Lighting and Legal Issues Plague Whistler Observatory
The County won't sacrifice public safety or assets to accommodate dark skies enthusiasts and the City continues to clean up legal issues with ownership and occupancy left by previous administration
By Denise Rivette
At the April 2 City of Red Lodge Parks Board meeting, after exhausting their efforts with and exasperating the Carbon County Commissioners by repeatedly offering the same three solutions (turn the lights off, put them on motion sensors or attach deflectors), the Whistler Observatory group floated their latest solution to mitigate light pollution in Van Dyke Park. The resulting plan is a ten-foot strip (half the length of the previous proposal) of junipers paid for with grants and planted and maintained by the City. It is designed to block light from the County property across the street but not headlights on the road. Headlights traveling the road were identified in previous meetings as “ruin(ing) the experience” for observatory users who require 15 to 30 minutes to reacquire their night vision after exposure to light. Theresa Whistler did not respond to an email from MIN asking if they had considered getting step and repeat banners designed for outdoor use. Step and repeat banners are free-standing displays of fabric over a support structure like those at red carpet events. Two 10’x20’ step and repeats with scaffolding structure for outdoor use are comparable in cost to the trees being contemplated and would provide for more and adjustable light screening while providing a destination venue feel without permanently altering the landscape.
In addition to light pollution, other observatory issues remaining unresolved are ownership of the facility and legalities of occupancy. The observatory issues, reams of incomplete flood permits, and the ongoing process of cancelling (or cancelling the cancellation of) the Red Lodge Airport interlocal agreement are remnants from Mayor Kristen Cogswell’s administration.
The observatory was sited and construction began before consulting with Carbon County. When asked why the observatory was being built in the brightest spot in the county instead a couple miles away from Red Lodge where the skies are darker, Whistler stated that if it is built outside city limits her organization would have to pay for a separate insurance policy. Before the slab was even poured, questions were being raised as to how the City could allow a private entity to build on City property without allowing other groups to bid a project for the site and why taxpayers should allow a building not freely accessible to the public to be built on public land by a private group at no cost.
Last summer, lights at the County Fairgrounds were shot out. Because of that incident and increased criminal and bear activity in the area, the County decided safety was more important than electric bill savings. After consultation with law enforcement, they decided the best course of action is to keep the fairground lights on at night. This has increased light levels across the road at the observatory.
Although the observatory Memorandum of Understanding (MOU) states as part of its premise that it is understood that Hero’s STEAM owns the observatory, it has come to light that is not possible under City policy. Any facilities built on City land, regardless of who paid for them (e.g., Lions Park gazebo, skate park, Pride Park planters), belong to the City and are the City’s responsibility to maintain. The observatory is currently operating under a temporary occupancy permit until the ownership issue is straightened out. The Land Use and Planning Standing Commmittee is now going over MOUs and leases to make sure the proper documentation is being used and policies for both will be applied properly and fairly in the future.
There is also the issue of whether Whistler’s organization, Hero’s STEAM, should have been allowed to build at all on land dedicated as “an open-space park with trails”.
Because of the way the observatory project was maneuvered through the City and built outside the scope approved by City Council, purportedly using existing policies properly, the Council is currently taking steps to ensure this type of situation never occurs again. Even as those steps are taken, and over three years into the observatory project, Mayor Dave Westwood continues unravelling the legal situation surrounding it.
“Parking’s on the street where people have been parking there when they show up to stargazing. It's not been an issue. People don't tend to stay long. They come, they look, they leave. So when we have a stargazing event, it's not like you're going to have people there for two hours solid. They'll come and they'll go.” ~ Theresa Whistler, September 22, 2023
While the legalities of the observatory are straightened out in City Hall, Whistler is laser focused on blocking the County’s lights which are on throughout the night providing a consistent, if diminished, viewing experience. On the other hand, they seem to be ignoring the issue of headlights that users have complained interfere with viewing for 15 to 30 minutes each time a vehicle drives past, a situation that will only get worse as the popularity of the Observatory grows.
After the April meeting, County Commmissioner Bill Bullock was asked why the County was disinclined to engage further with the observatory group regarding the County’s lighting, Bullock explained, “I’ve engaged in conversations and meetings on the subject. They’re only concerned with their own narrow interests and show a lack of understanding of and respect for County property. They keep throwing out the same cheap solutions that only solve their problem. Motion detectors get covered in snow and can stop working when they are needed most. Light deflector installations have to be engineered so the deflectors can’t be sent flying by wind and injure someone while also not damaging the building shell. The County will not be providing on-call personnel to flip light switches at their whim and we’re not giving criminals a scheduled window of darkness. What will they expect us to do if there’s an event at the fairgrounds at the same time they want the lights off? Why don’t they observe the sky from inside the observatory?
