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Fresh lawsuit over Flathead bottling plant

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The sun rises over the Swan Range and Flathead River just south of Kalispell.

Just three months ago, opponents of a water-bottling plant near Kalispell were declaring victory.

Flathead County voters had overwhelmingly approved ballot initiative No. 17-01, which expanded the Egan Slough Zoning District to cover the site of Montana Artesian Water Company’s controversial facility. Upon passage, the campaign’s organizers said it would “protect our rivers, lakes, fish and wells from the bottling plant.”

But rather than end the nearly three-year dispute over the bottling plant between Kalispell and Flathead Lake, the ballot initiative has simply brought it to a new phase — and triggered another lawsuit. While Montana Artesian maintains the bottling plant was grandfathered into the zoning district, the groups that backed the initiative beg to differ, and now seek a court order to have its outcome enforced.

“It appeared that the bottling plant was starting to ramp up its operations, and we reapproached the county and didn't get any answer and thought we’d better take it to court,” explained Kim Wilson, a partner at Helena-based Morrison, Sherwood, Wilson & Deola, PLLP.

He and Missoula attorney Jack Tuholske are representing the three plaintiffs — Yes! For Flathead’s Farms and Water, the Egan Slough Community, and resident Amy Waller — in their case against Flathead County's Board of Commissioners, Planning and Zoning Department and City-County Health Department, as well as Montana Artesian.

Their complaint, filed Sept. 7 in Flathead County District Court, discusses Montana Artesian’s activities after the ballot initiative passed June 5, noting a series of necessary state and county health and manufacturing permits that it received in late June and July. On Aug. 31, the Daily Inter Lake reported that the business was retailing water.

These activities, the lawsuit argues, placed it in violation of the Egan Slough Zoning District’s regulations. The guidelines make no mention of water bottling, but they do list a fairly narrow range of permitted uses and establish lot size requirements, all with the goal of preserving farmland and controlling “the scattered intrusion of uses not compatible with an agricultural environment.”

Land uses that don’t conform with these guidelines, they state, “may continue in the manner and to the extent that it existed or was being used at the time of adoption of these regulations.”

Because the bottling plant wasn’t bottling at the time the initiative passed, the lawsuit claims, it can’t bottle now. Montana Artesian “was not manufacturing and was not commercially producing shipping bottled water prior to the adoption of the zoning district, and therefore commercial production [was] not grandfathered in.”

The plaintiffs seek declaratory judgments finding the Montana Artesian plant in violation of the zoning district regulations, and say Flathead County must enforce those regulations against the firm, among other measures.

“The legal issue here, we believe, is going to be whether and if so to what extent the water bottling plant might have an argument that it’s grandfathered in,” Wilson said, “and we do not believe that Montana cases would agree with that position.”

Montana Artesian spokesperson Darryl James disagrees.

“The real trigger in this case isn’t a food license or a manufacturing license,” he said, referring to the permits Montana Artesian received after the initiative had passed. “The only trigger ... is with reference to the issuance of a building permit and establishing the intent of a building property.”

James pointed to the Flathead County Zoning Regulations’ definition of “use” as “the specific purpose for which a building or lot is arranged, intended, designed, occupied, and maintained.” A separate definition of “existing use” links it to the issuance of a building permit. The Montana Artesian plant had been constructed well before the ballot initiative.

Beyond the core question of whether the zoning district’s guidelines apply to the bottling plant, the lawsuit has spilled into other fissures between Montana Artesian and its opponents. James and Wilson also differ on the permissibility of industrial uses in the zoning district; while Wilson described “silence” from county authorities, James said that “we know they’re looking at this, they’re reviewing real and substantive legal issues that we’ve raised.“

The task of parsing these issues will fall to Flathead County District Court Judge Robert Allison. The case will go to a hearing at 9 a.m. on Tuesday, Sept. 25, in Kalispell.

The Flathead County Attorney’s office declined to comment for this article.

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