Amicus Curiae Brief — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.

Supreme Court briefAug 28, 2019

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No. 17-1498

IN T H E

Supreme Court of the United States

ATLANTIC RICHFIELD COMPANY,

Petitioner,

GREGORY A. CHRISTIAN, ET AL.,

Respondents.

On Writ of Certiorari

to the Supreme Court of Montana

BRIEF OF TREASURE STATE RESOURCES

ASSOCIATION OF MONTANA, MONTANA

MINING ASSOCIATION, MONTANA

PETROLEUM ASSOCIATION AND THE

MONTANA CHAMBER OF COMMERCE AS

AMICI CURIAE IN SUPPORT OF PETITIONER

KYLE ANNE GRAY

Counsel of Record

WILLIAM W. MERCER

BRIANNE C. MCCLAFFERTY

HOLLAND & HART LLP

401 N. 31st St., Ste. 1500

Billings, MT 59101

(406) 252-2166

kgray@hollandhart.com

Counsel for Amici Curiae

August 28, 2019

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

INTERESTS OF AMICI CURIAE ..............................1

SUMMARY OF THE ARGUMENT ............................4

ARGUMENT ...............................................................6

A. What’s Past is Prologue. ................................6

B. Superfund and Mining. ................................ 15

C. Superfund and Sunburst. ............................ 27

D. Certainty, Consistency, Community BuyIn and Finality are Essential to Industry. .. 31

CONCLUSION .......................................................... 34

TABLE OF AUTHORITIES

Cases

Page(s)

Bliss v. Anaconda Copper Min. Co.,

167 F. 342 (D. Mont. 1909) ............................. passim

Bliss v. Washoe Copper Co.,

186 F. 789 (9th Cir. 1911) ....................................... 9

Bliss v. Washoe Copper Co.,

231 U.S. 764 (1913)................................................ 12

Cadillac Fairview/California, Inc. v. Dow

Chemical Co., 299 F.3d 1019 (9th Cir. 2002) ........ 25

Chevron Mining v. United States,

863 F.3d 1261 (10th Cir. 2017) ............................. 25

Christian v. Atlantic Richfield Co. (Christian I),

356 P.3d 131 (Mont. 2015)......................... 12, 13, 28

Kipp v. Davis-Daly Copper Co.,

110 P. 237 (Mont. 1910)............................. 11, 12, 22

Sunburst School District v. Texaco, Inc.,

165 P.3d 1079 (Mont. 2007)................. 27, 29, 30, 31

Pakootas v. Teck Cominco Metals, Ltd.,

646 F.3d 1214 (9th Cir. 2011) ............................... 27

Penn Central Corp. v. United States,

862 F. Supp. 437 (Reg’l Rail Reorg. Ct. 1994) ...... 24

United States v. Gratiot,

39 U.S. 526 (1840)............................................ 15, 16

Statutes

30 U.S.C. § 22, et seq., General Mining Law

(1872)

........................................................................ passim

42 U.S.C. § 101, et seq., Comprehensive

Environmental Response, Compensation,

and Liability Act (CERCLA)(1980) ............... passim

iii

P.L. 99-499, Superfund Amendments and

Reauthorization Act (1986) ................................... 26

49 Stat. 1363, An Act to provide for rural

electrification and other purposes (1936) ................ 8

26 Stat. 289, Sherman Silver Purchase Act

(1890) ................................................................ 16, 17

20 Stat. 289, Bland-Allison Act (1878) .................... 16

40 C.F.R. § 300.430(c)(2) ........................................... 32

40 C.F.R. § 300.430(f)(2) ........................................... 32

40 C.F.R. § 300.430(f)(3) ........................................... 32

Books

Georgious Agricola, De Re Metallica (1556),

(translation by Herbert and Lou Henry Hoover) (1912) ............................................................. 26

Michael Basso, Meet Joe Copper: Masculinity

& Race in Montana’s World War II Home

Front (2013) ......................................................... 7, 8

Rachel Carson, Silent Spring (1962) ....................... 17

Robert Cuff, The War Industries Board: Business-Government Relations During World

War I (1973) ............................................................. 8

Bill Dedman, Empty Mansions: The Mysterious Life of Huguette Clark and the Spending

of a Great American Fortune (2014)........................ 7

L.P. Hartley, The Go-Between (1953) ...................... 17

Adam Hochschild, To End All Wars: A Story of

Loyalty and Rebellion, 1914-1918 (2011)................ 8

William Kitteridge & Annick Smith, The Last

Best Place: A Montana Anthology (1990) ................ 1

John Leshy, The Mining Law: A Study in Perpetual Motion (1987) ....................................... passim

Michael Malone, The Battle for Butte: Mining

and Politics on the Northern Frontier, 18641906 (1981) ..................................................... 6, 7, 16

Bode Morin, The Legacy of American Copper

Smelting: Industrial Heritage versus Environmental Policy (2013) ....................... 13, 14, 15, 21

Michael Punke, Fire and Brimstone: The

North Butte Mining Disaster of 1917 (2006) . 1, 8, 9

Other Authorities

Bonner Milltown History Center, The Great

Flood of 1908 .......................................................... 20

Deuteronomy 8:7-9 ................................................... 26

Vince Devlin, Last Call for Libby as EPA Discusses its Preferred Final Asbestos Remedy,

Missoulian (May 21, 2015) ................................... 34

EPA, Anaconda Co. Smelter Site ............................. 21

EPA, Libby Asbestos Site ......................................... 21

EPA, Milltown Reservoir Sediments Superfund

Site ......................................................................... 22

EPA, Silver Bow Creek/Butte Area Superfund

Site ......................................................................... 22

EPA, Superfund Sites in Region 8 ........................... 20

EPA, Superfund Sites Where You Live .................... 19

George Everett, The Captain Who Fought

World War I in Butte, Montana .............................. 8

Findings & Recommendations of U.S. Magistrate Judge (F&R), United States v. Atlantic

Richfield Co., CV-89-39-BU-SEH

(D. Mont. Oct. 7, 1998) ...................... 13, 14, 15, 24

George Gale, Montana School of Mines Mineral Dressing Pilot Plant Laboratory Survey

(Master’s Thesis, Montana School of Mines)

(May 1947) ............................................................ 23

Genesis 4:22 .............................................................. 26

Richard Gibson, Mining City History: Floods of

the Past, Part II, Montana Standard (Feb.

18, 2019) ................................................................ 20

Job 28:2-11 .................................................................. 1

David McCullough, Address to Wesleyan University Graduating Class (June 4, 1984) ............... 6

Montana.gov Official State Website, About

Montana ................................................................... 1

Mont. Dep’t of Envtl. Quality, Texaco Sunburst Works Refinery ............................................ 30

Mont. Dep’t of Justice, Natural Resource

Damage Program Consent Decrees ...................... 22

Montana State School of Mines, Seventeenth

Annual Catalogue for 1916-1917 (1916) .............. 23

Matt Volz, Montana Landowners Say Government Botched Arsenic Cleanup, U.S.

