Lawsuit targets Flathead Lake level
Becky Mattson stands on the edge of her Flathead Lake property near Bigfork. Mattson says the shoreline used to extend much farther but severe erosion has eaten away at the land. She has sued to try to force Montana PPL to lower the lake level in the fall. Chris Jordan/Daily Inter Lake
A lawsuit aimed at forcing Flathead Lake to be lowered earlier than normal in the fall to curb shoreline erosion raised questions Tuesday about whether the lawsuit should even be in a state court, considering that it would affect operations at a dam licensed by the federal government.
"We're talking about a state court regulating Kerr Dam," said District Judge Ted Lympus, in asking questions about whether he should preside over the lawsuit led by Flathead Lake property owner Rebecca Mattson.
During a Tuesday hearing before Lympus, the defense said the litigation isn't aimed at the federal government - it's focused on a company that has been profiting under discretionary terms of a federal license at the expense of landowners around the lake.
In the end, Lympus deferred on a ruling and asked for more information from both sides within 14 days.
The case was initiated against the Montana Power Co. in 1999 by Mattson, who has seen severe erosion of her property at the head of Flathead Lake since she bought the land in 1971.
Several years ago, Montana PPL acquired ownership of Kerr Dam along with the defendant's role in the case, which has been expanded into a class action that now includes other Flathead Lake property owners.
Martin King, a Missoula attorney representing Montana PPL, noted that the lawsuit initially sought monetary damages, but the matter before the court this week was an unprecedented request for an injunction that would force the power company to change the way it operates Kerr Dam.
Specifically, the plaintiffs are asking that the lake's full-pool elevation of 2,893 feet be lowered by three feet, starting on Sept. 15 and continuing to the end of October. An expert witness testified that the change would substantially reduce shoreline erosion that currently occurs with the lake being kept at full pool well into November.
King said the change would result in losses in hydroelectric power revenue for the company, and there could be numerous impacts for other parties that have become accustomed to the way the lake has been managed for years.
That's why the dam's operation is governed under a license issued by the Federal Energy Regulatory Commission, after a lengthy process that allows all "stakeholders" to have input into dam operations, he said.
King argued that the plaintiffs' case does not belong in a state court because it would require Lympus to order operating terms for a federally licensed dam.
But Tom Meites, a Chicago attorney representing Mattson, said the terms in the license give Montana PPL complete discretion on how to manage the lake in the fall. Specifically, the license gives discretion between 2,883 feet and the full-pool elevation of 2,893.
"That is a discretionary provision in the license," he said. "They can do whatever they want between those two figures."
King said that discretion is a specific term granted in the federal license.
Meites refuted claims that the property owners' grievances are a matter to be settled by the Federal Energy Regulatory Commission or a federal court. The lawsuit, he said, is a loss-of-property claim that can rightly be pursued in a state court.
"The reality is, if we go to FERC, it will be another five years before we get any change," Meites said.
An injunction is necessary to avoid further "irreparable" erosion damage to lakefront properties, he said.
Testifying as an expert witness for the plaintiffs was Mark Lorang, an associate research professor at the University of Montana Yellow Bay Biological Station who has been studying erosion around Flathead Lake for more than 20 years.
Lorang said that shoreline erosion is most severe when the lake is at full pool, and it gets worse during the historically windy month of October.
Lorang testified that he has documented land losses of "several feet per hour" in the most extreme combinations of full-pool lake elevations, wind storms and a sloshing effect on the lake called a "lake seiche."
"I conclude from the results of my recent studies that lowering the lake level to 2,890 by the end of October will essentially stop erosion of the full pool shoreline and greatly reduce damage to shoreline structures," Lorang stated in his affidavit supporting the plaintiffs.
Reporter Jim Mann may be reached at 758-4407 or by e-mail at jmann@dailyinterlake.com