Amicus Curiae Brief — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.
Supreme Court briefMay 30, 2018
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No. 17-1498
IN T H E
Supreme Court of the United States
ATLANTIC RICHFIELD COMPANY,
Petitioner,
v.
GREGORY A. CHRISTIAN, ET AL.,
Respondents.
On Petition for a 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
May 30, 2018
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTERESTS OF AMICI CURIAE ..............................1
SUMMARY OF THE ARGUMENT ............................4
ARGUMENT ...............................................................5
A. What’s Past is Prologue. ................................5
B. Superfund and Sunburst. ............................ 13
C. Certainty, Consistency and Finality are
Essential to Industry. .................................. 22
CONCLUSION .......................................................... 23
i
TABLE OF AUTHORITIES
Cases
Page(s)
Bliss v. Anaconda Copper Min. Co.,
167 F. 342 (D. Mont. 1909) ................................ 9, 10
Bliss v. Washoe Copper Co.,
186 F. 789 (9th Cir. 1911) ....................................... 8
Bliss v. Washoe Copper Co.,
231 U.S. 764 (1913)................................................ 11
Cadillac Fairview/California, Inc. v. Dow
Chemical Co.,
299 F.3d 1019 (9th Cir. 2002) ................................ 17
Chevron Mining v. United States,
863 F.3d 1261 (10th Cir. 2017) .............................. 17
$ISJTUJBOW"UMBOUJD3JDImFME$P(Christian I),
356 P.3d 131 (Mont. 2015) ................................11, 19
Kipp v. Davis-Daly Copper Co.,
110 P. 237 (Mont. 1910)................................... 10, 11
Sunburst School District v. Texaco, Inc.,
165 P.3d 1079 (Mont. 2007)............................. 20, 21
Pakootas v. Teck Cominco Metals, Ltd.,
646 F.3d 1214 (9th Cir. 2011) ............................... 18
Penn Central Corp. v. United States,
862 F. Supp. 437 (Reg’l Rail Reorg. Ct. 1994) ...... 16
Statutes
MCA § 1-1-501 (En. Sec. 1, p. 42, L. 1893) ................. 1
Books
Michael Basso, Meet Joe Copper: Masculinity
& Race in Montana’s World War II Home
Front (2013).............................................................. 6
ii
Robert Cuff, The War Industries Board: Business-Government Relations During World
War I (1973) ............................................................. 7
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)........................ 13
Adam Hochschild, To End All Wars: A Story of
Loyalty and Rebellion, 1914-1918 (2011) ................ 7
William Kitteridge & Annick Smith, The Last
Best Place: A Montana Anthology (1990) ................ 1
Michael Malone, The Battle for Butte: Mining
and Politics on the Northern Frontier, 18641906 (1981)............................................................... 5
Bode Morin, The Legacy of American Copper
Smelting: Industrial Heritage versus Environmental Policy (2013) ......................................... 11
Other Authorities
EPA, Superfund Sites in Region 8 ........................... 15
George Everett, The Captain Who Fought
World War I in Butte, Montana ............................... 7
Findings & Recommendations of U.S. Magistrate Judge (F&R), United States v. Atlantic
3JDImFME$P, CV-89-39-BU-SEH (D. Mont.
Oct. 7, 1998) ................................................ 13, 15, 16
.POUBOBHPW0GmDJBM4UBUF8FCTJUF About
Montana ................................................................... 1
Mont. Dep’t of Envtl. Quality, Texaco Sunburst
8PSLT3FmOFSZ
Mont. Dep’t of Justice, Natural Resource
Damage Program Consent Decrees ...................... 15
iii
Anne Peters, The Great 19th Century Champion Salvator (Apr. 8, 2014) ........................................ 7
Matt Volz, Montana Landowners Say Government Botched Arsenic Cleanup, U.S. News
(Feb. 24, 2017) ................................................... 17-19
Arthur Wells, Report of the Anaconda Smelter
Smoke Commission, Oct.1, 1920, National
Archives (Record Group 70, Box 278) ................... 13
iv
INTERESTS OF AMICI CURIAE1
“Oro y Plata,” gold and silver in Spanish. Since
1893, by statute these are the words on the “Great
Seal of the State of Montana.” MCA § 1-1-501 (En.
Sec. 1, p. 42, L. 1893). The past, present and future of
the Treasure State is encapsulated in this seal,
which shows in its center “a plow and a miner’s pick
and shovel,” on its left the “Great Falls of the Missouri River,” and on its right “mountain scenery.” Id.