News (Feb. 24, 2017) ....................................... 27, 28

Arthur Wells, Report of the Anaconda Smelter

Smoke Commission, Oct.1, 1920, National

Archives (Record Group 70, Box 278) ....... 13, 14, 21

Eric Whitney, EPA Presents Health Risk Assessment in Libby, Montana Public Radio

(Dec. 10, 2014) ....................................................... 34

INTERESTS OF AMICI CURIAE1

The Treasure State. This “official nickname” of

the State of Montana is based not on some kind of

buried pirate treasure dreamed up by Robert Louis

Stevenson, or on other flights of fancy, but on history

and the “hard rock” reality of copper and other

“treasures” dug up from below, and processed above,

in the lands of the American West.2 Montana, like

many other western states, was built on mining and

mineral processing from its Territorial days through

the U.S. Civil War, through two World Wars and the

Cold War when copper was king, and still produces

minerals today.

The federal government has long played a role as

well. Encouraging and fostering first the mining and

processing of gold and silver – the “Oro y Plata” of

Montana’s Great Seal – with the 1872 Mining Act

and silver purchasing acts, then copper and other

minerals with electricity, communication and war

time requirements. A century later, came, inter alia,

the Clean Water Act, the Resource Conservation and

Pursuant to this Court’s Rule 37.3(a), counsel of record for all

parties have consented to the filing of this brief. No counsel for

a party authored this brief, in whole or in part, and no person

other than amici or their counsel made a monetary contribution

to this brief’s preparation or submission.

See Montana.gov Official State Website, About Montana,

http://www.mt.gov. See also William Kitteridge & Annick

Smith, The Last Best Place: A Montana Anthology (1990); Michael Punke, Fire and Brimstone: The North Butte Mining Disaster of 1917 (2006); John D. Leshy, The Mining Law: A Study

in Perpetual Motion (1987). See also Job 28:2-11 (“copper is

smelted from rocks … where food grows on top of the earth,

[but] searching for ore [man] sinks a shaft far from where people reside; below, there … in the stones is sapphire, and the

dust contains gold”).

Recovery Act, and the federal statute at issue here:

the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). All of this is

part of the complicated national equation that is

Montana and the American West. As part of this diversity, historically and today, these Montana amici

fear that the Montana Supreme Court decision at issue here is poised, as Petitioner asserts, to throw

CERCLA’s national policy – which delicately balances community, business and individual interests –

“into chaos.” Accordingly, amici ask this Court to reverse the Montana court’s dangerous misinterpretation and misapplication of CERCLA.

Amicus Treasure State Resources Association of

Montana (TSRA), a non-profit voluntary trade association, brings together diverse industry, labor, agricultural and recreation groups to work together on

issues that affect land use and resource development

in Montana. TSRA’s members include mining and

mineral production companies, transportation companies, unions, energy companies, water users and

others (including PRPs at some of the 17 Superfund

sites in Montana), all vitally interested in the consistency, certainty, finality and ability to plan for

risk provided by CERCLA, a comprehensive federal

environmental scheme that precludes and preempts

state-law tort claims that conflict and interfere with

federal cleanups and the federal statute’s rules, requirements and protections. As a part of their vital

communities, the members of TSRA are also concerned that the decision below, which misreads and

wrongly refuses to apply CERCLA’s jurisdictional

and litigation limits will – unless reversed by this

Court – result in community discord, and the very

type of chaos and inconsistency that is the bane of its

members’ ability to function and prosper in the

communities where their employees and their families live, work and play.

Founded in 1919, amicus Montana Mining Association (MMA) is a non-profit voluntary trade association comprised of members from every sector of the

mining industry in Montana. Producing members

mine and/or beneficiate crucial minerals used in

manufacturing, medicine, construction, agriculture

and other endeavors. These minerals include copper,

garnets, gold, lime, manganese, molybdenum, nickel,

palladium, platinum, silver, talc and zinc. MMA’s

purpose is to be an advocate for its members, who as

important contributors to the state’s economic fabric

dating back to Montana’s Territorial days, help provide the necessary materials today for our everyday

lives, along with affording countless Montana families and graduates from local universities the opportunity to prosper from well-paying employment. One

of MMA’s primary functions is to share the compelling story of the industry’s history in Montana and

the American West, a perspective that is often left

unsaid and unheard today, and which, as amicus,

MMA can bring to the attention of the Court.

Amicus Montana Petroleum Association (MPA)

represents another sector of the mineral industry in

Montana, i.e., members who explore and produce oil

and natural gas, who operate pipelines, and who refine petroleum products. A non-profit focused on

maintaining a positive business climate in Montana

for its members, MPA shares the concerns of its fellow voluntary trade associations that the decision of

the Montana Supreme Court allowing tort claims to

interfere with and supersede remedial actions carried out under the orders and auspices of a federal

regulatory agency like EPA, is a recipe for disaster

for business, including the petroleum industry.

The Montana Chamber of Commerce (MCC) often serves as amicus curiae in a wide variety of cases

involving business in Montana, sometimes in tandem

with the national Chamber of Commerce, which is

also an amicus curiae in this matter. Like its coamici, MCC is a voluntary, non-profit trade association. MCC champions economic development and a

favorable business climate in the Treasure State on

behalf of its over 750 members. MCC, too, sees the

decision of the Montana Supreme Court as a disaster

for industry and the state’s economy as a whole, and

as plainly wrong under the controlling federal law.

MCC joins its fellow Montana trade associations in

asking this Court to reverse the decision below.

SUMMARY OF THE ARGUMENT

CERCLA is hardly a darling of industry, and certainly not of amici’s members. In fact, the broadly

encompassing statute with its disconcerting reach

backwards into a past of entirely different environmental norms, often frustrates and irritates industry. However, CERCLA’s saving grace, indeed the

reason that “comprehensive” is the law’s first name,

is that its various provisions provide protections to

parties swept within its reach, both during and after

the “one coordinated cleanup” that Congress has

mandated, and do not allow trial lawyers or a jury to

“second guess” EPA’s response actions. U.S. Brief to

Mont. Sup. Ct., Pet. App. 74a; U.S. Invitation Br.,

p.12. Indeed: Certainty, consistency, predictability

for risk-planning, and finality, without them business cannot function, much less thrive.

Likewise, the community involvement mandated

by CERCLA, and fostered by EPA, is part and parcel

of what makes this delicate balance work, and what

has made it work in the past. Whether the remedy

for cleaning up the remains of the Nation’s prior century of mineral production and other industrial outputs is performed under a consent decree or an administrative order, the key to CERCLA is that there

will be one comprehensive remedy designed and carried out with community involvement throughout the

long and complex process. As the United States explained in its amicus brief, below, “the main incentive for a responsible party to enter into a CERCLA

consent decree with the United States is to fix the

party’s cleanup obligations.” Pet. App. 74a.

Contrary to CERCLA’s plain terms, and the interpretation of those terms by the federal circuit

courts, the decision of the Montana Supreme Court

allows individual private party landowners to sue for

“restoration” money damages while cleanup is ongoing at a Superfund Site, and then requires every

penny awarded by the jury to be spent on a different

cleanup plan to “restore” that same site after it has

already been remediated. Pet. App. 13a. Soil already cleaned and capped? Dig it up. Waste disposed and contained? Move it elsewhere, possibly

contaminating the lands (and lungs) of plaintiffs’

neighbors. Clean water for domestic use? Install

underground barriers and inject enzymes that may

make the water unsafe to drink for the community as

a whole. As Petitioner so aptly put it, this is “the

very definition of madness.” Pet. 4.

