Flathead Lakers v. DNRC ( 2023 )

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C ". lit li di NO, 41 ..di Of 14 A 11 06/27/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0535
DA 21-0535
FLATHEAD LAKERS INC., a Montana Non-
profit Public benefit corporation, AMY J.
WALLER, STEVEN F. MOORE, CYNTHIA S.
EDSTROM, ADELE ZIMMERMAN, MARTIN ry L
FULSAAS, GAIL A. WATSON-FULSAAS,
LAUREL FULLERTON, ALAN COIT, JUN 2 7 2023
DEIRDRE COIT, and FRANK M. WOODS, Bowen G unviood
ClerK of E.,,L fame Court
State of Montana
Plaintiffs and Appellees,
WATER FOR FLATHEAD'S FUTURE,
ORDER
Intervenor and Appellee,
v.
MONTANA DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION,
Defendant and Appellant,
MONTANA ARTESIAN WATER COMPANY,
Defendant and Appellant.
Montana Artesian Water Company (Artesian) has filed a Petition for Rehearing of
this Court's Opinion entered May 16, 2023. See Flathead Lakers Inc. v. Mont. Dep't of
Nat. Res. & Conservation, 2023 MT 85, 412 Mont. 225. Water for Flathead's Future, Inc.,
et al. (collectively "Appellees") have filed an objection to the Petition.
This Court "will consider a petition for rehearing presented only upon [a showing]
[t]hat it overlooked some fact material to the decision; [t]hat it overlooked some question
presented by counsel that would have proven decisive to the case; or [t]hat its decision
conflicts with a statute or controlling decision not addressed by the supreme court." M. R.
App. P. 20(1)(a). "A petition for rehearing is not a forum in which to rehash arguments
made in the briefs and considered by the Court." State ex rel. Bullock v. Philip Morris,
Inc., 217 P.3d 475, 486, 2009 Mont. LEXIS 443 (citing M. R. App. P. 20(1)(a)). Having
reviewed the Petition and Appellees' response, we conclude that Artesian has not
demonstrated the existence any of the criteria, including an overlooked fact or a conflict
with controlling authority, which would warrant rehearing. M. R. App. P. 20(1)(a)(i)-(iii).
Artesian's contention that the Court erroneously characterized the subject well as
having been "pumped" for three months prior to the March 2015 aquifer test, when it was
instead merely allowed to "flow" during this time, does not undermine the materiality of
that fact. However termed, the salient point is that the quantity, duration, and timing of
this outflow raised questions concerning Artesian's aquifer test practices. Artesian also
contends that DNRC did consider other surface water rights and that its overlooking of the
Waller right was "an inconsequential and harmless error." However, several DNRC
officials testified that surface waters, such as Wallers', were not evaluated for legal
availability, in direct violation of Admin R. M. 36.12.1704. Artesian's remaining
contentions are either not material to our decision, or a re-hash of arguments addressed in
the opinion. Therefore,
IT IS ORDERED that the Petition for Rehearing is DENIED and DISMISSED.
The Clerk ofthe Supreme Court is directed to provide a copy of this Order to counsel
of record.
DATED thisa3- day of June, 2023.
Chief Jigtice
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ustices