Battle Continues Over Egan Slough Ballot Initiative

Creston residents denied legal intervention to set zoning expansion vote next regular election, turn to Montana Supreme Court

By Tristan Scott
The Egan Slough and farm land near Creston, seen from the air during an EcoFlight tour on June 27, 2017. Greg Lindstrom | Flathead Beacon

Creston-area property owners determined to prevent the construction of a proposed water bottling plant near their farmland met an impasse this week in their quest to extend a special zoning district to preclude some industrial uses, but continue to pursue all legal channels.

The first blow came when Flathead County District Judge Heidi Ulbricht denied one resident’s legal demand that Flathead County commissioners set a Nov. 7 election for a ballot initiative on the proposed Egan Slough Zoning District expansion, which would include the site of the proposed bottling plant.

The commissioners are required to set the ballot initiative 85 days prior to the next regular election, which is Nov. 7, meaning their deadline to do so is Aug. 14.

Amy Waller, who lives and owns property near the proposed plant, and her attorney, Tom Esch, filed a complaint and request for a writ of mandamus that would have slated the ballot initiative for the soonest regular election possible.

“Our argument is that they don’t have discretion to set it; they are required to set it and they haven’t,” Esch said. “It’s meant to give notice to everybody who wants to vote, and to give the elections department time to prepare the ballot.”

“We want the election held sooner rather than later, and that is what we are advocating,” he continued, noting that the next opportunity for a countywide election after Nov. 7 is the June 2018 primary. “There is a certain amount of exigency to this.”

Esch called on the commissioners to place the issues on their agenda for Aug. 14 or sooner, citing state law requiring that a certified petition “must be submitted to the electors at the next regular or primary election.”

On Aug. 8, Judge Ulbricht denied the request, ruling that the Board of Commissioners’ legal duty to submit the ballot initiative to voters does not begin until 60 days after receiving the petition.

“Those 60 days have not passed,” she wrote in her order denying the request.

Esch then filed a motion to reconsider on Aug. 10, arguing that case law supports the constitutional requirement to place issues on the ballot as soon as possible.

If the commissioners wait until after Aug. 14, he said, there won’t be time to place the issue on the Nov. 7 ballot.

“An election delayed is an election denied,” Esch wrote.

Ulbricht denied the second motion to reconsider on Aug. 11, prompting Esch to immediately file an emergency writ of mandamus with the Montana Supreme Court. The emergency motion was accepted the same day, and Esch was hopeful for quick consideration.

The ballot initiative at the center of the dispute was sought by the group Yes! For Farms and Water, which is opposed to the water bottling plant, and collected enough signatures to qualify its zoning proposal as a countywide ballot initiative by garnering support from more than 15 percent of Flathead County’s registered voters.

The Flathead County Election Department determined on June 27 that the petition had received 12,455 verified signatures, surpassing the required minimum of 10,067. According to Flathead County Clerk and Recorder Deb Pierson, 1,913 signatures were dismissed, either because they were duplicates or could not be verified.

The group launched its petition on March 29 in response to permits sought by Lew Weaver, the Creston man interested in turning his farmland into the Montana Artesian Water Company.

Weaver applied for a permit with the Department of Natural Resources and Conservation that would allow his company to produce up to 140,000 water bottles per hour, 24 hours a day, seven days a week. The water right would allow Weaver’s company to receive 710 acre feet of water annually, equaling roughly 1.2 billion 20-ounce water bottles.

Neighbors to the proposed bottling facility have publicly raised concerns, and last year asked the Flathead County Commission to expand the Egan Slough Zoning District created in 2002 to preserve the land’s agricultural character. The zoning district prohibits some industrial use and limits new parcels to no less than 80 acres.

When the commission rejected the zoning expansion, the landowners sued the county, arguing that the commission didn’t adequately respond to public comment when considering the district’s expansion.

Although Weaver supported creating the district in 2002, including zoning overlays on chunks of his property, he now opposes the expansion. It would add 530 acres to the existing 1,150-acre district created in 2002, the lion’s share of which falls on Weaver’s property.

If Flathead County voters approve the ballot initiative to expand the district, the land would fall under the auspices of the Egan Slough Zoning Commission, which would be charged with determining whether Weaver’s business fits within the eligible uses.

Stay Connected with the Daily Roundup.

Sign up for our newsletter and get the best of the Beacon delivered every day to your inbox.