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Judge hears Egan Slough ballot initiative arguments

KIANNA GARDNER Daily Inter LakeMay 23, 2019

A river of Flathead Valley residents donning blue shirts in support of Yes! For Flathead Farms and Water flowed into the benches on the right side of the room at Flathead District Court on Tuesday morning, with a small tributary of denim having to trickled to the left side of the room as well.

For the next hour, an oral argument unfolded in front of District Judge Robert Allison regarding an ongoing lawsuit against Flathead County Commissioners from the Egan Slough community.

Owners of Montana Artesian Water Co. have challenged the legality of a ballot measure that went before Flathead County voters nearly one year ago. Ballot initiative 17-01 passed in June 2018 with 70 percent voter support. It expanded the Egan Slough Zoning District by hundreds of acres to envelop the Creston-based water bottling facility, which at full operating capacity can withdraw around 225 million gallons of water per year. Opponents hoped expanding the district, which places tight restrictions on commercial and industrial operations, would bring bottling to a standstill.

Attorney Victoria Marquis, representing Montana Artesian, argued there were five reasons for finding the measure illegal, four of which are based on statutes that govern local initiatives.

One of her primary arguments is violation of the single-subject rule, which states that “some or all types of legislation may deal with only one main issue,” usually for the purpose of avoiding complexity in laws. The 2018 resolution had asked for the unzoned property to be zoned in addition to “limiting allowable uses” of the facility within that zone.

However, Jonathan Motl, secondary representation for the plaintiffs along with attorney David Wilson, said the issue of the single-subject rule has been “litigated sparsely” in Montana and said “the Supreme Court has never struck a citizen initiative on the basis of single-subject.”

While he acknowledged Marquis’s single-subject argument is “legitimate,” he explained the legal process of building a measure, which intertwines citizens with officials.

Motl said local government is required to review a sample petition, such as the one created by Flathead residents prior to pursuing ballot measure 17-01, for language and compliance among other things.

Aside from the single-subject issue, Marquis also said the 500-plus acres added to the Egan Slough District at the time of expansion is less than one percent of the total acreage of Flathead County, emphasizing how the matter shouldn’t have been decided by the entire county electorate.

“The number of affected individuals is so much smaller than the 17,579 voters who passed the initiative that the initiative is clearly illegal,” Marquis said.

She continued, saying they had determined there are 25 individuals surrounding the facility that would be impacted by the operations - a number that is too small to justify a countywide ballot measure.

However, Wilson said the matter is one that can have “county-wide financial, social and environmental impacts.”

Wilson also said when looking at zone changes, commissioners should take into consideration the greater population outside of the subject zone. But the commissioners decided not to expand the Egan Slough district in 2018 despite the matter having steep public interest. Their decision cued a lawsuit against the county and the subsequent initiative.

“The zoning decision by the county commissioners to not adopt the zone is a decision within their power and that decision would allow an initiative to move forward,” Wilson said, offering validation for the birth of the measure.

Marquis on the other hand said decisions regarding zone changes are ones to be determined by commissioners and the Planning and Zoning Department, stating that it is “inappropriate” for the greater county to put the matter to a vote.

Wilson also referenced a recent decision by Judge Kathy Seeley of Lewis and Clark County District Court to overturn the facility’s water permit granted in 2016. Seeley’s decision pointed to a failure on Montana Artesian’s part to follow the rules of the application process, which voids the preliminary decision and subsequent order.

“Void means void,” Wilson said. “It was a faulty application.”

Judge Allison said he will settle on a decision in the next two to three weeks.

Reporter Kianna Gardner can be reached at 758-4439 or kgardner@dailyinterlake.com

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