Finale in the works for lake level case

Teams of attorneys were back in court this week to create a timeline for a jury trial that could be the grand finale of a long-running disagreement over whether former operators of Kerr Dam should be held responsible for property damage allegedly caused by varying levels of Flathead Lake in the 1990s.

Flathead District Judge Kitty Curtis said she would examine her calendar for a date that would accommodate a five-week trial for Mattson vs. PPL Montana, which has been ongoing since 1999.

The lawsuit was filed by Lakeside resident Rebecca Mattson, who claimed that the power company kept Flathead Lake’s level high during the 1990s and that caused erosion and damage to property adjacent to the lake.

Mattson died in 2010 at age 88.

The case later turned into a class-action suit in which property owners claimed the high water level constituted trespassing on their property, but the dam operators argued that the varying water levels were within the scope of what was permissible under the federal permit that grants authority to run the dam.

Part of the case was settled in September with another previous owner of the dam, Montana Power Co. More than 3,000 class members who had owned property on Flathead Lake were collectively awarded $1.45 million from Montana Power’s insurance company. Montana Power went bankrupt in 2001 and the dam was purchased by PPL Montana, which is the plaintiff’s current target for assigning liability and possible damages caused by lake erosion.

Plantiff’s attorney Michael Mulder said in a hearing on Wednesday that another defendant might also need to be identified because PPL Montana sold the dam and in 2014 created a spin-off entity called Talen Energy. It is unknown if PPL Montana’s liability was a part of the new energy company’s formation.

“I don’t have an answer as to what company holds liability for this case anymore,” Mulder said.

PPL Montana’s attorney Sean Morris said the Talen Energy spin-off was merely a name change and that it should not impact the case.

“They never operated Kerr Dam,” Morris said of Talen Energy.

The parties also disagree about whether the same jury should through not only the trial but also a second phase of determining damages. PPL Montana believes it has a constitutional right for the same jury to hear the damages argument, but the property owners do not.

Judge Curtis said she would look into the matter since it could have a substantial impact on scheduling the case.

The attorneys requested a March or October trial date. Curtis did not immediately rule on the motion.

Reporter Megan Strickland can be reached at 758-4459 or mstrickland@dailyinterlake.com.