The man who owns a small gold mine excavation operation up Grizzly Gulch south of Helena has agreed to pay his neighbors $44,400, plus interest, for working too close to their property.
Pretty Girl mine owner Al Ballard and his neighbors, Russell and Melissa Levens, have been feuding for about a decade over his activities, with the argument ending up before the Montana Supreme Court in 2011. Part of the dispute involved whether Ballard was “excavating” in a 30-foot buffer zone next to his property, or whether the sloughing off of land in the buffer zone, which was falling into his open pit mine, was “excavation” instead.
A 2005 agreement, as well as a 2006 legal decision, had prohibited excavating in the buffer zone. In 2011, Lewis and Clark District Court Judge Kathy Seeley ordered Ballard to “immediately” restore the buffer zone by filling in the excavation with appropriate fill material and restoring a level ground surface in the zone.
That apparently didn’t happen, and as part of a judgment filed this month, Seeley said Ballard had to restore the 30-foot buffer zone by June 1. Once again, she said the restoration work should be compacted yet level with the ground surface and must be supported by a sloping surface, no steeper than 45 degrees, to prevent further sloughing.
Seeley also put in a deadline — again — for the work to get completed. This time she ordered that for every day beyond June 1 that the restoration is not completed, Ballard shall pay a penalty of $100 to the Levenses.
In the newest judgment, Seeley also elaborated on the dollar figures involved in the case. She said Ballard and his companies, Ecosafe Gold Recovery LLC and Placer Mine Development LLC, are responsible for the Levens’ costs and attorney’s fees, totaling $14,391, plus 10 percent interest that has accrued since Nov. 23, 2011.
She also ordered Ballard to pay the Levenses $10,035, with 10 percent interest, for the attorney’s fees arising from the Supreme Court appeal. In addition, Seeley hit Ballard with a $20,000 fine, with 10 percent interest, for failing to restore the 30-foot buffer zone as previously ordered, for a total of $44,426.
The Levenses agreed to waive the right to execute Seeley’s judgment for one year to give Ballard time to come up with the money. However, Seeley noted that any sale of a portion or all of Ballard’s property shall include the requirement to pay the judgment in full.
Both Ballard and Russell Levens declined to comment publicly on the judgment.
The dispute between Ballard and the Levens family over the Pretty Girl mine less than half a mile south of the Helena city limits goes back to 2003, when Lewis and Clark County allowed Ballard to relocate the county road that had formerly separated the mine and the Levens’ properties.
They entered into a written agreement in 2005 defining their boundary, according to a draft survey, which gave Ballard title to the 30-foot strip between the two properties. In return, he agreed that to protect the lateral support of the Levens’ property, he wouldn’t excavate with 30 feet of their land.
They also agreed to share the cost of a new survey, but disputes arose after Ballard occupied the area between the two properties and refused to sign the new certificate of survey, according to court documents.
The Levenses filed a lawsuit seeking an injunction, and former District Court Judge Thomas Honzel in 2006 permanently prohibited Ballard from excavating within 30 feet of the Levens’ property.
In June 2009, the Levenses filed a motion for contempt against Ballard for failing to abide by Honzel’s judgment, saying there was sloughing and cracking within the 30-foot zone. Since Honzel had retired, Seeley took the case and denied their request, finding that while there was “slumping of material” along the edge of Ballard’s pit, he hadn’t actually excavated within 30 feet of the property line. She ordered the Leveneses to pay Ballard’s attorney fees.
The Supreme Court reversed that decision in June 2011 and remanded it to Seeley for reconsideration, and she found that Ballard had, in fact, violated Honzel’s ruling.