While a recent ruling closed a major chapter of litigation involving a controversial water bottling plant in Creston, representatives from both sides of the legal battle say there is potential for further legal action, including an appeal to the Montana Supreme Court.

Late last week, Flathead County District Court Judge Robert Allison ruled a 2018 ballot initiative to expand the Egan Slough Zoning District to encompass Montana Artesian Water Company (MAWC) was fairly and lawfully enacted. More than 70% of Flathead County voters approved the measure.

Soon after the measure was certified, local nonprofit and plaintiff in the case Yes! For Flathead Farms and Water, sent a letter to the county requesting the zoning regulations be enforced. The organization eventually filed a complaint after bottling operations continued.

MAWC answered that complaint by contesting the legality of the initiative and eventually submitted six crossclaims after Yes! requested the company show cause. Those crossclaims are subjects of the lawsuit, which also grew to include the Flathead County Commissioners, the Planning and Zoning Department and City-County Health Department for various decisions the groups made on zoning and permit approvals for the plant.

But on Dec. 15, Allison submitted his third and final order on the case regarding summary judgment. He ultimately determined the initiative and zoning expansion will “preserve the rural nature of the property, limit commercial activity, protect natural resources such as water, clean air and noise, emphasize the self-governance principle at the heart of an initiative, impose restrictions on the subdivision of the property.”

Over the course of the litigation, the court has ruled the initiative was legal, could not be considered “reverse spot zoning” and did not constitute a “taking” of a private property interest under the constitution. The ruling settled all remaining district court litigation involving the facility.

Now, should MAWC and other defendants in the suit choose, various decisions within Allison’s ruling can be appealed to Montana’s high court. Darryl James, spokesman for Montana Artesian, said Tuesday that the company is considering an appeal “but no decision has been made yet and there are certainly substantive issues that give us concern.”

James explained the owners and others are concerned over how the court “is interpreting some of Montana Artesian’s vested rights,” regarding permitted operations, its well water and more. He also said much of the lawsuit seemed to focus more on whether the county commissioners and planning and zoning office are doing their jobs correctly.

In his summary, Allison wrote “the county commissioners ‘may’ appoint a planning and zoning commission, which, if appointed, would have various duties including adoption of a development pattern.” He continued, “in response to the June 21, 2018 initiative, the commissioners have done nothing, but may act in the future. The absence of a development plan is irrelevant, may exist in the future should the commissioners’ indifference be abandoned in the face of continued growth, and is addressed de facto by the Egan Slough zoning district regulations.”

In response, commissioner Randy Brodehl said Monday he doesn’t anticipate appointing a planning and zoning commission “unless we hear back from the county attorney something that would cause me to have a change of heart.” He said the Flathead County Attorney’s Office is in the process of evaluating Allison’s ruling, though he did not say whether the commissioners were planning to appeal the decision.

Commissioner Pam Holmquist declined to comment based on the possible pending appeal and commissioner Phil Mithcell did not respond to questions for this article.

JAMES ALSO added that the lengthy litigation has impacted the company’s ability to market its product, which was recently awarded a bronze medal at an international water tasting event that drew more than 100 bottled water entries. Future litigation aside, he said MAWC is working on ways to restore the company’s image beyond the lawsuits.

“They [MAWC owners] are frustrated by the continued assaults on their ability to do business. Every time someone searches the company, the information they see first is about the lawsuits,” James said. “It’s been difficult to market based on that, even when you have an award-winning product. So they are really focused on that right now.”

On the other side, Dustin Leftridge, legal representative for Yes! For Flathead Farms and Water, said the organization is ready to battle future litigation should MAWC decide to go that route.

“If MAWC does appeal the ruling, Yes! Is prepared to continue fighting to uphold the constitutional right of citizen-initiated zoning and will contest an appeal if and when it’s made,” he said via email.

As for current operations, James said the plant will continue to produce and distribute water bottles at the same rate it has for the past few years. While the plant has the ability to produce 1.2 billion 20-ounce water bottles per year, officials have made it clear MAWC hasn’t been producing at that level and according to James, “a lot of things would have to change in order for them to run at capacity.”

“The Weavers have never wanted to build a Walmart-sized building at that site. There was never an intent to bottle that much water at that location,” James said.

A separate court ruling in 2019 determined MAWC is able to operate to the “manner and extent” that it existed on June 21, 2018, the date the zoning was certified. And the most recent ruling by Allison confirms the zoning was valid and that the prior existing use applied.

However, Leftridge said there remains a question as to what that “manner and extent” was as of the date of certification, which is an issue that could also be appealed to the Supreme Court. On the other hand, James said MAWC is engaging in discussions with state and local regulators to determine operational limits the plant will have to work within once the litigation is finalized.

Reporter Kianna Gardner can be reached at 758-4407 or kgardner@dailyinterlake.com.