The Montana Supreme Court on Wednesday will hear oral arguments in a lawsuit over whether a Creston water-bottling plant would be allowed to operate under a grandfathered capacity under zoning regulations.

The Montana Artesian Water Company is challenging a ballot initiative that was approved by Flathead County voters in June 2018. The initiative expanded the Egan Slough Zoning District in order to create more regulatory oversight of Montana Artesian’s bottling plant.

In December of 2020, Flathead District Court Judge Robert Allison denied the company’s claims against the initiative that was approved by 70% of voters.

In 2018 Yes! For Flathead Farms and Water and Amy Waller sued Montana Artesian, along with the Flathead County commissioners, the Planning and Zoning Department and City-County Health Department over the validity of the initiative.

Montana Artesian then filed several counterclaims and has asserted the bottling plant is a pre-existing non-conforming use because it was established prior to the creation of the Egan Slough Zoning District.

Allison ruled that the initiative was fairly and lawfully enacted. 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.”

While the ruling found that the expansion of the zoning district is lawful, it also found that the water-bottling facility is a legal, nonconforming land use within the expanded zoning district.

Soon after the ruling, both sides said that there was the potential for an appeal to the Montana Supreme Court. Plaintiffs in the case are seeking to overturn the decision that the facility is a legal nonconforming land use, while the water company argues that the district court erred in ruling that the zoning district expansion is lawful.

The matter has seen a fair amount of controversy over the years. The litigation claims that the county failed to perform legal duties by not enforcing the Egan Slough Zoning District — an agricultural and residential district that places tight regulations on commercial and industrial uses. Voters approved expanding the zoning district by more than 500 acres to encompass the bottling plant.

Voters, conservationists and advocates hoped this expansion would bring bottling operations to a standstill. However, the county allowed bottling operations to continue despite the zoning district expansion.

After the county planning office looked into the facility’s operations it determined that the plant is grandfathered in and is a legal, nonconforming use — findings that were challenged by Egan Slough Community and others.

In a separate lawsuit also regarding the water-bottling plant, Flathead County District Court Judge Amy Eddy recently ruled that the state Department of Environmental Quality unlawfully granted a permit allowing the company to discharge its wastewater into the Flathead River. That decision built off another from a district judge in Helena this fall that said the state Department of Natural Resources erred when it issued a water-use permit to the company.

Oral arguments in the case before the Supreme Court begin at 9:30 a.m. on Wednesday and can be live-streamed through the court’s website at http://stream.vision.net/MT-JUD/

Features editor Heidi Desch may be reached at 758-4421 or [email protected].