Congress decided that EPA (with community input) not juries, selects remedies for hazardous

wastes subject to CERCLA, and that individual

PRPs (including current landowners like the Respondents here) cannot engage in individual conduct

contrary to EPA’s selected, in-progress remedy. Particularly given the long national (indeed, international) history of this site, and of the mining industry

in Montana and the American West as a whole, federal control over contrary state-level, jury-imposed,

remedies must be upheld.

The opinion below reverses the mandate of Congress that a single, coordinated cleanup properly selected and supervised by EPA, with community outreach and input, is the appropriate solution to remedy a past manmade hazardous waste mess. The appropriate solution to remedy this present judge-made

legal mess is mandated by the Constitution: a writ of

certiorari from this Court to the Montana Supreme

Court requiring it to uphold CERCLA as “the supreme law of the land.” The decision below should be

reversed.

ARGUMENT

A. What’s Past is Prologue.

In its brief, Petitioner explains how Atlantic

Richfield Company has worked cooperatively with

EPA at Montana Superfund sites for over 36 years.

Pet. Br. 4-5. For the waste at issue here, 36 years is

recent history, as is Atlantic Richfield’s involvement

with it. Eminent historian David McCullough once

instructed a class of college seniors eager to head out

into the world, that “[h]istory is who we are and why

we are the way we are.”3 With that context in mind,

as explained in these amici’s petition-stage brief, a

better place to start this story, then, might be in

1864, when early prospectors in Montana’s Summit

Valley discovered “the richest hill on earth.”4

David McCullough, Address to Wesleyan University Graduating Class (June 4, 1984).

Michael Malone, The Battle for Butte: Mining and Politics on

the Northern Frontier, 1864-1906, at 4, 34 (1981) (“The mineralized outcrops ran profusely from the brow of the hill” down to

Or in 1882, when excavations by Marcus Daly

(one of Butte’s “Copper Kings”) uncovered on the

Butte hill “the largest deposit of copper sulphide that

the world had ever seen,” copper that over the coming century would be smelted in the yet-to-beconstructed Washoe Smelter in the yet-to-be-founded

city of Anaconda, about 21 miles to the northwest of

Butte. The smoke from that smelter, built and operated by the Anaconda Copper Mining Company (a

corporate predecessor of Petitioner), would waft over

the Deer Lodge Valley, leaving behind the waste at

issue in this lawsuit. But the smelter’s product—

refined copper, zinc and manganese—would not only

result in riches for some, but would, among other

things, electrify the nation and help win two world

wars.5

In World War I, the metals from Butte and Anaconda were so critical to the war effort that the United States sent troops (commanded by then Captain

Omar Bradley) to ensure the mines and smelter

would keep running despite massive labor unrest,

producing copper at an astonishing clip pushed by

the federal War Industries Board. The government

knew no copper literally meant no bullets and other

key munitions. It was fresh American troops, armed

the flats “where mineralization caused a lack of vegetation and

where the earth bore unmistakable signs of a metal presence:

green and blue carbonates of copper, the rusty brown discoloration of iron, the brown and black stains of zinc and manganese,”

and over to “conspicuous quartz-ledges rising prominently

above the surface, [with] obvious metal content”).

Id. at 28, 34-35; see also Bill Dedman, Empty Mansions: The

Mysterious Life of Huguette Clark and the Spending of a Great

American Fortune (2014); Michael Basso, Meet Joe Copper:

Masculinity & Race in Montana’s World War II Home Front

(2013).

with munitions made from Anaconda copper, who

eventually brought the “War to End All Wars” to a

close.6

Of course, all wars did not end then, nor did the

crucial need for copper and other Anaconda products.

Between World War I and World War II, the nation

prospered in the “boom” of the 1920s, and suffered

through the Great Depression of the 1930s. By the

end of the 1920s, most cities were connected with

electric, telegraph and telephone wires (made with

Anaconda copper). In the 1930s, national policy

turned its focus on rural America. With, inter alia,

the enactment in 1936 of the Rural Electrification

and Communications Act, the Anaconda smelter kept

smelting.7

By the 1940s, with the arrival of a second World

War, Anaconda’s smelted products were “use[d] in

critical components of airplanes, ships, tanks, bomb

sights, ammunition, and an astonishing range of

other types of equipment.”8 In short, the Butte ores

and the Anaconda smelter were crucial to the United

States becoming “the arsenal of democracy.”9 When

America entered World War II, the federal War Production Board (WPB) put copper in an “urgency ratSee, e.g., Punke, supra note 1 at 215-16; George Everett, The

Captain Who Fought World War I in Butte, Montana,

http://www.butteamerica.com/brad.htm; Robert Cuff, The War

Industries Board: Business-Government Relations During World

War I (1973); and generally, Adam Hochschild, To End All

Wars: A Story of Loyalty and Rebellion, 1914-1918 (2011).

An Act to provide for rural electrification and other purposes,

49 Stat. 1363.

Basso, supra note 5, at 5.

Id., and Punke, supra note 1, at 265.

ing band” higher than anything except the Manhattan Projects.10

Copper production was so important to the war

effort that Butte workers who would otherwise have

been drafted received deferments or were furloughed

to the mines and smelter, and were required to work

there, in lieu of serving in the military, as “soldiers of

production.” The WPB successfully pushed Anaconda to a 400% increase in copper production by 1943,

about one-third of the total supply of primary copper

then available in the United States, and throughout

the war the Anaconda smelter, as required by the

WPB and the needs of the nation and the free world,

kept sending out its smoke.11

But, as amici explained in their petition-stage

brief, because they had filed a brief in a court of law,

the best place to start a brief about mining waste

and CERCLA seemed to be not with war and peace,

but with a legal opinion in an early 20th century

lawsuit. That lawsuit reached all the way to this

Court, and was all about the very property at issue

here again, over a century later, in 2019.

In 1911, three years before the start of World

War I, the Ninth Circuit Court of Appeals decided a

case it considered of such “importance” it “directed

that [its] mandate be stayed for six months to enable

the appellant to apply to the Supreme Court for a

writ of certiorari should he so desire.” Bliss v.

Washoe Copper Co., 186 F. 789, 828 (9th Cir. 1911).

The case was straightforward—in 1909, Fred Bliss,

representing an association of other farmers in the

Deer Lodge Valley, sued to enjoin the operation of

10 See, e.g., id. at vii, 125-30, 178-88, 233.

11 Id.

Anaconda’s new Washoe smelter because arsenic and

other particulates in the smelter’s smoke were harming their crops and land. Bliss v. Anaconda Copper

Min. Co., 167 F. 342, 372 (D. Mont. 1909).

