Lake levels lawsuit set back

It took 15 years to get the case to trial, and now it may be much longer before a class action suit over Flathead Lake levels gets its day in court.

A trial date for next week in the 1999 case that Rebecca Mattson filed against Montana Power Co. has been vacated. Co-defendants PPL Montana filed a Montana Supreme Court challenge that claimed Flathead County District Court was not the proper venue to hear the case. The supreme court disagreed and sent the case back to Flathead County. In the meantime, the case lost its Oct. 19 court date, and it could take several more months before a new trial is set, because the trial is expected to last six to eight weeks.

The class-action lawsuit against Kerr Dam operators Montana Power and PPL Montana claims that the high lake levels in the late 1990s caused significant shoreline erosion along the Flathead River and Flathead Lake. 

Kalispell attorney Amy Poehling Eddy said she hopes the final court date for the trial “is within the year. The plaintiffs are ready o go to trial; they have been waiting 15 years.”

Attorneys for the class of property owners settled with Montana Power’s insurance company in August for $1.45 million, which now leaves PPL Montana as the sole defendant in the case.

Montana Power is no longer a corporate entity in Montana. It went bankrupt in 2001 after converting to a telecommunications company called Touch America, but it had insurance coverage for the years that it operated Kerr Dam. The class action lawsuit dates back to 1999, when Mattson filed the suit to recover damages from high lake levels that she claimed caused erosion on the Flathead River and Flathead Lake. PPL Montana took over operations of the dam after Montana Power went bankrupt. 

Plaintiffs claim the excessive high water was a trespass, while defendants say the high water levels were within the scope of their federal permit to operate Kerr Dam. That original permit, dating back to the 1930s, allowed the dam operators to submerge or sub-irrigate portions of land along the Flathead River and Flathead Lake. The case is perhaps the longest-litigated case in Flathead County. 

While Montana Power is now out of the lawsuit by settling with the plaintiff class, the portion of the case against PPL Montana remains. PPL Montana on July 29 had appealed the case to the Montana Supreme Court over the district court’s finding of fact and jurisdiction. 

Chicago attorney Michael Mulder represents the plaintiff class along with Amy Eddy and Calvin Christian. Mulder’s office received a fee of $551,136 when it settled with Montana Power’s insurance company in August. Mulder said costs in the case are significant. The case has gone from Flathead County District Court to the Montana Supreme Court four times, and in each appeal the plaintiffs were successful in bringing it back to Flathead County for further litigation. 

Plaintiffs’ attorneys also had to navigate the class-action suit through Montana Power’s bankruptcy proceedings. “On at least two occasions we had to breathe life back into the case,” Mulder said.

Since Montana Power had insurance policies on a very narrow window of time that the company owned Kerr Dam while the alleged damages took place, proving those damages at trial would have been difficult, Mulder said.