15 July 2016

Friday briefs: terror in France, changes at WFFF

Bastille Day murders. One man, one 20-ton rented refrigerator truck, 84 dead, more than 200 injured, at least 50 critically. Hard to stop, a large truck need not be filled with explosives to kill dozens. It just needs to be driven into a crowd by a madman soured on humanity. This will frighten people, for it’s not hard to imagine the tactic being employed again. Politically, I think it probably helps Donald Trump.

Changes at Water for [the] Flathead’s Future. Sandy Perry, whose energy and organizing acumen built a powerful movement opposing a proposed water bottling plant in Creston, near the Flathead River, has stepped down as WFFF’s leader. Deirdre Coit replaces her on an interim basis. Thus far, WFFF’s campaign against the water bottling plant has been close to a textbook example of how to organize.

On 1 August, the Department of Environmental Quality will hold a hearing on whether to issue a wastewater discharge permit for the bottling plant. On 5 August, WFFF will present to the Department of Natural Resources and Conservation a major brief contending that:

WFFF’s legal theory, which strikes me as dubious, appears to be based on MCA 85-2-311, Section 4, which governs appropriating and transporting water for use outside the state. My understanding of the statute is that it’s designed to thwart schemes such as Ralph Parson’s grandiose North American Water and Power Alliance; the 1964 Udall-Dominy scheme, described in Cadillac Desert, to divert 10–15 million acre-feet of Columbia River water to the Colorado River basin (and thence to Los Angeles); or various proposals to divert part of the Yellowstone River to Denver. Water, remember, flows uphill to money and power, so the fear of an out-of-state raid on Montana’s water is not without historical basis.

Here, the question is whether 85-2-311 applies to 20-ounce bottles of groundwater that may be sold outside of Montana. After it’s pumped out of the ground, the water will be filtered, sterilized with ultraviolet C, and sealed in small plastic bottles. To my mind, that makes it a value added product like beer or soda pop, although healthier. No one has ever seriously argued, or perhaps even argued, that shipping suds brewed in Montana to markets outside Montana is an out-of-state use of water. WFFF gets an “A” for legal bootstrapping, but I won’t be surprised if a court gives the argument the boot.

Whether or not WFFF’s legal theory prevails, litigating it could take years. If that happens, the true winners will be the water rights attorneys.