In this era, fifty years before Rachel Carson, the

outcome was perhaps not surprising. The Ninth Circuit affirmed the district court, which had denied the

requested injunction, declining to close the smelter

down. Commenting that the smelter owners “were

ready to treat with [Bliss] and other landowners, and

were willing to buy his land, and consider claims of

injury,” the injunction was an “ultimatum” that the

district court rejected. Bliss, 167 F. at 372.

To order such an injunction, the district court

ruled, would cause a greater harm: “Practically the

whole population of Butte depends upon the continued operation of the copper mines [and] the effect of

stopping the [smelter] works” would essentially

bankrupt the state. Id. at 363-64. In other words,

directly contrary to what the Montana Supreme

Court would hold in the case at issue now, the federal court in 1909 refused to countenance a remedy

that would cost far more than the land (the very

same land at issue here) was worth.

The Bliss court explained it could not “overlook

the historical fact that Congress, through its beneficent legislation, invited the exploitation of the Rocky

Mountains by prospectors for the precious metals,”

which turned what “was a wilderness less than half a

century ago[,] principally through the development of

mineral wealth[,] into a scene of energy and restless

activity.” Id., 167 F. at 369-70. The court expounded:

“In this forward movement defendants joined by the

erection of their smelter [and] its operations have

been a significant force toward the material devel-

opment and upbuilding of the state of Montana, including the valley where complainants’ lands are located.” Id. at 370.

The district court held that “the business of copper smelting” is lawful even though by “its conduct,

some injury to others in the immediate vicinity of the

smelter would seem to be unavoidable because of the

arsenic in the smoke.” Id. Concluding that shutting

down the smelter would result, inter alia, in “the industry of smelting copper sulphide ores [being] driven from the state, and that values of many kinds of

property will either be practically destroyed or seriously affected,” the court held as follows:

“[D]iscretion, wisely, imperatively guided by the spirit of justice, does not demand that injunction, as

prayed for, should be granted.” Id.

The state cheered. A year later, the Montana

Supreme Court would uphold wide-ranging eminent

domain powers for the mining industry, including

the right to take private property for “dumping places for working mines, mills or smelters for the reduction of ores.” Kipp v. Davis-Daly Copper Co., 110 P.

237, 240 (Mont. 1910). The court explained:

The prosperity of the state has been due, in

large measure, to [the mining industry], and

many of our other industries and business

enterprises are entirely dependent on it. This

is especially true in Butte and its immediate

vicinity, because there the great mass of its

people gain their livelihood from their

employment in the mines and reduction of

ores. There, as in many other localities, the

mineral deposits are the only available

natural resources, and but for the promise

which they give of profitable return for welldirected investment and industry, such

portions of our state would be almost entirely

destitute of population, whereas they now

furnish homes and the means of support for

populous communities.

Hence, from the

beginning it has been the policy of the state,

indicated by its constitutional and statute

law, as interpreted by this court, to foster and

encourage the development of this state’s

mineral resources in every reasonable way.

Id. at 240-41.

The Ninth Circuit affirmed the denial of Fred

Bliss’ injunction in 1911, and in 1913, this Court

dismissed his certiorari petition. See Bliss v. Washoe

Copper Co., 231 U.S. 764 (1913). Thereafter, Anaconda bought out many of the Bliss suit farmers, and

obtained so-called “smoke and tailings” easements

from the rest that “allow[ed] the [continuing] deposition of smelter waste on the land.”12 Anaconda then

established Opportunity as a rural housing community for smelter workers on the lands Anaconda had

purchased from the farmers. 13

As recognized by the Montana Supreme Court in

the case at issue here, the real property owned by today’s plaintiffs, the very same property at issue in

Bliss, was transferred to their predecessors-in-title

by recorded deeds with covenants identifying the

smelter waste.14 And, as noted above, the deeds all

contained “smoke and tailings easements,” resolving—so the Company thought—any remaining prob-

12 Christian v. Atlantic Richfield Co. (Christian I), 356 P.3d 131,

137-38 (Mont. 2015).

13 Id.

14 Id.

lems it had, or would ever have, with private landowners in the Deer Lodge Valley.15

The federal government also took legal action in

this era. One year after Bliss was filed, in 1910, the

United States sued Anaconda for, inter alia, smelter

damage to trees on federal government forest lands

in the Deer Lodge Valley, and tailings released into

streams. Recognizing the importance of the smelter’s products, the conservationist administration of

President Theodore Roosevelt was not looking to

shut the smelter down. Instead, the government

stayed its lawsuit early on, stipulating with Anaconda to the formation of a Board of Experts—often

called “the Anaconda Smoke Commission”—to ascertain the best technology to make smelter operations

less harmful to land, trees and water, obtaining the

Company’s agreement, inter alia, to implement the

Board’s recommendations for reducing and eventually eliminating hazardous particulates from the

smoke.16

This lawsuit led, among other things, to Anaconda constructing a series of tailings ponds (including

what is now the Warm Springs Ponds Wildlife Management Area managed by the state), building a new

585-foot smokestack (the tallest in the world, then,

taller than the Washington Monument, now a state

park), and installing new technology to reduce and

15 Christian I, 356 P.3d 137-38.

See also Bode Morin, The Legacy of American Copper Smelting: Industrial Heritage versus Environmental Policy, at 117-18 (2013).

16 Morin

at 117-118; Arthur Wells, Report of the Anaconda

Smelter Smoke Commission, Oct.1, 1920, National Archives

(Record Group 70, Box 278). See also Findings & Recommendations of U.S. Magistrate Judge (F&R), United States v. Atlantic

Richfield Co., CV-89-39-BU-SEH (D. Mont. Oct. 7, 1998).

capture the hazardous particulates in the smoke. In

particular, Anaconda invested millions in purchasing

and installing “cutting edge” electrostatic precipitators invented by an early 20th century high tech genius, Frederick Cottrell. The precipitators removed

most of the arsenic from the smoke, and other devices turned sulfur dioxide into sulfuric acid, which

when mixed with phosphorous became high tech,

cutting edge fertilizer for the farmers who had once

sued to shut down the smelter.17

The United States and Anaconda also engaged in

a series of land exchanges signed off on by then Attorney General (later Supreme Court Justice) Harlan

Stone—with Anaconda deeding healthy forest lands

outside the smoke zone to the United States in return for smoke damaged forest lands inside the smelter’s smoke zone.18 Thus, the United States received

market value compensation for smelter injuries to

federal lands, just as the Bliss farmers (and Opportunity residents) did for their private lands.

By 1920, two years after the end of World War I,

the Board of Experts concluded Anaconda had done

all that could be asked of it in terms of technological

fixes, and should continue to operate its smelter.19

After all, wars needed to be won, and they couldn’t

be won without copper, just as copper was essential

to telephone and electricity lines. In 1933, ten days

after the Secretary of Agriculture signed off on the

last land exchange, the federal government’s lawsuit

was dropped, recorded by the clerk of court in the

17 Morin at 62-63, 117, and Wells, supra note 14.

18 Id., and Morin at 117-18; F&R at 5.

19 Morin at 118; Wells, supra note 14.

District of Montana as “abandoned.”20 Here, again,

Anaconda thought it had resolved any and all disputes with the United States related to its smelter

operations. That belief would hold true for another

half century, until Anaconda was purchased by Atlantic Richfield in 1977, and later merged into it in

1981, leaving Petitioner as Anaconda’s sole corporate

successor.

