POLSON – When Mother Nature controlled the level of Flathead Lake, prior to the dedication of Kerr Dam in 1938, spring runoff filled the lake by April.
Although there were times it topped what nowadays is considered its full pool of 2,893 feet, there were more times it didn’t, and on average it got to just 2,890 feet, or three feet lower than it does now.
Back then, as early as June, it started dropping again, and the lake level fell steadily over the hot summer months until it was down approximately eight feet from its average high.
The next spring it would repeat the process.
The dam, built to generate electricity, let its operators artificially control the level of the lake, at least within the confines of its federally granted license. That allowed the lake to be maintained at 2,893 feet throughout the summer months, which benefitted boaters, other recreationists, the tourism industry, and some would also say lakeshore owners, whose property was worth more because the lake stayed full during the summer.
It also allowed the level to artificially remain at or near full pool deep into the fall, and there are property owners on Flathead who say that has cost them land, and money. They say waves generated during fall storms – waves that never would have touched their land when the lake level lowered naturally – have eroded their property.
Acres of it, in some cases, especially along low-lying grassy areas such as the north and south shores.
Others have spent money putting in seawalls or rip-rap in an effort to protect their land – miles and miles of it, when you total it up.
In 1997, a woman named Becky Mattson contacted Larry Elison, then a professor of constitutional law at the University of Montana.
“She wanted to sue for loss of land she owned along the lake,” Elison, now retired from UM and living in Gold Canyon, Ariz., says. “She claimed she had lost 40 acres because of the way Montana Power Company was operating the dam. She was an environmentalist most of her adult life, and I have always thought of this as an environmental case.”
Elison, 80, who has been involved in the case since, initially led Mattson to Missoula attorney Cal Christian. Fourteen years ago, in 1999, the lawsuit was filed.
A few days ago the Montana Supreme Court, weighing in for the third time in the long-running litigation, overturned a District Court judge and ruled it can go forward as a class-action lawsuit.
That means that everyone who owns, or has owned, Flathead lakeshore since 1991 is a potential plaintiff in the case.
It adds up to thousands of people.
Attorneys estimate the ruling affects 3,000 pieces of property along the lake’s 187 miles of shoreline, a figure that includes Flathead’s several islands. Many of the properties have likely had multiple owners over the past 22 years.
The lawsuit covers 1991 to the present because it was filed in 1999. Jamie Franklin of Chicago, one of the attorneys for the plaintiffs, explains that under the law, they were allowed to claim damages going back eight years prior to the filing.
Things get complicated pretty quickly.
Individual pieces of Flathead Lake property aren’t the only things that have had multiple owners since 1991.
So has the dam.
Montana Power Co. owned it in 1991, and it became a Touch America holding when MPC restructured itself as a telecommunications company.
PPL Montana took it over in 1999, and Touch America later declared bankruptcy and went belly-up. The long-defunct Montana Power Co. remains a defendant in the suit, presumably because its former insurance carriers might have to cover any alleged damages incurred while MPC was in charge.
Further muddying the case is the fact that those 187 miles of shoreline contain all kinds of lakeshore, from low-lying grassy areas to gravel beaches to solid rock cliffs. Some parcels are clearly more vulnerable to wave erosion than others.
Key to the Supreme Court’s 5-2 ruling that the litigation can go forward as a class-action lawsuit is that, as Justice James C. Nelson wrote for the majority, “Short of negating the laws of physics, there is simply no way for the dam operator to maintain the water level at different elevations around the lake simultaneously. … Whatever elevation is selected, it applies to every shoreline property concurrently.”
All the differing characteristics and uses must be considered together, the court said, as a part of determining whether Kerr Dam’s operators had operated it in a reasonable manner.
“A class action is far superior, for purposes of fairly and efficiently adjudicating the controversy, to innumerable lawsuits,” the ruling added.
In her dissent, Justice Beth Baker wrote that the District Court Judge, Kitty Curtis, said evaluating the lake level’s impact on thousands of properties “inevitably would require individualized trials to determine Defendants’ liability, making a class action overly complicated and uneconomical.”
Montana Power obtained flood easements from lakeshore property owners over a 20-year period from the 1930s to the 1950s.
While the language in the thousands of contracts varies to some extent, the Supreme Court says all grant MPC and its successors “the perpetual right and easement for flooding, sub(-)irrigating, draining or otherwise affecting” all the lands on the lake through the operation of Kerr Dam while not exceeding the maximum level of 2,893 feet.
