Flathead Lake property claims go to trial this fall

Montana Power Co. has long been dismantled, but a class-action lawsuit against the former power conglomerate will proceed to trial this fall.

The class-action case involves litigants who claim MPC, which formerly owned Kerr Dam on the Flathead River, operated the dam in a way that caused shoreline erosion.

MPC sold the dam and most of its assets and became Touch America, a telecommunications company. Touch America went bankrupt, ending nearly a century of MPC’s dominance as a utility in Montana.

PPL Montana, which bought the dam from MPC, is also named as a defendant. The Confederated Salish and Kootenai Tribes recently bought the dam from PPL Montana and will assume ownership in September.

The class-action lawsuit dates back to Nov. 8, 1999, when Rebecca Mattson and others sued MPC in Flathead County District Court on behalf of waterfront property owners on Flathead Lake and part of Flathead River. The plaintiffs claimed their property was damaged by the operation of Kerr Dam.

According to their filing, MPC obtained flood easements on all waterfront properties on Flathead Lake and Flathead River from 1930 to 1960. The Montana Supreme Court determined that the flood easements allowed MPC and later PPL Montana, as operators of Kerr Dam, to erode the shoreline if the operation of the dam was reasonably necessary and did not cause unreasonable damage to shoreline properties.

The plaintiffs, however, claim MPC and PPL Montana have operated Kerr Dam in an “unreasonable manner that resulted in loss of shoreline and property damage, including riverbank undercutting” on their waterfront properties by failing, in years prior to 2007, to lower the water level at the dam after Oct. 31.

On Dec. 27, 2012, the Montana Supreme Court ruled that the case should proceed on a class basis and ordered the district court to certify the class. On July 23, 2014, the district court entered an order certifying the case to include all people who owned waterfront property on the lake and on the river south of Lower Valley Road between Nov. 9, 1991 to Dec. 1, 2006, excluding the federal government, the defendants and the Tribes.

The defendants contend they have reasonably operated Kerr Dam. They also claim the flood easements, as interpreted by the Montana Supreme Court, allow for erosion and bank undercutting, and that their operation of the dam was within the scope of the flood easements. They also assert that Kerr Dam is required to coordinate its operation with other federal regulators and dams in the Pacific Northwest.

The plaintiffs are seeking financial damages for loss of land and money spent for repairs of erosion damage. A trial date has been set for Oct. 19 Flathead County District Court.