Lakeshore erosion lawsuit slated for separate trials

By MEGAN STRICKLAND

for the Lake County Leader

The Montana Supreme Court on Monday denied a former operator of Kerr Dam’s request to have a single jury determine if it is liable for shoreline erosion caused by water-level fluctuations on Flathead Lake and if so, what damages should be awarded to the plaintiffs.

The high court found that Flathead District Court Judge Katherine Curtis was correct in determining that one jury will hear whether or not PPL Montana is liable for shoreline damage caused to thousands of properties on Flathead Lake in the autumn of years 2000-2006. PPL Montana once operated the dam, which is now operated by the Confederated Salish and Kootenai Tribes. If PPL Montana is found liable, a separate jury will hear how much each defendant will receive in damages.

“Concerning PPL’s claim that the damages jury will reconsider and decide issues which the liability jury determined, we note that the District Court is well aware of the issues involved in these proceedings and has indicated correctly that the two juries are to consider separate and distinct issues,” the Montana Supreme Court concluded. “The District Court has discretion to manage and administer these jury trials in order to prevent a redetermination of issues and avoid any potential violation of the Seventh Amendment.”

PPL is set to go to trial in October over whether it is liable for damage to the shoreline caused by water-level fluctuations on Flathead Lake.

The lawsuit originally was filed by Rebecca Mattson (who has since died) in 1999 and has been sent to the Montana Supreme Court on multiple occasions. One of the former operators of the dam, Montana Power, settled with more than 3,000 plaintiffs for an undisclosed amount of money in 2015.

Earlier this year, Curtis ordered that the case be split with one jury hearing whether PPL is liable for shoreline erosion and another jury determining what damages should be awarded if the plaintiffs prevail.

PPL said in a writ for supervisory control that it believes separating the cases is a violation of the Seventh Amendment.

“The liability and damages phases of this case cannot be tried to separate juries without violating the Seventh Amendment’s mandate that facts tried to one jury may not be re-examined by any subsequent jury,” PPL Montana attorney Sean Morris wrote in his filing to the high court. “Simply, there is no possibility that a liability jury could take its hard-earned knowledge about the reasonableness or unreasonableness of erosion affecting some 3,000 properties and somehow pass that knowledge off to subsequent damages juries.”

Morris claimed that splitting the case could result in an indefinite number of trials in determining damages and tax the Flathead County and state court docket because there are so many plaintiffs.

Judge Curtis ruled against the same argument when it was filed in Flathead District Court in March.

“Furthermore, as recognized by the court and parties when bifurcation was previously considered, the Montana Supreme Court ... essentially mandated bifurcation in ruling that the issue of reasonableness of the operation of the dam was ‘incapable of being resolved on a property-by-property basis,’ whereas ‘the amount of damages ...will then have to be determined on a property-by-property basis,’” Curtis wrote.

The trials for the lawsuit are slated to last several weeks.