A Butte judge has dismissed a contamination case against Atlantic Richfield Co. brought by nearly 100 residents of Opportunity more than five years ago.
The plaintiffs sought to have their properties cleaned of hazardous materials produced by the Anaconda Co.’s smelter, which closed in 1981. They contended the smelter operation damaged their property values while the Anaconda Co. profited greatly.
But District Judge Brad Newman ruled that the Opportunity residents knew that their properties were contaminated long before they filed the lawsuit and because of that they are barred from bringing suit against Atlantic Richfield Co., which purchased the Anaconda Co. in 1977.
Opportunity is located about 5 miles east of Anaconda, where the smelter was located.
Newman ruled that the plaintiffs’ claims are barred by statutes of limitations. Statutes of limitations ensure that wronged parties are given adequate time to sue, while at the same time it protects defendants from claims after a certain amount of time passes.
“We are surprised and disappointed with the ruling,” said Mark Kovacich, an attorney with the Great Falls firm Lewis, Slovak and Kovacich, who represents the Opportunity plaintiffs.
“We don’t think it’s consistent with Montana law. We intend to appeal the decision to the Montana Supreme Court.”
The case brought by the Opportunity residents was filed April 17, 2008. Judge Newman wrote that soil sampling has been available in the area since 2002, and that residential yards with arsenic levels above the EPA-mandated threshold have been remediated, including at least two of the properties owned by plaintiffs.
He also referred to historical litigation. Newman wrote that “farmers and ranchers sought damages and injunctive relief in 1905 on the grounds that smelter emissions, including arsenic, were harming their livestock downwind of the smelter” and that “the United States, too, brought suit against the Anaconda Company as far back as 1910 for alleged damage to trees on federally owned land in the vicinity of the Anaconda smelter.”
At least in the case of the ranchers, the Ninth Circuit Court of Appeals ruled in favor of the Anaconda Co.
In his decision, filed Monday, Judge Newman wrote that the plaintiffs’ claims are subject to a three-year statutory limitation. He wrote that the plaintiffs “cannot reasonably argue that they were unaware of some potential environmental damage to their respective properties until April 17, 2005 or thereafter.”
Newman added that the plaintiffs “concede the environmental degradation of their properties has not changed in decades.”
Kovacich said his office will file an appeal within a few weeks. But the Montana Supreme Court still must decide whether to hear the case, and there’s no time limit on when the court will hear case. The lawsuit could drag on for years.
“It’s always been a very important case,” Kovacich said. “The relief that we’re seeking is important to our clients and holding polluters accountable is an important objective and that’s what we’re trying to do here.
“Our focus is on doing the right thing for our clients. They, as we speak, are still sitting on contaminated property. Our primary goal in filing the lawsuit from day one is to accomplish meaningful cleanup, and unless we can reverse this ruling and have our day in court we don’t believe that will happen,’’ he said.
Numerous plaintiffs of the case were called by The Montana Standard on Tuesday for comment, but either declined to talk or could not be reached. Atlantic Richfield Co.’s attorney, Shannon Wells Stevenson of Denver-based Davis, Graham & Stubbs LLP, could not be reached for comment.
Reach Christensen at Kelley.firstname.lastname@example.org or 406-496-5572.