B. Superfund and Mining.

In its decision in Bliss, supra, declining to shut

down the smelter in Anaconda in 1909, the district

court relied, in part, on “the historical fact that Congress, through its beneficent legislation, invited the

exploitation of the Rocky Mountains by prospectors

for the precious metals,” 167 F. at 369-70 (emphasis

added). This “beneficent legislation” was the General Mining Law of 1872, with some amendments

still the law today; described by eminent professor of

law, and former United States Solicitor of the Interior, John Leshy, as “one of the most durable perpetual

motion machines ever assembled."21

Perhaps not surprisingly, the first foray of the

U.S. Congress into mining issues, i.e., the 1824 adoption of a type of leasing system for the mining of lead

on federal lands near Galena, Illinois, was driven by

the strategic need of lead for the bullets of that era.22

This Court addressed that mineral lands policy in

United States v. Gratiot, 39 U.S. 526 (1840), and

“laid the constitutional foundation for Congress’

20 F&R at 5, Morin at 118.

21 See

30 U.S.C. §§ 21-43 (codification of the General Mining

Law of 1872); Leshy, supra note 1, at 2.

Leshy at 9.

power to lease (and, implicitly to retain title to) federal resources found within borders of duly admitted

sovereign states.”23

After Gratiot, leasing of federal mineral lands

fell by the wayside in favor of a developing policy of

“free access” to mineral lands in the west.24 In a

nutshell, the General Mining Law of 1872 (and its

predecessor in 1866) set up a system whereby any

American citizen (or anyone who intended to become

an American citizen) could stake a “mining claim” on

the vast federal lands of the public domain, explore

for minerals, and if “discovered” dig them up, sell the

ore or process it, and later get a land patent from the

United States to become a mine owner.25 And that is

precisely what Americans did, including gold and silver “barons” in California, Colorado, Idaho, Nevada,

Utah and Montana, and the “Copper Kings” in

Butte.26

During the gold and silver rush era, pushed by

the politics of the time, Congress enacted laws that

required the U.S. Treasury to purchase large

amounts of silver, mostly from mines and miners in

the west, inter alia, to put more liquidity into the national economy for the individual entrepreneurs and

small businesses who sold their goods for the smaller

amounts of money represented by silver coinage. 27

Id.

Id. at 10-22.

25 Leshy at 17-23.

26 Malone, supra note 2, passim.

27 The 1878 Bland-Allison Act mandated that the Treasury De-

partment purchase “not less than two million dollars’ worth” of

silver bullion “per month.” 20 Stat. 289. The 1890 Sherman

Silver Purchase Act increased this federal purchasing require-

Much of this early mining activity occurred on land

owned by the United States, which would not be patented out to private owners until later.28

That the 1872 Mining Law and the earlier creation of Yellowstone National Park came from the

same Congress, only two months apart, bears witness to the conflicting interests of the time.29 Just

over a century later, the consequences of this second

decision by Congress in 1872, would run head first

into another law, passed by another Congress; i.e.,

CERCLA in 1980. Discussing this (then) recent law,

in 1987 Professor Leshy noted that Aspen, Colorado

and Park City, Utah were just “two of several western mining towns turned ski resort … facing the possibility that large tracts of land within their borders,

occupied by such things as a shopping mall, homes,

businesses, and condominiums, will be placed on the

national priority cleanup list because of their former

use as waste disposal sites for now-abandoned silver

mines.”30

Indeed, by 1980, following the publication in

1962 of Rachel Carson’s Silent Spring, things had

begun to change in what had seemed, just a few

years before, to be a settled landscape. As the economy evolved and the modern-era environmental conscience emerged, Americans began to take to heart

L.P. Hartley’s witticism: “The past is a foreign country; they do things differently there.”31 Congress

ment, instructing the Treasury Department that it must buy

“four million five hundred thousand ounces of silver” in “each

month.” 26 Stat. 289.

28 See, e.g., Leshy, supra, note 1 at 188.

29 Leshy at 12.

30 Leshy, supra note 1, at 188.

31 L.P. Hartley, The Go-Between (1953).

passed a series of regulatory environmental laws, including the Clean Air Act and the Clean Water Act.

Then, in a watershed event, Congress sought to remediate the effects of earlier industrial practices

through the enactment of CERCLA in December

1980.32 Petitioner would soon learn that many of the

understandings and agreements from the “foreign

country” of the past would not survive this new

world.

The minerals business changed along with the

times. The Anaconda smelter closed in 1980, a few

months before CERCLA became law. Although the

Superfund statute was enacted, in large part, to deal

with chemical waste sites like Love Canal, in the

western United States it has been used mostly—and

most expensively—at old mining and mineral processing sites. Pet. 35. This is true across the American West, where the Nation’s mineral wealth was

discovered and developed under the auspices of the

1872 Mining Law.

Montana is far from the only state with a mining

nickname and complicated mining legacy. As noted

by Professor Leshy, California “is the Golden State,

Nevada the Silver State, Montana the Treasure

State, and Idaho the Gem State,” and “the 49ers and

the Nuggets” play in the NFL and NBA today.33 A

simple review of EPA’s Superfund site lists for Colorado, Nevada, Idaho, California New Mexico and

32 The Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA), 42 U.S.C. §§ 9601, et seq. (Dec. 11,

1980).

33 Leshy, supra, note 1 at 3.

Utah tells the more complicated side of this story. 34

Many of these sites are on the National Priorities

List precisely because they pose extremely complex

problems left behind by the legacy of the Nation’s

mining history.

Of the 17 Superfund sites that currently cover

the map of Montana, nearly all involve wastes related to old mining or mineral processing activities:

The name of the “ACM Smelter and Refinery” Superfund site in Great Falls (north central Montana) says

it all, as do the names of these others: Anaconda

Aluminum Co. Columbia Falls Reduction Plant

(northwestern Montana); Baker Hughesville Mining

District (north central Montana); Basin Mining Area

(central Montana); Carpenter Snow Creek Mining

District (south central Montana). The mining and

mineral processing origins of other Montana Superfund sites are somewhat disguised: East Helena Site

(old lead smelter) (central Montana), Flat Creek

IMM (old silver, gold and lead mines, near Superior)

(northwest Montana); Milltown Reservoir sediments

(river sediments from Butte mining and mineral processing, near Missoula) (central west Montana); Libby Asbestos (vermiculite mine) (northwest Montana),

Lockwood Solvents (chemicals manufactured, near

Billings, for use by the mining industry) (southeast

Montana); Mouat Industries (old chromite treatment

facility in Columbus) (south central Montana); Upper

Tenmile Creek (old gold, lead and zinc mines near

Helena) (central Montana). And, of course, the sites

34 https://www.epa.gov/superfund/search/-superfund-sites-

where-you-live.

at issue here: Anaconda Co. Smelter and Silver Bow

Creek/Butte Area.35

Because of the inherent complexities noted by

Professor Leshy, above, the cleanup of old mining

sites has proved to be lengthy, expensive and divisive. In the 19th century, people often walked to

work and built their homes close to the mines and

mills that employed them. As the mining industry

expanded, more homes, and schools and shops were

built in areas already impacted by mining and mineral processing. And Mother Nature played a role as

well, with floods, spring thaws, wind storms and other weather events that wreaked havoc with a landscape often lacking much vegetation. In Butte, the

“Great Flood of 1908” washed out bridges, dams, tailings impoundments and other waste areas, strewing

throughout the city, what had earlier been better

contained.36 In short, in many old mining districts

today, historic homes and businesses exist alongside,

and often do not mix well with, the massive excavation projects, toxic substance warning signs and other accompaniments of a CERCLA cleanup.

