Christian v. Atl. Richfield Co.

380 Mont. 495

358 P.3d 131

2015 MT 255

Gregory A. CHRISTIAN ; Michelle D. Christian; Rosemary Choquette; Duane N. Colwell; Shirley A. Colwell; Franklin J. Cooney; Vicki Cooney; George Coward; Shirley Coward; Jack E. Datres; Sheila Dorscher; Viola Duffy, Bruce Duxbury; Joyce Duxbury; Bill Field ; Chris Field ; Andrew Gress and Frank Gress as Co–Personal Representatives of the Estate of James Gress; Charles Gustafson; Michael Hendrickson ; Patrice Hoolahan; Shaun Hoolahan; Ed Jones, Ruth Jones; Barbara Kelsey; Myrtle Koepplin; Brenda Krattiger; Doug Krattiger; Julie Latray; Leonard Mann; Valerie Mann ; Kristy McKay; Russ McKay, Bryce Meyer; Mildred Meyer; Judy Minnehan; Ted Minnehan; Diane Morse ; Richard Morse; Karen Mulcahy ; Patrick Mulcahy; Nancy Myers ; Serge Myers; Leslie Nelson; Ron Nelson; Jane Newell; John Newell ; George Niland ; Laurie Niland; David Ostrom; Rose Ann Ostrom; Judy Peters ; Tammy Peters ; Robert Phillips; Toni Phillips ; Carol Powers ; William D. Powers; Gary Raasakka; Malissa Raasakka; Alex Reid ; Kent Reisenauer; Peter Reisenauer ; Sue Reisenauer; Larry Rupp ; John A. Rusinski; Kathryn Rusiski; Emily Russ; Scott Russ; Carl Ryan; Penny Ryan; Rich Salle; Diane Salle; Dale Schafer ; David D. Schlosser; Ilona M. Schlosser; Michael Sevalstad; Jim Shafford; Rosemarie Silzly; Anthony Solan; Kevin Sorum ; Don Sparks; Vickie Spehar; Zane Spehar; Cara Svendsen; Caron Svendsen; James H. Svendsen, Sr.; James Svendsen, Jr.; Doug Violette; Ester Violette; Carol Walrod; Charles Walrod; Darlene Willey; Ken Yates ; Sharon Yates ; Linda Eggen as Personal Representative of the Estate of William Yelsa and as Guardian of Maurine Yelsa; David Zimmer ; and Toni Zimmer, Plaintiffs and Appellants

v.ATLANTIC RICHFIELD COMPANY, Defendant and Appellee.

No. DA 14–0015.

Supreme Court of Montana.

Argued Jan. 14, 2015.

Submitted Feb. 17, 2015.

Decided Sept. 1, 2015.

For Appellants: Mark M. Kovacich (argued), Tom L. Lewis, J. David Slovak, Lewis, Slovak & Kovacich, P.C., Great Falls, Montana, Monte D. Beck, Justin P. Stalpes, Lindsay C. Beck, Beck & Amsden, PLLC, Bozeman, Montana.

For Appellee: John P. Davis, Patrick M. Sullivan, Poore, Roth & Robinson, P.C., Butte, Montana, Shannon Wells Stevenson (argued), Jonathan W. Rauchway, Mark E. Champoux, James R. Henderson, David Graham & Stubbs LLP, Denver, Colorado.

Opinion

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 Appellants own properties in and around the town of Opportunity, Montana. Opportunity is a rural community a few miles east of a former copper smelter operated by the Anaconda Company. Appellee Atlantic Richfield Company (ARCO) is the successor in interest to the Anaconda Company. During smelting operations, which took place between 1884 and 1980, the smelter emitted smoke and fumes containing arsenic and other toxic materials. Particles of these materials settled on the surrounding lands. The area is now classified as a Superfund site. Appellants filed this action April 17, 2008, seeking damages for the cost of restoring their properties to their original state. ARCO moved for summary judgment on statute of limitations grounds, arguing that the conduct complained of ceased almost 30 years prior to the filing of the complaint. Appellants responded that the continued presence of contaminants on their property constitutes a continuing tort and falls within an exception to the statute of limitations. The District Court granted summary judgment in favor of ARCO on all claims, finding that Appellants' claims were barred by the statute of limitations. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 Appellants present the following issues for review:

1. Whether application of the continuing tort doctrine requires evidence of the continued migration of contaminants.

2. Whether genuine questions of material fact exist regarding the reasonableness of abating the contamination on Appellants' properties.