Amici Curiae BSF OPOQSPmU .POUBOB USBEF BTTPDJB
tions with members engaged in all aspects of business, the Great Seal’s center, including members who
continue to produce “oro y plata” and the other
“treasure” that forms such a critical part of the story
of this Last Best Place.2 The federal government has
long played a role here as well, with the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) becoming in the late 20th
century part of the complicated equation that is
Montana. Amici, concerned with balancing all interests represented on Montana’s Great Seal, concur
with Petitioner that the Montana Supreme Court decision at issue is poised to throw this balance “into
chaos,” and ask this Court to grant the petition and
reverse the Montana court’s dangerous misinterpretation and misapplication of CERCLA.
1
Pursuant to this Court’s Rule 37.2(a), counsel of record for all
parties received timely notice of amici’s intent to file this brief
and consented to it. 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.
2
“Treasure State” is the “official nickname” of the State of
Montana. 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).
1
2
Amicus Treasure State Resources Association of
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ciation, 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 conTJTUFODZ DFSUBJOUZ mOBMJUZBOEBCJMJUZUPQMBOGPSSJTL
provided by CERCLA, a comprehensive federal environmental scheme that precludes and preempts
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federal cleanups and the federal statute’s rules, requirements and protections. TSRA is concerned that
the decision below, which misreads and wrongly refuses to apply CERCLA’s jurisdictional and litigation limits will result in the very type of chaos and
inconsistency that is the bane of its members’ ability
to function and prosper.
Founded in 1919, amicus Montana Mining AssoDJBUJPO .." JTBOPOQSPmUWPMVOUBSZUSBEFBTTPDJ
ation comprised of members from every sector of the
mining industry in Montana. Producing members
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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 for our everyday lives,
along with affording countless Montana families and
graduates from local universities the opportunity to
3
prosper from well-paying employment.
One of
MMA’s primary functions is to share the compelling
story of the industry’s history in Montana, 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 industry in Montana,
i.e., members who explore and produce oil and natuSBMHBT XIPPQFSBUFQJQFMJOFT BOEXIPSFmOFQFUSP
MFVN QSPEVDUT " OPOQSPmU GPDVTFE PO NBJOUBJOJOH
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 .$$ JT B WPMVOUBSZ OPOQSPmU USBEF BTTPDJB
tion. 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 trade associations in asking this
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verse the decision below.
4
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
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its various provisions provide protections to parties
swept within its reach, both during and after the
“one coordinated cleanup” that Congress has mandated. U.S. Brief, Pet. App. 74a. Indeed: Certainty,
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nality, without them business cannot function, much
less thrive. Whether the remedy is performed under
a consent decree or an administrative order, the key
is that there will be one comprehensive remedy. 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
4UBUFTJTUPmYUIFQBSUZTDMFBOVQPCMJHBUJPOTwId. at
71a.
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 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. Pet. App. 13a.
Soil already cleaned and capped? Dig it up. Waste
disposed and contained? Move it elsewhere. Clean
water for domestic use? Install underground barriers and inject enzymes that may make the water unsafe to drink. As Petitioner so aptly puts it, this is
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5
decided that EPA, not juries, selects remedies for
hazardous wastes subject to CERCLA and that PRPs
(including current landowners like the plaintiffs
here) cannot engage in conduct contrary to EPA’s selected, in-progress remedy. Particularly given the
long history of this site, and of the mining industry
in Montana, federal control over contrary state remedies must be upheld. The opinion below reverses the
mandate of Congress that a single, coordinated
cleanup properly selected and supervised by EPA 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 uphold CERCLA as the supreme law of
the land. The petition should be granted.
ARGUMENT
A. What’s Past is Prologue.
The Petition explains how Petitioner Atlantic
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EPA at Montana Superfund sites for over 35 years.
Pet. 3-4, 6. For the waste at issue here, 35 years is
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with it. Perhaps a better place to start this story is
in 1864, when early prospectors in Montana’s Deer
Lodge Valley surveyed a remarkable sight: “one of
the greatest prizes that man has ever found on this
planet,” often called “the richest hill on earth.”3 Or
3
Michael Malone, The Battle for Butte: Mining and Politics on
the Northern Frontier, 1864-1906, at 28 (1981) (“The mineralized outcrops ran profusely from the brow of the hill” down to
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,”
6
perhaps on that day in 1882, less than a year after
excavations on the Butte hill began, when Marcus
Daly “leaned down and picked up a glistening copper
glance,” saying, “Mike, we’ve got it.”4
What they’d got was “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-be-constructed Washoe Smelter in the yet-tobe-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 here. But the smelter’s prodVDUSFmOFEDPQQFS [JODBOENBOHBOFTFXPVMEOPU
only result in riches for some, but would, among other things, electrify the nation and help win two world
wars.5
The massive fortunes of the Copper Kings (William A. Clark, Marcus Daly and F. Augustus Heinze)
and their associates that came from this incredible
NJOFSBMTUSJLFFWFOUVBMMZmOBODFEUIF)FBSTUOFXT
paper empire (inspiring Citizen Kane, named “the
greatest American movie of all time” by the American
Film Institute), raised and raced thoroughbreds like
the world famous Salvator, stocked the Corcoran Gallery of Art with masterpieces by the likes of Rembrandt, Rubens and Monet, and ended its run just a
and over to “conspicuous quartz-ledges rising prominently
above the surface, [with] obvious metal content”).