For example, the Libby Asbestos Site, in northwestern Montana, was placed on the National Priorities List – i.e., made a Superfund site – in 2002.

There, EPA carried out investigations at “more than

6,400 properties and cleanups at more than 2400

properties,” all while the residents of two towns –

35 EPA,

Superfund Sites in Region 8, https://www.epa.gov/

region8/superfund-sites-region-8.

36 See,

e.g., https//www.bonnermilltownhistory.org/the-greatflood-of-1908, and https://mtstandard.com/news/local/miningcity-history-floods-of-part-ii/article_6966c8f1-47a6-5bfe-b5c7c199273519b9.html.

Libby and Troy – were living their lives in the midst

of a cleanup of a hazardous substance easily dispersed by wind and other disruptions. The complexities of this site led to EPA, in 2009, declaring “a Public Health Emergency” in order “to provide federal

health care assistance for victims of asbestos-related

diseases.”37 The scope and complexity of this site

meant the people of Libby and Troy needed national

remedial help, not state court lawsuits.

As for Anaconda and Butte, their complexity is

also self-evident. As explained in Petitioner’s brief,

Anaconda is still in the shadow of the once tallest

smokestack in the world, which on behalf of the

United States, the Anaconda Smoke Commission required Anaconda to build.38 And the now 33,000 or

so citizens of Butte, where the ore to be smelted in

Anaconda came from, live overtop of “an estimated

10,000 miles of mines” beneath them.39

If that were not complex enough, the scope of the

site is much more massive when not looked at in

more “bitesize” operable units. As described on

EPA’s website, the area impacted by the Anaconda

Smelter covers “300-square miles,” 40 and the Silver

Bow Creek/Butte area site impacted by mining and

other mineral processing, encompasses the “city of

Butte” and “26 miles of stream and streamside habi-

37https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=080

1744.

38 Wells, supra note 14; Morin, supra, note 13 at 62-63, Pet. Br.

39 Pet. Br. 8.

40https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=080

0403.

tat downstream from Butte.”41 And, the “Milltown

Reservoir Sediments/Clark Fork River site,” covers

“about 120 miles of the Clark Fork River upstream of

the (since removed and remediated) Milltown Dam

and Reservoir,” down which mining wastes floated

from Butte.42 In short, this is another national-sized

issue that calls for national policy, not state court,

remedies.

Moreover, it is not as if Montana and its citizenry

have not already received some compensation from

Petitioner. In 1983, the State of Montana filed a

natural resources damages suit in federal court

against Petitioner under CERCLA for these sites,

and Petitioner eventually agreed to pay approximately $400 million in environmental and restoration settlements to the State on behalf of the people

of Montana.43 And this despite the fact that the

State, as admitted by the same Montana Supreme

Court that issued the opinion now under review

here, proudly played a significant role in the mining

and mineral processing industry that built this state,

and from which the contamination at issue emanated. See Kipp, 110 P. at 240.

Even further, the State played an actual “handson” role in mineral processing, generating mining

wastes itself. From 1908 through the 1940s, the

State operated its own custom mill and smelter –

and disposed of wastes from its mill buildings onto

41https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=080

0416.

42https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=080

0445; see also Pet. Br., 11-15, and supra, note 36.

43 Mont.

Dep’t of Justice, Natural Resource Damage Program

Consent Decrees, https://dojmt.gov/lands/consent-decrees/.

the land and into the water of Butte – from the campus of the University of Montana’s Montana State

School of Mines (nka Montana Tech). As boasted in

the college’s “Annual Catalogue” for 1917-1918: “under proper instruction the students operate the mill

from the power plant to the tailings dump.”44

In 1989, the United States – as explained above,

itself a major facilitator of the smelter and the mines

– filed a CERCLA cleanup/cost recovery suit against

Petitioner that is still pending in the same United

States District Court which decided the Bliss case

and dismissed the government’s 1910 lawsuit.45

Since 1989, Petitioner has already spent hundreds of

millions for removal and remediation work under

this action, including nearly $500 million for cleanup

of the Anaconda Smelter site; all told, it has spent

over $1.4 billion to address its CERCLA obligations

in Montana. Pet. 2, 34.

Part of the current cost recovery action filed by

the United States has included its assertion that the

settlement of its 1910 Anaconda smelter lawsuit is

not relevant to its current CERCLA Anaconda smelter related claims. So far the United States has been

successful in this assertion. In Findings & Recommendations on hold under a stay of the 1989 suit, a

United States Magistrate Judge had this to say in

recommending that Petitioner’s “prior release” defense be rejected:

Montana State School of Mines, Seventeenth Annual Catalogue for 1916-1917, at 28 (1916); and George Gale, Montana

School of Mines: Mineral Dressing Pilot Plant Laboratory Survey (Master’s Thesis, Montana School of Mines) (May, 1947).

45 See, supra, note 16.

This Court is mindful that this decision may

leave [Atlantic Richfield] feeling as though it

is being double charged for the damages

caused by the Anaconda smelter. The issue

here is not whether this Court agrees with

the imposition of liability under CERCLA upon a successor corporation for damages

caused by its predecessor who reaped the

benefits of mining and smelting. The Court is

constrained to follow the law and the precedent interpreting the law. To borrow the

words of Judge Wisdom from his Penn Central decision:

“As a final word, we note that [defendant’s] position deserves some sympathy. The Settlement Agreement was

supposed to end the interaction between [defendant] and the government

once and for all. Furthermore, [defendant’s predecessor] owned and operated

the [smelter] at a time when our collective knowledge of the safety and health

threat posed by environmental hazards

was woefully inadequate. We are all

paying for that mistake. CERCLA is

but one mechanism for remedying these

decades of abuse. Sympathetic or not,

however, [defendant] cannot escape the

fact that Congress passed a statute

which launched similar retroactive actions everywhere.”46

46 F&R, supra note 16, at 24-25 (quoting Penn Central Corp. v.

United States, 862 F. Supp. 437, 458 (Reg’l Rail Reorg. Ct.

1994) (emphasis added).

In short, whether for railroads, chemical plants,

or mineral processors, this is a national issue that

requires a national solution. Double charged? For

Petitioner, quadruple-charged, more like it, if plaintiffs have their way. Unlike Montana’s current

courts, Congress did not mandate that the past be

ignored, but took history into account in its passage

of CERCLA. While from amici’s point of view unfairly skewed in many ways, the Superfund statute does

contain some protections against “double recovery,”

and provides for contribution claims against all

PRPs, including the federal government, which is to

be treated like any other party. See, e.g., CERCLA

§§ 113(f), 114(b) 120(a)(1).