I understand they think this is an urgent issue and worth all the public officials’ time being spent on it, but the County is dealing with bigger issues on a daily basis with immediate and long-term consequences. If they come up with a solution that addresses our safety and property management concerns, and doesn’t require County taxpayer dollars, we are more than willing to listen. Home Depot DIY products installed on County property by amateurs with no engineering analysis is a nonstarter.”
PROJECT HISTORY SUMMARY
February 2022
The first government documentation for the observatory project appears in a Red Lodge City Parks Board meeting in February 2022, although Theresa Whistler claims the project began in 2021. The meeting minutes reference a possible 12’x12’ square building stating, “An MOU (Memorandum of Understanding) between Dark Skies and the Parks Board would be required. They do not need electricity and she believes the parking on the South end of the rodeo grounds would be sufficient.” A supporting document included a grant request for $1,000 and estimated a total project cost of “approximately $8,800-$11,500.” “With just a little collaboration and funds to install a simple prefabricated dome we may build and maintain this observatory…”
(Note: After the County made clear that their property is not available for unrestricted City use, the parking available alongside the road was deemed sufficient.)
April 2022
During the Red Lodge City Council meeting on April 26, 2022, Resolution 3599 supporting the concept of an observatory passed 5-0, with then councilperson Whistler “abstaining” from the vote even though she made an impassioned plea for the observatory to her fellow council members moments before. In describing the size of the project in her presentation she stated, “What we’re asking is that we are allowed to put down a 20 by 20 concrete structure.” As far as the building size, “We don’t have dimensions yet, but roughly 15 by 15 would be the ideal max.”
Resolution 3599 WHEREAS Statements Are Not Supported
Resolutions begin with "Whereas" statements, which provide the basic facts and reasons for the resolution, and conclude with "Resolved" statements which, identify the specific course of action approved.
Two important Whereas statements from Resolution 3459 dedicating Van Dyke Park are referenced in Resolution 3599:
“WHEREAS, the recommendation by the Red Lodge Parks, Trails and Recreation Board is to continue the use of the land as an open-space park with trails.”
“WHEREAS, the City of Red Lodge 2015 Growth Policy, 2015 Comprehensive Parks Plan and 2016 Active transportation Plan state the need to increase access and recreational opportunities with linear parks.”
Included in the Whereas statements in Resolution 3599 are:
WHEREAS, the community’s demographics, trends and recreational interests have grown to appreciate the nature of our rural dark skies… (Residents of Red Lodge and the rest of Carbon County have appreciated the night skies for generations as is evidenced by the private observatories dotting the landscape.)
WHEREAS, there is significant support for an observatory in the City of Red Lodge (no proof of support in the form of petitions, funds raised or any other documentation was provided to the City or to this reporter when requested.)
WHEREAS, resolution 3459, dedicating Van Dyke Park as a permanent open-space park with trails provides for additional recreational opportunity and limited building (Resolution 3459 makes no mention of building, limited or otherwise and, in a public meeting, Whistler stated she was on the Parks Board when Van Dyke Park was dedicated to preserving the native environment in its natural state. Creation of the park itself satisfies the planning documents’ identified need for “additional recreational opportunity.”)
WHEREAS, Hero’s STEAM Center Board has proposed building an Observatory at a northcentral location in Van Dyke Park upon a cement slab that shall not exceed 20’ by 20’ (Six months later the first phase of a 30’x36’ slab would be poured to accommodate a 16’x24’ observatory that would require a large solar panel array structure be built to provide the electricity Whistler had specifically stated would not be needed.)
Resolution 3599 resolved that:
The City supports the concept of the Whistler Observatory to be developed at Van Dyke Park;
The City agrees to review the design of the structure to be submitted by Hero’s STEAM Center for acceptability;
At the time a design for the Observatory is approved by the City, the City agrees to meet with Hero’s STEAM Center Board to discuss construction, ownership, operation and liability of the observatory.
Autumn 2022
On October 18, 2022 a 10’x12’ concrete pad was poured in Van Dyke Park.
On November 2, 2022, at the Parks Board meeting Whistler submitted the first draft of an MOU dated October 31, 2022. Regarding construction progress, the minutes state: “Cement pad for the observatory has been poured.” No dimensions are given.
February 2023
On February 1, 2023 at the Parks Board meeting Whistler reported that a 10’x12’ “viewing pad” is in place and that a 16’x24’ observatory is being manufactured. “She will be meeting with contractors soon to determine funding needs and timeline.” It was brought up that with an MOU in place, the observatory wouldn’t need to go through the event process with the City or carry as much liability insurance. The Board voted to recommend that the city council executes the MOU with Hero’s STEAM Center for the observatory.