4
Id. at 28. Daly, one of the soon-to-be “Copper Kings,” was one
of the founders of the Anaconda Copper Mining Company.
5
Id. at 34-35; see also Michael Basso, Meet Joe Copper: Masculinity & Race in Montana’s World War II Home Front (2013).
7
few years ago with the death of a 104 year-old heiress who may have been swindled by her caregivers.6
In between the copper strike and the spending of
the Copper King fortune, minerals smelted in Anaconda played a huge role in the history of not only
America, but the world.7 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 with munitions made from Anaconda
copper, who eventually brought the “War to End All
Wars” to a close.8
Of course, all wars did not end then, nor did the
crucial need for copper and other Anaconda products.
By the 1940s, these products were “use[d] in critical
6
Malone, supra note 3, at 46, 198; Bill Dedman, Empty Mansions: The Mysterious Life of Huguette Clark and the Spending
of a Great American Fortune (2014); Anne Peters, The Great
19th Century Champion Salvator (Apr. 8, 2014), https://
www.bloodhorse.com/horse-acing/articles/112850/the-great-19th
-century-champion-salvator.
7
Although production peaked in the war years, Butte copper
(and other metals) are still produced, treated and transported
today by amici members.
8
See, e.g., George Everett, The Captain Who Fought World
War I in Butte, Montana, http://www.butteamerica.com/
brad.htm; Robert Cuff, The War Industries Board: BusinessGovernment Relations During World War I (1973); Adam
Hochschild, To End All Wars: A Story of Loyalty and Rebellion,
1914-1918 (2011).
8
components of airplanes, ships, tanks, bomb sights,
ammunition, and an astonishing range of other types
of equipment.”9 When America entered World War II,
the federal War Production Board put copper in an
“urgency rating band” higher than anything except
the Manhattan Projects. 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.10
But this is a brief in a court of law, so what better place to start than with a legal opinion? 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—Fred Bliss, representing an association of other farmers in the Deer
Lodge Valley, sued to enjoin the operation of Anaconda’s new Washoe smelter because arsenic and other
particulates in the smelter’s smoke were harming
9
Basso, supra note 5, at 5.
10
See, e.g., id. at vii, 125-30, 178-88, 233.
9
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Rachel Carson, the outcome was perhaps not surprisJOH 5IF /JOUI $JSDVJU BGmSNFE UIF EJTUSJDU DPVSU
which had denied the requested injunction, declining
to close the smelter. 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 v.
Anaconda Copper Min. Co., 167 F. 342, 372 (D. Mont.
1909). 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 has happened here in 2017,
the 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
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cent 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
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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,
10
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
11
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.
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Bliss’ injunction in 1911, and in 1913, this Court
dismissed his certiorari petition. See Bliss v. Washoe
Copper Co., 231 U.S. 764 (1913). Anaconda bought
out many of the Bliss suit farmers, and obtained socalled “smoke and tailings” easements from the rest
that “allow[ed] the [continuing] deposition of smelter
waste on the land.”11 It then established Opportunity
as a rural housing community for smelter workers on
the lands it had purchased. 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. The deeds all contained “smoke and
tailings easements,” resolving—so the Company
thought—any remaining problems it had, or would
ever have, with private landowners in the Deer
Lodge Valley.12
The federal government also took legal action in
this era. In 1910, it 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
11
See, e.g., Bode Morin, The Legacy of American Copper Smelting: Industrial Heritage versus Environmental Policy (2013);
Christian v. Atlantic Richfield Co. (Christian I), 356 P.3d 131,
137-38 (Mont. 2015).
12
Id.
12
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. 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 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.13
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 smel13
Id.; and Arthur Wells, Report of the Anaconda Smelter Smoke
Commission, Oct.1, 1920, National Archives (Record Group 70,
Box 278).
13
ter’s smoke zone. Thus, the United States received
compensation for smelter injuries to federal lands,
just as the Bliss farmers (and Opportunity residents)
did for their private lands.14
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
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ter all, wars needed to be won, and they couldn’t be
won without copper. 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 District
of Montana as “abandoned.”15 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
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1977, and later merged into it in 1981, leaving Petitioner as Anaconda’s sole corporate successor.