Thus, CERCLA supports claims against the

United States based upon the Nation’s actions related to war, and to its long-term involvement with the

mining and mineral processing industry in the West.

See, e.g., Cadillac Fairview/California, Inc. v. Dow

Chemical Co., 299 F.3d 1019, 1026, 1029 (9th Cir.

2002) (explaining that some CERCLA war-related

cleanup costs can properly be allocated to the United

States as an expense “for which the American public

as a whole should pay”); Chevron Mining v. United

States, 863 F.3d 1261, 1276-78 (10th Cir. 2017) (as

owner of lands in Colorado on which unpatented

mining claims were worked by others, the United

States is a PRP; its active “encouragement” of mining

and mineral processing increases the public’s share

of liability).

On this latter point, Professor Leshy now seems

prescient. In 1987, he took note of CERCLA, as then

recently (and comprehensively) amended by SARA,47

and – citing to CERCLA – said this: “It is an interesting question whether the United States, as holder

of legal title to land embraced in unpatented mining

claims, might be held responsible for the cleanup of

any hazardous mining wastes disposed of on that

land.”48 That it took 30 years from the publication of

Professor Leshy’s book for this crucial, “interesting

question” to finally be addressed by one of the federal

circuit courts, speaks volumes about the lengthy and

complex process of cleaning up sites originally staked

and worked under the 1872 Mining Law.

Professor Leshy began his book with a quote

from Georgious Agricola’s 1556 treatise on mining

and minerals, De Re Metallica.49 Agricola discussed

the “arts and sciences” of mining and metallurgy

that should be studied by someone intending to participate in an industry, which some 450 years ago,

had already existed for millennia.50 Indeed, according to the over 4,000-year-old Old Testament, in describing the “promised land,” Moses said “and from

its mountains you will mine copper.”51 In the 16th

century, Agricola further instructed about mining:

“Lastly, there is the Law.”52 He advised a prospec47 Superfund

Amendments and Reauthorization Act of 1986

(P.L. 99-499).

48 Leshy at 188, and n.29.

49 Id. at xvii.

50 Id.

51 Deuteronomy 8:7-9.

See also Genesis 4:22 (describing Tubalcain, as “a forger of every sort of tool of copper and iron”).

52 Id. (quoting Agricola, De Re Metallica, translated by Herbert

and Lou Henry Hoover (1912)). Herbert Hoover was a mining

engineer – who apparently also studied Latin – before, in 1929,

he became the 31st President of the United States.

tive miner to become knowledgeable of the law so

“that he could claim his own rights” and also “fulfil

his obligations to others according to the law.”53

Agricola, it seems, would have been able to work

within CERCLA’s balanced scheme. But Sunburst is

another matter altogether.

C. Superfund and Sunburst.

Recognizing that the past can be neither ignored

nor easily washed away, CERCLA leaves to EPA the

choice of appropriate remedies, not necessarily pristine ones. And this is the rub for Respondents here

(a “small minority” of the residents, “about 10%”).54

They don’t like the remedy EPA chose, they call it

“botched” and want to force Petitioner “to pay for the

cleanup they want,” namely “replacement of all their

soil to a depth of 2 feet, and permeable barriers installed underground.”55

These admissions alone

make it clear that Petitioner, and Justice McKinnon,

are correct that the Opportunity restoration claim is

barred by CERCLA § 113(h). See Pakootas v. Teck

Cominco Metals, Ltd., 646 F.3d 1214, 1221 (9th Cir.

2011) (Section 113(h) bars claims that seek “to improve on the CERCLA cleanup” because the claimants, as here, “want[] more”).

Forget history and the covenants in their deeds,

in the words of Respondent Robert Phillips, the

plaintiff Opportunity property owners would “like

[their property] cleaned up to what it would have

53 Id.

54 Pet. Br. 16.

55 Matt

Volz, Montana Landowners Say Government Botched

Arsenic Cleanup, U.S. News (Feb. 24, 2017), https://www.

usnews.com/news/business/articles/2017-02-24/landowners-sayepa-botched-cleanup-now-they-want-a-shot.

been had the smelter not existed,” ignoring that in

such a case the community of Opportunity also

would not have existed.56 And that’s precisely what

the decision below, if allowed to stand, will let a jury

do—require Petitioner to finance a fictional landscape turned into a fairytale reality. But as the

United States explained in the amicus brief the Montana Supreme Court refused to credit, CERCLA

gives EPA the authority to select one comprehensive

remedy that will “fix the party’s cleanup obligations”

despite state-law claimants who want something different. Pet. App. 71a.

Regarding the remedy selected for Opportunity,

EPA’s spokesman explained: “the goal of the cleanup

plan is to protect human health, not to restore soil

levels to original condition.”57 But unlike Congress,

in its ruling permitting a jury to award pristine “restoration damages” in the middle of an on-going

CERCLA cleanup, the Montana Supreme Court refused to accord history its due. Acknowledging the

existence of the “smoke and tailings easements,” the

court gives them no effect, allowing “restoration” of

century-old, stable contamination as long as a jury

determines it is “reasonably abatable.” Christian I,

356 P.3d at 137, 157 (reversing summary judgment

for Petitioner under statutes of limitation).

Recognizing Opportunity would not have existed

at all but for the smelter and its smoke-conveyed

wastes, the court nevertheless agreed Petitioner can

be required to “restore” Opportunity property to a

fiction that never was. Compare id. at 137-38 (“As

part of the efforts to settle lawsuits brought by Bliss

56 Id.

57 Volz, supra, note 55.

and others, the Anaconda Company [also] purchased

significant amounts of land near the smelter. On

this land [it] set out to establish a rural housing

community for smelter workers, Opportunity.” Anaconda reserved “an easement allowing the deposition

of smelter waste on the land,” and that “easement

was then incorporated into the deeds transferred to

new Opportunity homeowners”); with Pet. App. 4a

(these Opportunity property owners are entitled to

ask the jury for damages “to restore their properties

to pre-contamination levels”).

In short, giving only lip service to the fact that

federal law is supreme, the majority below did an

“end run” around CERCLA’s remedy protections to

allow the Opportunity property owners to recover

damages intended to “restore” a fictional condition

the property owners never enjoyed, via a remedy

long ago rejected by the courts and their own predecessors-in-title, and currently rejected by EPA as

unwarranted and potentially dangerous to human

health. And the decision below does this all in total

reliance on Sunburst, a state law decision the court

apparently seeks to make supreme. Cited 20 times

in the decision below, Sunburst School District v.

