Judge: Zoning District Barring Water-Bottling Plant is Lawful

Ballot initiative prohibiting industrial uses on Egan Slough survives legal challenge intact

By Tristan Scott
Egan Slough along the Flathead River. Courtesy Steve Harvey

A ballot measure that places side rails on allowable land uses along Egan Slough, including a nearby water-bottling plant that produces and sells artesian water, is a legally enforceable initiative, according to a June 6 ruling by Flathead County District Judge Robert B. Allison.

The ruling comes as a victory to plaintiffs who have pushed back against the project through various legal channels, including a ballot initiative to expand the Egan Slough Zoning District created in 2002 as a way to protect the land’s agricultural character. The zone prohibits most industrial uses.

The lawsuit was filed by the Egan Slough Community, Yes! For Flathead Farms and Water and resident Amy Waller against the Flathead County Commission, the Flathead County Planning Department, the Flathead City-County Health Department, and the Montana Artesian Water Company.

Allison on May 21 heard oral arguments from attorneys on both sides of the wide-ranging issue, with counsel for defendants seeking to dismiss the lawsuit through partial summary judgment based on their contention that the ballot initiative, which passed last June with 70 percent of the vote, is illegal on its face.

They argue the initiative is illegal because it adversely impacts landowners within the expanded district, but not the entire county electorate that voted on the initiative in the 2018 general election.

In siding with the plaintiffs, Allison ruled that the entire county is affected and that countywide residents have an interest in the zoning district.

“Because there are these county-wide interests, the electorate voting on an initiative consists of county-wide voters, not exclusively voters residing in the proposed zoning district,” Allison wrote. “If the opposite was the case, and only voters in the proposed zoning district voted on the initiative, there would be the risk of formation of an archipelago of citizen-initiated zoning districts throughout the county, each interested primarily in its own self-interest. It is a county-wide interest that this not happen; hence, a county-wide vote on a citizen-initiated zoning initiative even where, as here, the tract of land which is the subject of the initiative is a mere fraction of the whole. Initiative 17-01 is not illegal, and does impact the entire county.”

Controversy over the Montana Artesian Water Company (MAWC) began as soon as the company’s owner, Creston landowner Lew Weaver, applied for permits from the state Department of Environmental Quality (DEQ) and Department of Natural Resources and Conservation (DNRC).

Weaver received a permit with the DNRC 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.

The ballot initiative added 530 acres to the existing 1,150 acres in the zone, including Weaver’s facility, which, under the zoning district, is in violation of the district’s regulations.

Attorneys for MAWC moved for summary judgment in the case saying the ballot initiative is illegal on six independent bases, including that it impacts a small fraction of county residents, even though it was put up for a county-wide vote.

Meanwhile, in a separate legal dispute, a district judge in March reversed and remanded the state’s decision to allow the facility to begin production, ruling that the DNRC erred when it granted a permit allowing production.

Attorneys for MAWC and the state DNRC are appealing that order, according so Steve Moore, president of Water for Flathead’s Future. Still, Moore said Allison’s ruling was a win for the plaintiffs.

“This is a great victory because MAWC tried to thwart our electoral victory by claiming that the initiative was illegal,” Moore said.

In another ongoing suit brought by the Egan Slough Community against the county commissioners, Moore said plaintiffs are awaiting the final outcome to determine whether MAWC is grandfathered into the expanded zone and able to bottle water notwithstanding the initiative vote.