High court closes oral arguments on water-bottler case

Running afoul with at least one Montana Supreme Court justice, an attorney representing the hotly contested water-bottling plant near Creston charged Wednesday that an “all out war” ensued soon after her clients first incorporated the company.

Moreover, Billings attorney Vicki Marquis, representing Montana Artesian Water Company in a slurry of appeals and cross-appeals heard Wednesday morning, added that the clash – and a later expansion of the Egan Slough Zoning District – was spearheaded with the sole intent to shutter the bottling operation.

“Montana Artesian is a classic mom-and-pop operation,” Marquis said during the virtual proceedings. “They did this right. They took the time to go through all of the permitting and regulatory requirements.”

The Montana Supreme Court closed oral arguments Wednesday on an appeal challenging the county- and district court-approved exemption for Montana Artesian to operate within the voter-approved expansion of the zoning district.

Justices also heard arguments that included a cross-appeal by Montana Artesian that the expanded district is illegal. Mostly centered on case law, statutes and regulations, the Wednesday proceedings lasted less than two hours.

A final decision on the case could take months. On Wednesday, Justice Dirk Sandefur took issue with Marquis’s initial remarks.

“Excuse me,” Sandefur said, stopping her mid-argument. “I don’t think there’s any dispute about the vehemence, and I think I would agree with you and your clients that a lot of the rhetoric here was certainly not civil.

“But this seems to me to be the classic thing that goes on in these communities with zoning decisions that are controversial,” he added. “And, I don’t understand what the vehemence, however uncivil, of the opposition to this, what its legal consequence [is] here in the context of the issues that are before this court.”

The zoning district expansion – a measure initially rejected by Flathead County commissioners in 2016, but later approved by county voters in 2018 by a 7-3 margin as ballot initiative 17-01 – was meant chiefly to further halt non-agricultural uses within the district.

The appeal, based on the zoning district exemption for Montana Artesian, was filed by advocacy nonprofits Egan Slough Community and Yes! For Flathead Farms and Water, as well as by neighboring resident Amy Waller. It resulted from recent lower court rulings by Flathead County District Judge Robert Allison.

Upholding county action on the dispute, Allison ruled in part that the ballot initiative proved fair and lawful, but also that Montana Artesian still could legally operate within the expanded district bounds as a nonconforming use.

ATOP MONTANA Artesian, Waller and the nonprofits sued the Flathead County Commission, Planning and Zoning Department and City/County Health Department.

Lew and Larel Weaver operate Montana Artesian.

The bottling facility was approved by state and county departments and originally permitted to draw nearly 230 million gallons’ worth of Made in Montana water, annually, at full production as a way to help secure the Weaver family, according to court records.

Among a multitude of legal challenges, district judges in Lewis and Clark, and Flathead counties have since ruled that state water use and wastewater discharge permits were unlawfully approved by the Department of Natural Resources and Conservation, and Department of Environmental Quality, respectively.

Both permits were ultimately revoked in district court, and then sent back to their respective departments to remedy approval shortfalls.

Water comes to the plant, as previously approved, via a 222-foot well tapped into a deep aquifer within the Flathead Valley, according to the final DNRC order granting water use for the company.

Wastewater was approved to be diverted as surface water and groundwater, according to the order.

Among myriad issues, Waller and the nonprofits have alleged Montana Artesian would draw down and pollute regional water resources. The bottling facility sits on land just north of the Flathead River near Creston.

Legal counsel for Waller and the nonprofits stressed in appeal filings that an allowable nonconnforming use in the district “may continue in the manner and to the extent that it existed or was being used at the time of the adoption of (the expanded district).”

Additionally, election results for the expanded district were certified by the Flathead County Election Department on June 21, 2018, at which point the full array of necessary permits and approvals had not yet been secured to operate the facility as a commercial water-bottling plant, the filings noted.

The appellants also noted that “prior to the election results being certified … (Montana Artesian) had not produced, sold or shipped commercial quantities of bottled water,” thereby disqualifying the operation as an allowed pre-existing use, regardless of future intentions.

The appellants are being represented by Kim Wilson of Morrison, Sherwood, Wilson and Deola in Helena, as well as Roger Sullivan and Dustin Leftridge of McGarvey Law in Kalispell.

ON CROSS-APPEAL, among several issues, Montana Artensian has contended that the expanded district equates to a stripping of property rights, i.e. water rights, without just compensation.

According to its filings, the bottling company asserted that Waller and the nonprofits also failed “to identify any error made by the district court or show how the county was unreasonable in their application of the laws and rules.”

The company was singled out by the ballot initiative for “detrimental treatment,” according to the filings.

“Its sole purpose was to stop Montana Artesian, and to do that, it created a fictional zoning district – where every parcel is ‘nonconforming,’” the filings noted. “[The ballot initiative] is ‘spot zoning of the worst kind.’”

Further, according to the legal filings, the ballot initiative allowed voters who were neither financially nor physically affected by the bottling facility to vote on and approve the expansion.

The Weavers began prospecting the water-bottling plant more than 25 years ago, according to the court records.

The Weavers incorporated Montana Artesian in 2014 “as another alternative on the property to supplement retirement incomes and make sure the property could be maintained by the family, the records noted.

FOR ITS part, the county asserted in its cross-appeal that a building permit obtained before the effective date of the expanded zoning district allowed Montana Artesian to maintain operations by way of being grandfathered in.

“So long as a building permit had been issued or construction commenced before the effective date of the zoning regulations, the ordinance creates a vested right to continue and eliminates the race to the finish,” Alan McCormick, a Missoula-based attorney representing the county, noted in cross-appeal filings.

“Flathead County’s enforcement decision is not an abuse of discretion and should be upheld,” McCormick wrote.

Also denying the claim that water rights were fully stripped from the Weavers, he said during the Wednesday proceedings that “everybody knew” the couple had been pursuing a bottling plant.

“There simply isn’t any question in this entire proceeding that the building that was being built on this property was being built specifically for the water-bottling facility,” he said.

Reporter John McLaughlin can be reached at 758-4439 or jmclaughlin@dailyinterlake.com