An attorney for the Remington Bar in Whitefish has asked a judge to dismiss several claims in a lawsuit filed by the Montana Department of Public Health and Human Services that sought to enforce former Gov. Steve Bullock's masking and social distancing mandates at five Flathead County businesses.

DPHHS, meanwhile, has beefed up its legal team by hiring attorneys from the Missoula firm Boone Karlberg, and asked the judge to dismiss the businesses' counterclaims.

In a motion for summary judgment filed late last week in Flathead County District Court, attorney Connor Walker argued Bullock's directive was unenforceable and state officials failed to demonstrate that the Remington Bar's activities were "injurious to the public health." The motion notes that, as of a Nov. 12 court hearing, Flathead County health officials had not definitively traced any coronavirus infections to gatherings inside the bar.

"The nuisance is the virus, not Remington’s business operations," the motion states. "Remington did not cause the pandemic, nor is there any factual support for the assertion that Remington has contributed in any way to the virus’ spread."

While a statewide mask mandate remains in effect to slow the spread of COVID-19, new Gov. Greg Gianforte last week rescinded other restrictions on businesses, including occupancy limits and mandatory closing times. Gianforte also has praised a bill that would shield businesses from legal liability related to coronavirus exposure as long as they comply with local, state and federal health requirements; the bill passed the state Senate on Monday.

The DPHHS litigation continues in part because the five Flathead County businesses have filed counterclaims, alleging the department selectively targeted them and hurt them financially. The other four businesses – Sykes Diner and Scotty's Bar in Kalispell, and the Ferndale Market and Your Turn Mercantile near Bigfork – are represented by Kalispell attorney Bruce Fredrickson.

In his motion, Walker argued DPHHS tried to "commandeer" the court's power to hold the businesses in contempt in order to enforce Bullock's mask directive, violating the separation of powers spelled out in the Montana Constitution.

"The mask directive is an executive branch policy that must be administered by the executive branch alone," the motion states. "It is not the role of the court to assume a policymaking nor an executive enforcement role, even if it wished to do so."

DPHHS filed suit in late October after sending inspectors to the five businesses on three consecutive days earlier that month. Department attorneys argued the number of maskless customers the inspectors observed made it clear the businesses had not undertaken "reasonable" or "good-faith" efforts to enforce the mask mandate.

The Flathead City-County Health Department had conducted previous inspections, issued warnings and referred Sykes Diner and the Ferndale Market to the county attorney's office, which took no enforcement action.

After a daylong hearing in November, District Judge Dan Wilson declined the state's requests for preliminary injunctions against the businesses. The businesses filed counterclaims later that month, at a time when cases of COVID-19 were skyrocketing and threatening to overwhelm hospitals across the state.

The department said in a statement at the time: "As the defendants seek to expand the lawsuit, we are working to find additional health-care workers to assist the local hospital in the Flathead because so much of its current workforce is in quarantine or isolation. Cases continue to skyrocket, hospital bed space is running low and health-care workers are exhausted. With rampant community spread, the situation needs to be taken seriously."

DPHHS also requested a new judge in November. District Judge Robert Allison is now assigned to the case.

Reporter Chad Sokol can be reached at 758-4434 or csokol@dailyinterlake.com