Montana Supreme Court reverses the Montana Department of Natural Resources and Conservation (DNRC) grant of commercial water right to Montana Artesian Water Company in Creston, MT
For seven long years, the attorneys at Ferguson & Coppes have worked diligently to protect water rights and hold the Montana Department of Natural Resources and Conservation accountable for its decision making. This saga – the largest administrative proceeding ever before the Department – now is over as the clients of Ferguson & Coppes recently prevailed in their most recent appeal to the Montana Supreme Court.
In 2015, the Montana Department of Natural Resources and Conservation (DNRC)issued a water use permit, allowing the Montana Artisan Water Company (MAWC) to produce up to 140,000 water bottles per hour, 24 hours a day, seven days a week – roughly 1.2 billion, 20-ounce water bottles annually – by tapping into a groundwater aquifer along the Flathead River.
Although MAWC insisted it would only use a fraction of the water-usage capacity assigned under the permitted right, the bottling operation attracted considerable attention, fueling concerns among neighbors and residents living near the Egan Slough property. Nonprofit conservation organizations Water for Flathead’s Future and Flathead Lakers, along with a list of residents, sued the state Department of Environmental Quality and the Department of Natural Resources and Conservation, challenging the two permits granted to MAWC that the state agencies issued — one for wastewater discharge and another for water usage.
All briefs having been submitted on November 30, 2022; our attorneys and clients eagerly awaited a response from the Montana Supreme Court, which came on May 16, 2023 in a 44-page unanimous decision.
The Supreme Court upheld a decision by a district court judge in Helena that said the state erred when it issued a permit to MAWC in 2017, citing that the company did not provide sufficient data, as required by DNRC’s own rules, for the agency to conduct a valid scientific analysis and justify issuing the permit. In its decision, the Supreme Court said DNRC made a mistake in its decision to approve the permit by committing errors of law during the processing of the application, including the failure to submit all the data and failure by the agency to fulfill its duty to analyze all potentially affected water sources. “The errors of law and process undermine confidence in the agency’s determinations … Consequently, this combination of deficiencies leaves us with the definite and firm conviction that, upon review of the whole record … a mistake was made.” Because there is so much water in the aquifer, the agency “assumed the proposed well would have little impact and passed it along without diligent review,” the Court wrote.
Counsel for Petitioners Graham Coppes said he was “thrilled” with both the substance and the tone of the Court’s decision. Beyond striking down DNRC’s flawed decision making process and scant hydrology, in a spectacular move out of pure equity for their effort and winning arguments, Montana’s high court awarded our clients their attorney’s fees. Following remand, Ferguson & Coppes, was able to secure hundreds of thousands of dollars for their clients (paid in settlement), both from the bottling company and the DNRC.
In a true “David vs. Goliath” story, Montana’s citizens were the true victors in a decision that will stand testament to the value of cherished and pristine water resources.
Held v. Montana Decision: Montana is violating the rights of young people with policies that prohibit the state from considering climate change effects when it reviews coal mining, natural gas extraction and other fossil fuel projects
The 103-page decision by Judge Kathy Seeley in the Lewis and Clark County District Court in Helena marked a major victory in the first youth-led climate case to reach trial in the U.S. and could influence similar cases nationwide.
16 plaintiffs filed the lawsuit in 2020, then between the ages of 2 and 18, claiming the state’s permitting of projects like coal and natural gas production contributed to climate impacts to Montana’s environment, harming the young plaintiffs.
The case was brought against the state, the governor, the Montana Department of Environmental Quality, the state’s public commission office, as well as other state departments. The plaintiffs’ claims have been confirmed, as Seeley states that the plaintiffs, now aged 5 to 22, have a “fundamental constitutional right to a clean and healthful environment.” Seeley also held that policies that prohibit state agencies from considering climate and emissions impacts when approving fossil fuel projects are unconstitutional.
Montana is one of only three states that have the affirmative right to a healthful environment in their constitutions. That legal language (see below) was a cornerstone of the Held v. Montana case, which had young people testify directly about climate impacts upending their lives, including lead plaintiff Rikki Held, 22, who testified that droughts have left “skinny cows and dead cattle” on her family’s ranch in eastern Montana and wildfires have made ash fall from the sky. Climate scientists, policy researchers, and a delegate to the 1972 Montana Constitutional Convention also testified on behalf of the youths.
In the June 2023 trial, Plaintiffs argued that despite its sparse population, Montana is responsible for a large share of global emissions, through the major production of coal, oil, and gas, as well as pipelines and other infrastructures that are used to ship those fuels elsewhere.
Expert witnesses presented scientific facts concluding that there is an overwhelming scientific consensus that the Earth is warming as a direct result of greenhouse gas emissions, primarily from burning fossil fuels. Judge Seeley’s decision cited those expert witness testimonies, as well as the evidence that Montana’s temperatures are expected to increase, and with that, increased impacts of climate change, such as heat waves, that have adverse impacts on young people’s mental health and quality of life.
