Groups aim to appeal bottling plant case to Supreme Court

In an effort to appeal their case to the Montana Supreme Court, Egan Slough Community and other plaintiffs in an ongoing case against several Flathead County officials and departments have asked Flathead County District Court for the final judgment on zoning matters related to a controversial water bottling plant in Creston.

According to a motion filed in Flathead County District Court on Thursday, Egan Slough Community and others in the lawsuit are asking Judge Robert Allison to file the final judgment on their remaining claims and the defendants’ cross-claims stemming from a 2018 lawsuit. Essentially, the motion states that due to two prior and separate rulings related to the bottling facility, the District Court has nothing further to decide on claims that have been brought forth by Egan Slough and its case partners. In addition, the motion claims those rulings mean cross-claims made by owners of the bottling facility “have either been full adjudicated or have been rendered non-justiciable.”

However, defendants in the case — Flathead County commissioners, Flathead County Planning and Zoning Office, Flathead City-County Health Department and the bottling plant, Montana Artesian Water Co. — say an entry of judgment in this case is precluded because their cross-claims remain “valid and justiciable.” One example of a cross-claim would be the issue of spot zoning.

Should Allison grant the motion, there will not be any remaining claims in the case that are not subject to appeal. According to the motion, “Flathead County, like the Plaintiffs, believes that the interests of justice are better served by allowing this case to go to the Montana Supreme Court to address zoning issues of first impression.”

This matter has seen its fair share of controversy over the years and can be traced back to September 2018 when Egan Slough, along with the local advocacy group Yes! For Flathead Farms and Water and the group’s organizer, Amy Waller, sued the commissioners, county departments and Montana Artesian.

The litigation claimed the county failed to perform legal duties by not enforcing the Egan Slough Zoning District — an agricultural and residential district that places tight regulations on commercial and industrial uses.

In June 2018 Flathead County voters approved a ballot measure, by a margin of 70-30, to expand the Egan Slough Zoning District by more than 500 acres to encompass the bottling plant. Voters, conservationists and advocates hoped this expansion would bring bottling operations to a standstill. However, the county allowed bottling operations to continue despite the zoning district expansion.

The county Planning Office later launched an investigation into the facility’s permitted operations, which at full capacity allows for the withdrawal of 230 million gallons annually. The Planning Office eventually determined the plant is grandfathered in and is a legal, nonconforming use — findings that were challenged by Egan Slough Community and others.

But in November 2019, Allison ruled in the county’s favor, stating in his ruling, “the court finds insufficient evidence to allow it to conclude the office abused its discretion in determining MAWC’s land use as a water bottling facility is a legal, nonconforming use…”

This decision was one of two rulings to happen in 2019 that Egan Slough and Yes! For Flathead Farms and Water now claim in their recently filed motion that warrant final judgment, as there is “nothing further to decide.”

The other ruling occurred about six months earlier in June 2019 in a separate lawsuit that challenged the legality of the popular ballot measure. The owners of Montana Artesian had tried to argue, among other points, that the facility’s operations do not impact the entire county and therefore, the matter should not have been put to a county-wide vote.

According to the motion filed Thursday, given the court’s June 6, 2019, and Nov. 25, 2019, decisions, all of Montana Artesian cross-claims have either been “full adjudicated or have been rendered non-justiciable because they are no longer ripe and this Court [District Court] lacks subject jurisdiction over them.”

The motion concludes the heart of the matter comes down to Flathead County citizens’ constitutional right to governance by initiative, specifically, the ballet initiative passed by 70% of voters.

“Here, the residents used that constitutional power to implement zoning — something this Court has already ruled was a legal exercise of their rights. Plaintiffs’ efforts, however, were frustrated by actions and inactions of the Flathead County Commissioners and the Flathead County Zoning Department,” the motion asserts.

Reporter Kianna Gardner can be reached at 758-4407 or kgardner@dailyinterlake.com