get in touch, we’ll post it!)