3. Whether the continuing tort doctrine applies to Appellants' claims other than nuisance and trespass.

4. Whether the facts constituting Appellants' claims were concealed or self-concealing, or whether ARCO took action preventing Appellants from learning those facts.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 The Anaconda Company¹ opened its first copper smelter in 1884, twenty-six miles west of the mining town of Butte. At the time of its opening, the Anaconda smelter was the largest in the area, with plans already underway to double its capacity. To house workers for this immense enterprise, the town of Anaconda was founded adjacent to the smelter works. A second smelter was completed in 1888, and the combined facility was capable of processing 6,000 tons of copper ore per day. In 1902, with the existing works already becoming obsolete, a new smelter was constructed with an eventual capacity of more than 8,000 tons per day.

¶ 4 Smelting copper ore involves the application of heat to break the chemical bonds between the desired copper and minerals in the surrounding rock, including sulfur, iron, and arsenic. Soon after operations began at the new works in 1902, nearby farmers and ranchers began to complain that arsenic released from the smelter was killing their livestock. The Anaconda Company paid for the damaged livestock and took remedial measures at the smelter. Individual smokestacks were replaced by a system of flues designed to let the smoke cool, allowing harmful particles to condense and settle to a fine dust, before being discharged through a single main stack. The height of the main stack was increased to 300 feet to allow the smoke to be discharged higher in the atmosphere, where any remaining harmful materials would be dissipated over a wider area.

¶ 5 The farmers' and ranchers' concerns about harm to their crops and livestock from arsenic deposited on their lands were not alleviated by these measures. In 1905, Fred Bliss, representing the Deer Lodge Valley Farmers' Association, filed suit against the Anaconda Company. The United States also filed suit regarding damage to federally-owned property caused by smelter emissions. As a result of negotiations stemming from that suit, a three-member commission was instituted to study the emissions problem and make recommendations for remedial action. Among other improvements, the “Smoke Commission” recommended construction of a new 585–foot main stack to propel emissions even higher into the atmosphere.

¶ 6 As part of the efforts to settle lawsuits brought by Bliss and others, the Anaconda Company obtained smoke and tailings easements allowing the deposition of smelter waste on the subject properties, including many of those now owned by Appellants. The Anaconda Company also purchased significant amounts of land near the smelter. On this land, the Anaconda Company set out to establish a rural housing community for smelter workers, called Opportunity. The Anaconda Company's aim in founding Opportunity was twofold: to attract stable, loyal, and reliable employees; and to quiet concerns about smelter emissions by showcasing a bucolic community situated directly beneath the plume. The Anaconda Company transferred the land that would become Opportunity to the Deer Lodge Valley Farms Company—run by Anaconda Company officers—with language in the deed reserving to the Anaconda Company an easement allowing the deposition of smelter waste on the land. The easement was then incorporated by reference into the deeds transferred to new Opportunity homeowners.

¶ 7 In 1977, the Anaconda Company was purchased by ARCO. The smelter ceased operations in 1980. The Anaconda Smelter Superfund Site was established in 1983 under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). All of Appellants' properties lie within the Superfund site, which covers an area of more than 300 square miles. The Environmental Protection Agency organized several public meetings as remediation plans were developed. The environmental contamination in the area was the subject of extensive newspaper coverage. Children in Anaconda provided urine samples to be tested for arsenic exposure. Soil and groundwater sampling and testing was conducted on many properties in Opportunity, including some of those owned by Appellants, beginning in 2002.

¶ 8 Appellants filed this action on April 17, 2008, stating causes of action for negligence, public nuisance, private nuisance, trespass, strict liability for the conduct of an abnormally dangerous activity, constructive fraud, unjust enrichment, and wrongful occupation of real property. Appellants sought damages for the full cost of restoring their properties to their original, uncontaminated state. On September 12, 2013, ARCO moved for summary judgment on all claims on the grounds they were barred by the applicable statutes of limitations. ARCO argued that Appellants had known about the possible contamination of their properties for years, if not decades, and thus could have brought suit earlier. ARCO also argued that Appellants' claims should not be considered continuing torts, because the contamination was not reasonably abatable and Appellants had produced no evidence that it continued to migrate. Moreover, ARCO claimed the continuing tort doctrine was applicable only to claims for trespass and nuisance, and could not save Appellants' remaining claims from the statute of limitations.

¶ 9 In response, Appellants argued that ARCO had previously represented that Opportunity was free of contamination, preventing Appellants from investigating the actual extent of harm to their properties. Appellants further argued that the migration of contaminants is not required to establish a continuing tort, and that remediation plans proposed by their experts demonstrated that the contamination could be reasonably abated. Finally, Appellants argued that the continuing tort doctrine could be applied to their claims of negligence, strict liability, wrongful occupation, and unjust...