March 2023
On the morning of March 16, 2023, Whistler appeared before the commissioners regarding their concerns about the observatory. The commissioners reiterated their displeasure at being named as a stakeholder in fundraising material when they had not been informed or consulted. Whistler apologized. When asked, she admitted to having no permits but stated she is working through the City’s procedures.
Commissioner Bill Bullock pointed out that the County has longstanding plans to build a new sand shed and to move the Red Lodge District Shop to the south Fairgrounds property across the road from Van Dyke Park. The sand shed is designed as a 24-hour operation with south-facing lighting. Whistler suggested that the County could install motion sensors on the lighting to mitigate the impact on the observatory.
Parking was another concern for the County. They stated parking on the street is limited and parking south of the Rodeo grounds is not an option as it is County property. As a City resident and taxpayer, Bullock expressed his concern regarding the longterm future of the observatory. He referenced a number of other park projects that volunteers pledged to maintain at inception but then had to be picked up by the City when the originators moved on. Whistler thought several people and groups might carry the project into the future, but she hadn’t discussed it with them. She said there would be next to no maintenance as it will “just be a metal shed”. Whistler noted she plans to start fundraising and grant writing after she figures out the cost. Whistler stated she has increased her personal pledge from $15,000 to $20,000.
July 2023
Fundraising often shows the level of local citizen enthusiasm for a project
September 2023
At the September 12, 2023 Red Lodge City Council meeting, Terri Durbin, then representing Ward 2, requested Resolution 3599 be placed on the agenda to discuss concerns surrounding the Whistler observatory project at Van Dyke Park. Durbin was concerned that construction had begun on a facility that bore no resemblance to what was contemplated and approved by City Council in its resolution. She wanted to know how this project had grown to three times the size approved in the resolution without approval from or even consultation with Council.
A main concern of Durbin’s was that the Resolution called for the cement slab at the observatory to be no more than 20x20 but it had grown to 30x36. “I’m looking for a paper trail and there is no paper trail…Who made the decisions? It is in conflict with our Resolution that we passed to give the okay on the project. Where was the disconnect down the line?” asked Durbin.
During Council discussion it was determined the project was not brought to City Council, the Land Use and Planning committee or the Planning Board for approval but only to the Parks Board. The Parks Board is limited to an advisory capacity. “Again a problem, no paper trail. The Planning board never reviewed the plans, they had no knowledge of it, never even brought up to them, another red flag,” said Durbin.
April 2024
The Whistler Observatory is dedicated and opens to the public.
September 2024
At the September 4, 2024 City of Red Lodge Parks Board meeting, there were a few people during public comments who spoke in support of the City insisting the County modify their lighting and for a living fence along the road in front of the observatory before Theresa Whistler presented those options as her solution to the “light pollution problem” at the Whistler Observatory. Whistler proposed a 20-foot wall of Rocky Mountain Juniper along the road that would grow tall enough to block the lights from the Carbon County property across the road and be dense enough to block the car lights moving along the road that are also vexing dark skies enthusiasts. The Whistler solution seemed to be put on hold after its effect on the road in the form of snow drifts and safety issues were considered. It was determined that the Board would ask the City to approach the County about modifying or turning off the fairgrounds lights.
Whistler stated that she had been told by County staff that the lights had been turned on at the request of the commissioners and law enforcement. Whistler seemed incredulous: “I don't know how long the buildings have been there, but they’ve been dark for years; and they're empty unless they're being used.” The Whistler Observatory is a 16’x24’ building that Whistler has at various times described as a “metal shed,” a “tourist draw” and a “City amenity”. If it is open every Friday of the year for 1.5 hours as advertised, the observatory will be open 0.89% of the year. In its history, the observatory claims it has welcomed over 300 visitors. The County land to the south brings in thousands of visitors each year.
During the meeting, it was brought up that the observatory is built on City Park ground that is designated open space. Mayor Westwood mentioned that legal counsel pointed out that, by statute, a dedicated park can only be altered by a simple majority vote of the citizens. Whistler asked, “Are you taking this back to say we need to reverse a decision on an observatory in Van Dyke Park?” To which the mayor replied, “I am really trying really hard not to do that.”
The conversation then turned to fundraising for the shields. Someone mentioned they had retrofitted some lights at the ice rink with shields. When asked how much it cost, the emphatic reply was, “A lot!”
October 2024
At the October 2, 2024 Parks Board meeting, Red Lodge City Councilperson Chelsea Toupin reported that Mayor Dave Westwood had spoken to County Commissioner Bill Bullock to ask why the County lights were on all the time. “(H)is response was there were some safety concerns when lights were getting shot out at the County buildings, and it was the suggestion of law enforcement to leave the lights on and keep them on.”
