State high court orders new hearings in erosion litigation

The Associated Press

HELENA - The Montana Supreme Court has ordered new hearings on several aspects of a lawsuit filed by a group of Flathead Lake landowners against PPL Montana over its management of Kerr Dam.

A group of landowners was granted class action status for the lawsuit, filed in 1999, that argues Montana Power Co. and its successor PPL Montana caused unreasonable damage to their property by keeping Flathead Lake full into early October, when storms kick up waves that cause erosion on the shoreline.

PPL Montana argued that the landowners' properties are subject to easements, obtained in the 1930s, '40s and '50s, which allow the operator of Kerr Dam to flood, subirrigate, drain or otherwise affect landowners' properties with the waters of Flathead Lake.

A District Court granted summary judgment in favor of PPL Montana, saying its easements allowed for such erosion, but the Supreme Court ruled a hearing needs to be held on whether the water caused "unreasonable damage."

The Supreme Court, in a decision issued Tuesday, sent the case back to District Court.

The District Court also denied PPL Montana's request for a hearing on whether the class that had been certified in the lawsuit against Montana Power could remain certified as a class after PPL Montana purchased Montana Power's generating facilities and took over management of Kerr Dam.

The Supreme Court vacated District Court orders certifying the class and returned the issue to the lower court for reconsideration.

In the past two years, PPL Montana has lowered the lake level earlier in the fall to curb shoreline erosion.