“Of course, ‘eroding’ is not listed,” Nelson wrote, “and we agreed with the Landowners that the right to ‘erode’ is not included in the term ‘otherwise affecting.’ ”
“We concluded that the property owners did not intend to grant, and the dam operator did not intend to obtain, ‘an unfettered right to sink their properties completely and permanently into the lake,’ ” Nelson also said. Any such interpretation would be “absurd,” he added.
Still, the Court noted, some erosion is inevitable when one is granted the perpetual right to flood, sub-irrigate and drain land. The question for a jury, if it ever goes to trial, will be whether it was reasonably necessary for dam operators to maintain lake levels where they did.
Martin King and Sean Morris of the Missoula law firm Worden Thane, attorneys for PPL Montana, say they believe their client’s position is easily defensible.
“There is no question PPL complied with its (Federal Energy Regulatory Commission) license,” King said. “The levels of the lake have always been set within the parameters of the FERC license.”
Those levels, Morris said, were established when the license came up for renewal in the 1980s and after public meetings where local residents argued for keeping the lake fuller longer.
PPL Montana has also been bound by a Pacific Northwest Coordination Agreement among power systems in the Columbia River Basin, they say, and agreements with the Confederated Salish and Kootenai Tribes concerning how much, and when, water can be released into the lower Flathead River because of concerns about how that fishery is affected.
“There are limitations to how much water they can release,” Morris said. “They can’t just drop it to keep it at any level. The license contains certain dates, and provision that require the dam to do what’s best for recreation and irrigation. It’s a complex issue.”
The plaintiffs counter with what Elison calls “boxfuls” of scientific research that says if dam operators had simply lowered the lake by just a foot or so starting in mid-September, erosion would have been greatly reduced, and in some cases halted completely.
University of Montana assistant professor Mark Lorang, who works at UM’s Yellow Bay Biological Station on Flathead Lake and has studied the lake for 30 years, says his research has shown that a combination of wind, waves and lake seiches (created when wind causes the water to “slosh around” within the lake’s borders) regularly keep the lake at levels higher than the 2,893 feet measured at a U.S. Geological Survey gauge in Polson.
In fact, Lorang said in a 2005 affidavit, the actual lake level can be a foot higher than the 2,893 measurement, and remain there for several days.
“When storm waves coincide with a lake seiche and full pool levels, bank erosion can become severe, and I have documented erosion reaching rates of land loss on the order of several feet per hour,” Lorang said.
Those waves can reach up to five feet beyond the full pool mark of 2,893 feet, he said.
The north shore, where Becky Mattson owned land, had sustained losses on the order of 40 to 50 feet per year since Kerr Dam began operating, Lorang said.
“Shoreline erosion in Polson Bay can reach levels similar to the north shore where sections of shoreline simply collapse and wash into the lake,” he added.
Court documents indicate Montana Power’s own study of erosion in the early 1990s determined that “without intervention, wildlife habitat and developed lands such as the Eagle Bend golf course (in Bigfork) could be inundated within a few decades.”
Lorang, in his 2005 affidavit, said that when the lake failed to reach 2,893 feet in 2001 because of an unusually dry year, tribal lands in Polson Bay he was studying “showed nearly zero erosion.”
He went on to say that if a drawdown was started on Sept. 15, and the lake was lowered to 2,890 feet – its old average high-water mark prior to the construction of Kerr Dam – by the end of October, it would “dramatically slow or even prevent further erosion of the lakeshore.”
When PPL Montana did make changes in 2007 that lowered the level to 2,891 feet by Nov. 1, “Sure enough, the problem started receding,” said Franklin, attorney for the plaintiffs.
Morris said changes in the Pacific Northwest Coordinating Agreement allowed PPL Montana to begin lowering the lake level earlier that year.
Next comes the process of trying to determine the thousands of potential plaintiffs for the class-action lawsuit, which already includes several lakeshore property owners who have, over time, joined the case Mattson started.
All the potential plaintiffs will have the option of opting out of the lawsuit. Despite the ruling that the lawsuit can proceed as a class action, the Supreme Court noted that if dam operators were found to have unreasonably damaged property, “the amount of damages, of course, will then have to be determined on a property-by-property basis.”
King, one of the attorneys representing PPL Montana, said that because it’s now a class-action suit, discovery “could take years.”
“The case is a long ways from being decided,” King said. “We feel that in light of the Supreme Court ruling, a substantial amount of discovery is going to have to take place.”
Franklin saw it differently.
“Now, after all these years,” she said, “the case can kick into gear and go forward with all the properties.”
Mattson, however, won’t see its conclusion. The woman who first took action to stop the erosion died, in 2010, at the age of 88.
Reporter Vince Devlin covers Lake and Sanders counties for the Missoulian. He can be reached at 1-800-366-7186 or by email at vdevlin