Texaco, Inc., 165 P.3d 1079 (Mont. 2007), is a darling

of the Montana plaintiffs’ bar, and a bête noire of

Montana industry.58

58 Sunburst

created a new breed of Montana attorneys who

identify themselves as “pollution lawyers.” E.g., Cok Kinzler

PLLP, Bozeman, Montana Environmental Pollution and Contamination Attorneys, https://www.cokkinzlerlaw.com/PracticeAreas/Environmental-Pollution-Contamination.shtml; Edwards

Frickle & Culver, Montana Environmental Pollution Attorneys,

https://www.edwardslawfirm.org/civil-litigation/environmentallitigation/. Following on the heels of the decision below, “pollu-

The Sunburst decision allowed landowners within a cleanup area subject to Montana’s state-law environmental regulatory scheme, to collect damages

from a corporate successor so they could restore their

property that had been contaminated in the early

20th century by a long shuttered oil refinery. As

here, the Sunburst property owners did not like the

remedy selected by the regulator, DEQ (the Montana

Department of Environmental Quality), and convinced a jury to award them $15 million to do their

own cleanup of property with a fair-market value of

much less than that. The Montana Supreme Court

affirmed. It addressed the concern of “an unreasonable windfall” for property owners who might never

actually restore the property, but sell to another,

who could then file yet another restoration suit, and

so on, agreeing with the plaintiffs that “a single lump

sum to be awarded for restoration damages” was the

answer. Id. at 1088-89.

For federal Superfund sites a “lump sum” payment to a small minority of community residents is

no answer at all.59 As discussed above, these sites

are extremely complicated, which is why they are on

the National Priorities List in the first place. Congress decided that such sites must be remediated

under plans the experts at EPA determine, pursuant

tion lawyers” began holding public meetings to round up Sunburst clients within federal Superfund sites. Pet. 35.

59 Whether this was even “an answer” at Sunburst is question-

able at best. Twelve years later, the Sunburst site has not been

“restored” with the $15 million jury award, but is still in the

state-law risk assessment phase. See Mont. Dep’t of Envtl.

Quality,

Texaco

Sunburst

Works

Refinery,

http://deq.mt.gov/Land/statesuperfund/sunburst.

to federal regulations and guidelines that incorporate the best science and technology have to offer—

not under plans approved by “a jury of twelve Montanans” with no scientific or technical expertise. Pet.

24-29.

And a jury-imposed “new and different” restoration carried out by PRPs themselves could well leave

Petitioner in the Sisyphean nightmare of being ordered by EPA to correct the problems created by conflicting cleanups happening all across these huge,

complex Superfund sites. Pet. Br. at 6-7. Notwithstanding that Sunburst is the law in Montana, that

state law must yield when it conflicts with federal

law. To be blunt, as dissenting Justice McKinnon

showed, Superfund and Sunburst are wholly incompatible. Pet. App. 35a-36a. Agricola would agree.

This Court should reverse and make clear that federal law is supreme, to the Montana Supreme Court

and all other state courts poised to follow it.

D. Certainty,

Consistency,

Community

Buy-In and Finality are Essential to

Industry.

Minerals remain as necessary today as they were

in the 19th and 20th centuries, in Agricola’s 16th

century, and indeed have been throughout all of recorded history. Copper is not only used in transmission wires, refrigerators, automobiles and air conditioners, it is a necessary component in computers,

smart phones and tablets. Copper and other minerals mined and processed by amici’s members make

modern medicine, indeed virtually all of modern life,

possible. Pollution from both the past and present is

a legitimate concern, but just as in the past, in order

to progress, the present and the future still require

the minerals industry to thrive.

The history of the Opportunity property specifically, and of the environmental consequences of mining in the American West, more generally – as discussed above – is a compelling and concerning story

that needs to be told. The major concern of these

amici today, however, is that the decision below will

make it difficult, if not impossible, for their Montana

members to work with federal regulators to implement EPA remedies, to compromise and agree to settlements, where warranted, and to participate in ongoing regulatory efforts not yet finalized.

CERCLA is not the only federal law at issue

here. Particularly for the Montana Mining Association and the Montana Petroleum Association, their

members operate within heavily regulated federal

arenas under the purview of the Clean Water Act,

the Clean Air Act, and the Resource Conservation

and Recovery Act, to name just a few. Predictability,

certainty, consistency, finality—these are all necessary ingredients for industry to thrive in this new

world. Amici’s members must have confidence that

the remediation agreements, closure plans and other

agreements they reach with federal regulators will

not be undercut or overturned by state-law claimants

seeking something, as here, in conflict with federal

law.

And it is not just amici who are affected. Lawsuits have their place, but have never been known

for their ability to resolve or even address the issues

of an entire community. EPA, on the other hand,

under the strict mandates of CERCLA and its regulatory scheme, requires the involvement of the community. See 40 C.F.R. §§ 300.430(c)(2), (f)(2), (f)(3).

Under CERCLA, therefore, EPA hears from the entire spectrum of differently situated community

members, not just the individual plaintiffs who

choose to sue.

In Anaconda, for example, between 1993 and

1997 alone, EPA held eleven community-wide meetings, including one three-day “Open House” focused

on alternative remedies. J.A. 319. Since that time,

EPA has published at least fourteen fact sheets

about its remedies in local newspapers and hired a

part-time community-relations liaison. J.A. 319-20.

EPA is, thus, able to take account of the competing

preferences of community members in formulating a

remedy that “assures protection of human health

and the environment,” not just the specific demands

of individual plaintiffs made to a jury. 42 U.S.C. §

9621(d)(1).

That does not mean, of course, that EPA comes

up with a one-size-fits-all solution. The experience

at Anaconda and its five Operable Units, six Records

of Decision, and more than twenty-five administrative orders, speaks to that. But EPA is able to hear

from different stakeholders with different, and sometimes competing, interests and goals. A respondent

who owns predominantly pastureland is likely to

have very different priorities in a cleanup than a

storeowner in Opportunity or Crackerville. EPA’s

process acknowledges and addresses both sets of concerns.

Another advantage of CERCLA’s, and EPA’s,

community-wide approach is that it strives for inclusive buy-in across the board, not the divisive “one

side wins, one side loses” outcome of private lawsuits. For example, one of the challenges facing the

community of Libby –an asbestos-related Superfund

site in Montana, discussed above – was that residents felt Libby had been “stigmatized” by the pro-

cess and publicity.60 But consistent community

meetings and other outreach by EPA helped smooth

over these concerns. In a recent local newspaper article, Mike Cirian, EPA’s “onsite remedial project

manager,” commented on the small crowd that had

turned out for the latest EPA public meeting, comparing it favorably to the numbers who “ten years

ago … would have packed the room when [EPA] officials came to town.”61 With the town now safe to live

in, “Libby,” Cirian said, “is ready to move on.”62

In the 21st century, industry and government

strive to work together with the broader community

to protect the environment, and to remedy the problems of both the past and the present. The decision

below interferes with the viability of cooperation between the regulators and the regulated, with potentially chaotic and unsafe results for the community.

If the decision is not overturned, it will be a disaster

for Montana communities, industry and the EPA.

Reversal is the only remedy.

CONCLUSION

The judgment of the Montana Supreme Court

should be reversed.

60 https://www.mtpr.org/post/epa-presents-health-risk-

assessment-libby.

61 https://missoulian.com/news/local/last-call-for-libby-as-epa-

discusses-its-preferred-final/article_da0ecffa-a50d-5a81-8e81fb1dde04ceae.html.

62 Id.

Respectfully submitted,

KYLE A. GRAY