No injunction granted at hearing

Seeley Lake Sewer

MISSOULA – District Court Judge Karen Townsend stopped short of denying Don Larson’s motion for a preliminary injunction at a hearing Aug. 14. However, Townsend’s comments of “I didn’t get much out of this,” referring to Larson’s testimony and her refusal to allow Larson’s attorney Colleen Dowdall to call two additional witnesses to the stand doesn’t look favorable for Larson’s motion.

The Seeley Lake Sewer District Board’s Attorney Jon Beal made an initial motion to delay the hearing, arguing that he had been retained at 9:30 p.m. the previous night and could use more time to prepare.

Dowdell countered that Beal was on retainer for the district long before and she had been receiving communications from Beal regarding the injunction for at least a week. Beal replied that he is the business council for the District but he was not retained to defend the District against the lawsuit until the previous night.

Part of Larson’s request for an injunction was to prevent the board from moving forward to the point where the project cannot be reversed. Townsend asked if the sewer board could maintain the status quo if the hearing was delayed.

Beal argued that the district has ongoing operations and bills. If a preliminary injunction is granted, there is a risk that the district could lose approximately $9 million in grants.

Townsend denied the motion to delay and the hearing went on.

Larson took the stand and testified that he participated in the formation of the District in 1992 and that the boundaries were drawn to include the lowest income parts of town and exclude the parts with higher income. He said debt for the sewer was going to be laid on the poorest part of town and that the District didn’t have estimates for phases 2, 3 and 4. He said he was concerned with what would happen if the District moves forward and then funding for those phases wasn’t available.

Larson continued to testify that the water quality testing the District has done was flawed because the test wells were near businesses that could be individually polluting the groundwater. He argued that the town isn’t drinking contaminated water because the water supply is drawn from the opposite end of the lake.

After nearly a half hour of testimony from Larson, Beal asked Townsend to dismiss the motion for an injunction. He said Dowdell had the legal obligation to establish that Larson was going to be irreparably harmed by the District moving forward and that Larson was likely to win the case based on merit. Beal also argued that Dowdall must also establish that an injunction is not adverse to the public interest.

Beal continued that Larson was not an expert on several things he testified to and that Larson had no standing to testify about harm to anyone but himself.

Dowdall said she planned to call sewer district manager Greg Robertson and Missoula County Commissioner Jean Curtiss to the stand to finish making her case for the injunction. Beal argued that other witnesses can’t testify to harm that Larson has not testified to and they can’t testify that the injunction won’t harm the public.

Beal said that Larson does not speak for the community and this is not a class action lawsuit.

Townsend questioned if Dowdell thought an injunction wouldn’t cause harm to the public if the grants were lost. Townsend pointed out that during Larson’s testimony, he said grants were going to be harder to get in the future due to less funding at the state level.

Dowdell said she didn’t think the funding would go away permanently based on the history of this funding package. The District lost all their funding in 2016 after the public voted down a bond and then funding was restored just months later allowing the District to go through the Notice and Protest process.

Dowdell said testimony from Robertson and Curtiss would show how the funding could be lost and regained again.

Townsend said that even though the district may have some experience where grants were lost and then returned, she didn’t think Dowdell or anyone else could say that grants would be awarded in the future.

“It sounds to some degree like what we have here is someone [Larson] who is unhappy about being on the losing end of that notice and protest,” said Townsend.

Townsend disallowed Robertson and Curtiss to take the stand but wanted to read through a brief prepared by Beal ahead of making a decision on the injunction. If Townsend feels that there needs to be more testimony on the injunction, she will schedule a hearing and allow the defense to make their argument.

Townsend confirmed that there is no current injunction prohibiting the district from moving forward.

 

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