Montana Court OKs Landowners’ Claims Over Lake Water Levels As Class Action

The Montana Supreme Court has ruled that litigation concerning the Kerr Dam on Flathead Lake and possible damage to lakeshore property resulting from fluctuating lake levels can proceed as a class-action lawsuit.

The Daily Inter Lake reported that the court ruled 5-2 to overturn the finding of Flathead District Judge Kitty Curtis that the cause of the erosion would have to be shown individually for each property on the lake and on parts of the Flathead River.

The high court said damage caused by fluctuating lake levels has to be considered in aggregate because the level of the lake is uniform and cannot be adjusted for individual lakeshore properties.

“A class action is far superior, for purposes of fairly and efficiently adjudicating the controversy, to innumerable individual lawsuits,” the court said.

But the high court also said any liability of defendants Montana Power Co. and PPL Montana would have to be determined on a case-by-case basis.

In its ruling, the court said the class-action lawsuit is for anybody who has owned property on the northwestern Montana lake or portions of the river since November 1991. That means about 3,000 properties with multiple owners could take part in the lawsuit, said the Chicago-based attorney representing property owners.

“There could be multiple owners associated with the 22 years of those properties,” Jamie Franklin said. “All of those people would be class members. We will be proceeding on behalf of all those people and try to recover any damages they’ve incurred.”

Litigation began in 1999 over the level of Flathead Lake, with plaintiffs led by north shore property owner Becky Mattson, who died at 88 in July 2010.

The property owners allege that Kerr Dam operations led to severe erosion around the lake by keeping the lake at artificially high levels, particularly during fall storms. The property owners said before the dam, the lake reached a peak elevation of 2,890 feet, while after the dam the lake at full pool elevation reached 2,893 feet. The dam was built in 1938.