The legal fight over a Flathead County water-bottling plant is headed to the Montana Supreme Court.
Two months ago, Lewis and Clark County District Court Judge Kathy Seeley voided Montana Artesian Water Company’s permit to withdraw up to 710 acre-feet of water — an acre-foot is the amount of water to cover an acre of land 1 foot deep — per year from the aquifer near Creston. On Tuesday, attorneys for both the company and the Montana Department of Natural Resources and Conservation (DNRC) appealed that ruling to the Supreme Court.
“We do think the District Court decision was flawed,” said Montana Artesian spokesperson Darryl James. The company wants the permit reinstated, he said, and takes particular issue with the judge’s stance towards the data the department collected.
In 2017, during a hearing that led to the permit being granted, Department of Natural Resources and Conservation (DNRC) staff testified that Montana Artesian omitted required hydrological information from its application forms — but also that these forms were often submitted incomplete.
That was a problem, Seeley ruled in March. “When an agency ignores its own minimum standards required in the initial application, the resulting decisions dependent upon that information” — in this case, the plant’s water-use permit — “cannot stand as valid or correct.”
“The court overstepped the agency’s authority and expertise in making a decision,” James said. “The expert testimony from DNRC said we had the information we needed” to find that the bottling plant would have no “adverse effect” on nearby water rights. DNRC spokesperson John Grassy said the agency has no comment at this time.
Steve Moore, chair of Water for Flathead’s Future, disagrees.
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“By not having the data, the entire analysis was brought into suspicion," he argued. “By their analysis, we have no way of knowing what the (aquifer) drawdown would be” if Montana Artesian made use of its full water right. “It could be negligible, it could be catastrophic.”
Moore’s group had joined the Flathead Lakers group and several local residents in suing the company and department. Now, he stands by Judge Seeley’s decision.
“There is a simple requirement, that terminology in the law, that some things, X, Y and Z must be provided and that’s pretty unambiguous,” he said. After more than three years fighting the bottling plant, Moore’s ready for this next phase. “We are ready to carry this further and will do so with the full intention of sinking both (Montana Artesian) and the DNRC,” he wrote in an email.
But for now, James said that the plant is continuing to operate, under an exemption in state law that allows use of up to 10 acre-feet of groundwater per year, at a rate up to 35 gallons per minute.
Over the past three years, the bottling plant’s opponents have pursued several lines of attack against Montana Artesian, and coming weeks also promise new developments for other efforts.
In June 2018, Flathead County voters overwhelmingly approved a ballot initiative expanding the Egan Slough zoning district to cover the plant. That campaign’s organizer, Yes! For Flathead Farms and Water, cast it as a major victory at the time, but it instead spurred a year of wrangling over the initiative’s legality and its meaning for plant operations. A ruling in a related lawsuit is expected within the next few weeks.
“It’s a twisting and turning path, there’s no doubt about it,” Moore said.