Whistler stated she found it odd that the lights were left on now after she hadn’t seen them on for a couple of years and insinuated the County was only turning the lights on to annoy users of the observatory. “(Turning the lights on) seems it’s in relation to us putting a building there.” Bullock was in the audience and assured her the observatory was not a consideration in the decision. Public safety and protection of property were the sole concerns.
Whistler insisted that her observatory had been in the works for three years and is now a City amenity that is threatened by the County’s lights. When Bullock was asked by the Parks Board if the County would consider changing out the light fixtures, Bullock replied that the facility had been there for 80 years and the County does not have the extra time, money or manpower to modify County buildings or turn lights on and off to suit the needs of a private building that was designed and built without consideration for the County’s current and future needs and plans. When asked if the Commission would consider putting shields on the lights if the entire project was funded by the City, Bullock said that there would be a basis for a conversation at that point.
When a Parks Board member suggested perhaps limiting the modification request to just a few fixtures at the south end of the fairgrounds instead of all the lights at the fairgrounds, Whistler interjected, “So here's the thing. We went through this with Northwestern Energy, right? A whole community just nonstop calling (NWE). They took the lights off. ‘We don't need the lights anymore.’ Magically, they don't need the lights anymore.”
Magical Thinking Can Result in Astronomical Utility Bills
It wasn’t magic that allowed NorthWestern Energy to remove lighting from the structures, it was re-engineering. When a community or person expresses concerns to NorthWestern Energy about one of their utility projects, NorthWestern Energy tries to address their concerns in the best and least costly way possible. When the only way to address a concern is extremely expensive, they must weigh the cost of re-engineering against the possible negative public relations effects or a possible lawsuit. In the case of the Red Lodge stretch of the recent powerline construction, it was determined that re-engineering was appropriate. That means work was halted on that stretch and the personnel and equipment were moved to other sections of the project while that stretch was re-engineered. After the towers were re-engineered, skilled workers were sent to Red Lodge to modify those towers to the new specifications. After the modifications passed quality control checks, personnel and equipment were transferred back to Red Lodge to finish that section of the project. 100% of the cost of modifying that section of the powerline will be passed on to NorthWestern Energy customers.
Bullock explained that after several years of saving on lighting bills by keeping the lights around the fairgrounds off at night, Carbon County learned the savings weren’t worth the risks as the facility experiences an increase in demand for weddings, reunions, livestock events, private shows and other events while at the same time experiencing increased criminal and bear activity. Whistler responded with, “We haven't seen any bears. I don't know why, in eight years, all of a sudden bears would be an issue. We all carry bear spray. We know how to do that.” Whistler Observatory social media posts and invitations to the public contain no information on bear activity, avoiding bear encounters or carrying bear spray.
“The viewing pad affords everybody a safe and secure place to set up their scopes, and it's dark and it's accessible. So if you've ever had your own personal telescope around, it's completely, you know, a nice, accessible place to do that, but you'd still have to bring your own bear spray; so, there are bears up there.”~Theresa Whistler, September 22, 2023 Public Presentation
Bullock informed the meeting that the sand shed is on hold until at least next fiscal year to budget funds for a cement floor to address neighbors’ concerns. He stated the County would be open to discussing solutions that don’t compromise safety or building integrity and that don’t add a cost burden or liability on the County taxpayer.
April 2025
At the April 2, 2025 Parks Board Meeting, Doug Reynolds presented the Whistler Observatory’s new ask of the Parks Board and City. He first stated that the County was once again presented three options to mitigate their lighting which were rejected. The first was to turn off their lights when the observatory is in use. The second option was to install motion sensors. The last option floated by the County was light shields. Having exhausted their efforts with the County, they are now asking to plant a 10-foot living fence to block the County lights.
Lights are a safety issue. Lights will be needed especially when there is potential to be up there in 2 day sandbagging for our lives if we flood after we get a lot more rain on Wednesday.
The mission of this observatory was commendable in so far as educating and entertaining everyone to the mysteries of the universe above us. Conversely the implementation was done with little adherence to the required steps for any improved property. As mentioned in the article certain parts of the process did not appear to have been properly sequenced, or even addressed at all. It appeared at times that the owner/promoter believed that the end product superseded the appropriate steps to achieve that result. It also appeared at times that the owner/promoter had little regard for adjacent lighting that was safety related. That left a bitter taste in many who might have otherwise enjoyed the facility. There is no doubt in my mind that the current mayor and council will eventually rectify any gray areas that unfortunately were utilized by the previous administration, reminding us all that the ends do not justify the means.