“Youth plaintiffs have experienced past and ongoing injuries resulting from the state’s failure to consider [greenhouse gas emissions] and climate change, including injuries to their physical and mental health, homes and property; recreational, spiritual and aesthetic interests; tribal and cultural traditions, economic security and happiness”.
The state argued that climate policy should not be set by courts and the plaintiffs had not proved that the global crisis could be attributed to Montana’s relatively small emissions.
A spokesperson for Montana Attorney General Austin Knudsen (R) called the ruling absurd, and said in a statement that the state will appeal the decision.
This “legal theory has been thrown out of federal court and courts in more than a dozen states,” according to spokesperson Emily Flower. “It should have been here as well, but they found an ideological judge who bent over backward to allow the case to move forward and earn herself a spot in their next documentary.”
What This Means
Judge Seeley issued declaratory relief, which will have an impact on Montana’s policies moving forward by “invalidating statutes prohibiting analysis and remedies based on GHG emissions and climate impacts.”
“By prohibiting consideration of climate change, GHG emissions, and how additional GHG emissions will contribute to climate change or be consistent with the Montana Constitution, the MEPA Limitation violates Plaintiffs’ right to a clean and healthful environment and is facially unconstitutional,” the ruling said.
Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said Seeley’s findings, including that climate change is a serious health and environmental threat, could “become an inspiration” for lawsuits in states with similar constitutional provisions and make it more difficult for defendants to wave away climate concerns. “I think this is the strongest decision on climate change ever issued by any court.”
Lawsuits that use a safe climate as an affirmative human or constitutional right are abundant in courts worldwide, but success has been mixed for advocates filing these lawsuits in the US. That is slowly changing. In addition to this ruling, the Hawaii Supreme Court recognized a human right to a stable climate in a March ruling against a biomass power plant developer.
The clear, constitutional language established in this ruling may also boost the push for affirmative climate rights in more than 15 other states considering similar provisions in their own constitutions, according to Maya van Rossum, founder of the Green Amendment for the Generations national movement. “That’s really important, because it’ll help make sure that when these kinds of constitutional provisions are passed in other states, they’re even stronger when it comes to climate,” van Rossum said.
Youth-Led Climate Cases
The case was just one of several youth-led climate cases, seeing young climate activists suing governments across the US over degradation of the climate through oil and gas development. Another of those cases is Juliana v. US, a landmark lawsuit against the federal government that was greenlighted to proceed to trial by an Oregon district judge in June after being dismissed by the 9th U.S. Circuit Court of Appeals in 2020. Another case filed by young people in Hawaii against the state’s Department of Transportation is scheduled to go to trial next year, making it the second in the country to do so.
Lawyers from legal nonprofit Our Children’s Trust spearhead the cases and lauded the “sweeping” Monday victory in Montana. “Today, for the first time in U.S. history, a court ruled on the merits of a case that the government violated the constitutional rights of children through laws and actions that promote fossil fuels, ignore climate change, and disproportionately imperil young people,” Our Children’s Trust Chief Legal Counsel Julia Olson said in a statement. “In a sweeping win for our clients, the Honorable Judge Kathy Seeley declared Montana’s fossil fuel-promoting laws unconstitutional and enjoined their implementation.”
Ferguson & Coppes attorney’s Graham Coppes and Emily Wilmott have submitted the final briefs in what has now become a 5 year long battle to protect senior water rights and lawful agency decision making. After Graham and Emily prevailed for the second time in the First Judicial District, the Company again appealed. See Flathead Beacon article. Now, after all briefs have been submitted, on November 30, 2022, the Montana Supreme Court issued an order declaring that the matter has been submitted for decision to the full court sitting “en banc.” Our attorneys and clients eagerly await that decision.
The lawsuit, filed in 1st Judicial District Court in Broadwater County, alleges the defendants failed to do their duty to consider impacts and protect water and land resources from unreasonable degradation under the Subdivision and Platting Act and the Montana Water Use Act. The lots received Montana Department of Natural Resources and Conservation (DNRC) approval to use aggregated exempt wells. At the center of the issue is Horse Creek Hills, a four-phase, 435-acre subdivision in Broadwater County on the eastern shore and directly upstream from Canyon Ferry Reservoir and Confederate Creek.
The proposed site is a rural, predominantly agricultural landscape and borders both state and Bureau of Reclamation land. The co-plaintiffs said in a news release announcing the lawsuit the county has ignored overwhelming public opposition to Horse Creek Hills without taking a hard look at the negative impacts this subdivision will have on agricultural operations, water resources, local wildlife, and the livelihoods of Broadwater County residents.“Our senior water rights, cattle operations, neighborhood roads, and quality of life will all bear the brunt of this subdivision if it goes forward,” Carole Plymale, a cattle rancher in Townsend