Montana Supreme Court Approves Class Certification for Property Owners Effected by Kerr Dam


Once again the issue of what is required to certify a class for class-action litigation has been battled in court. In this case it went up to the Montana Supreme Court, which sided with the plaintiffs and agreed to certify the class.

The case involves several property owners along the shoreline of the Flathead River in Montana who are going to court for erosion against the sides of the lake caused by the Kerr Dam keeping the lake at artificially high levels. According to the lawsuit, the lake reached peak elevation levels of 2,980 feet before the dam was built in 1938. Now the Dam keeps the lake at 2,983 feet, which is causing severe erosion to the sides of the lake and widening its “footprint” particularly during fall storms. While the amount of erosion caused by the high levels might be deemed reasonable when considering the recreational needs of shoreline property owners and businesses in the summer, the degree of erosion occurring when the lake’s level is kept artificially high into October and November could be deemed unreasonable.
Initially, Flathead District Judge Kitty Curtis denied certification of the class, saying that the cause of the erosion would need to be shown on a property-by-property basis around the lake and on parts of the Flathead River affected by the lake levels.

The state Supreme Court disagreed, saying that damage caused by the dam over the years has to be considered collectively because the lake can only be maintained at singular elevations, and those elevations cannot be changed for particular lakeshore properties. The liability of the defendants on the other hand, will have to be determined separately, as will the damages for each property. The two defendants are Montana Power Co. and PPL Montana. Shoreline easements granted to the dam operator when the dam was built provide protections for that operator.

The case has gone to the Supreme Court for review three times since litigation got under way in 1999. This most recent ruling defines the “class” as anyone who has owned property on the lake or certain portions of the river since November 1991. Due to that very large range, the class includes about 3,000 properties and could include multiple owners of each property.
Since the state Supreme Court’s ruling, the class-action lawsuit is going back to the Flathead District court, which will schedule hearings for 2013. Jamie Franklin, a Chicago-based attorney who is arguing the case on behalf of the plaintiffs, says he is ready for the hearings to proceed.
This ruling demonstrates another victory for class-action litigation. At a time when courts and judges across the country are finding reasons not to certify class actions and contracts are making it more difficult for consumers to bring class action litigation to the courts, decisions like these seem to be getting more rare.

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