B. Superfund and Sunburst.
From the publication of Rachel Carson’s Silent
Spring in 1962, things began to change in what had
seemed to be a settled landscape. As the economy
evolved and an 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.”16 The enactment of CERCLA in
December 1980 was a watershed event. Petitioner
14
Bode, supra note 11, at 118. 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).
15
Bode, supra note 11, at 118; F&R, supra note 13, at 5.
16
L.P. Hartley, The Go-Between (1953).
14
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 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. Of the 17 Superfund sites that currently cover
the map of Montana, nearly all involve wastes related to old mining or mineral processing activities. Id.
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).
15
And, of course, the sites at issue here: Anaconda Co.
Smelter and Silver Bow Creek/Butte Area.17
In 1983, the State of Montana filed a natural resources damages suit in federal court against Petitioner under CERCLA, and Petitioner eventually
agreed to pay approximately $400 million in settlements to the State on behalf of the people of Montana.18 In 1989, the United States 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. 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 has been
the assertion by the United States that the settlement of its 1910 Anaconda smelter lawsuit is not relevant to its current CERCLA Anaconda smelter related claims. So far it 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:
This Court is mindful that this decision may
leave [Atlantic Richfield] feeling as though it
is being double charged for the damages
17
EPA, Superfund Sites in Region 8, https://www.epa.gov/
region8/superfund-sites-region-8.
18
Mont. Dep’t of Justice, Natural Resource Damage Program
Consent Decrees, https://dojmt.gov/lands/consent-decrees/.
16
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.”19
Double charged? Quadruple-charged, more like
it, if plaintiffs have their way. Congress, however, did
not mandate that the past be entirely ignored, but
took history into account in its passage of CERCLA.
While from Amici’s point of view unfairly skewed in
19
F&R, supra note 13, at 24-25 (quoting Penn Central Corp. v.
United States, 862 F. Supp. 437, 458 (Reg’l Rail Reorg. Ct.
1994).
17
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 warrelated 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).
Recognizing that the past cannot be either ignored or washed away, CERCLA leaves to EPA the
choice of appropriate remedies, not necessarily pristine ones. And this is the rub for plaintiffs—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.”20
These admissions alone
make it clear that Petitioner, and Justice McKinnon,
20
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.
18
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”). It is hard to imagine a
clearer split between the federal circuit courts and
Montana’s highest court over how to interpret and
apply this controlling federal law.
Forget history and the covenants in their deeds,
in the words of Respondent Robert Phillips, the Opportunity property owners would “like [their property] cleaned up to what it would have been had the
smelter not existed,” ignoring that in such a case Opportunity also would not have existed.21 And that’s
precisely what the decision below, if allowed to stand,
XJMMMFUBKVSZEPSFRVJSF1FUJUJPOFSUPmOBODFBmD
tional landscape turned into a fairytale reality. But
as the United States explained in the amicus brief
the Montana Supreme Court refused to credit, built
into the “warp and weft” of the Superfund statute are
protections—which make CERCLA workable—that
ensure landowners like plaintiffs cannot challenge
the single, comprehensive remedy that EPA selects.
Whether by administrative order or consent decree,
CERCLA gives EPA the authority to select one comQSFIFOTJWF SFNFEZ UIBU XJMMimY UIF QBSUZT DMFBOVQ
obligations” despite state-law claimants who want
more. Pet. App. 71a.
As explained by EPA’s spokesman regarding the
remedy selected for Opportunity, “the goal of the
cleanup plan is to protect human health, not to re-
21
Id.
19
store soil levels to original condition.”22 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, 358 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
CFSFRVJSFEUPiSFTUPSFw0QQPSUVOJUZQSPQFSUZUPBmD
tion that never was. Compare id. at 137-38 (“As part
of the efforts to settle lawsuits brought by Bliss and
others, the Anaconda Company [also] purchased sigOJmDBOU BNPVOUT PG MBOE OFBS UIF TNFMUFS 0O UIJT
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 precontamination levels”).
In short, giving only lip service to the fact that
federal law is supreme, the majority below “end runs”
CERCLA’s remedy protections to allow the Opportunity property owners to recover damages intended
UPiSFTUPSFwBmDUJPOBMDPOEJUJPOUIFQSPQFSUZPXOFST
22
Id.
20
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 it 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.23
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
UI DFOUVSZ CZ B MPOH TIVUUFSFE PJM SFmOFSZ "T
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
BGmSNFE*UBEESFTTFEUIFDPODFSOPGiBOVOSFBTPOB
ble windfall” for property owners who might never
actually restore the property, but sell to another, who
23
The Sunburst decision created a new breed of Montana attorneys who identify themselves as some variation of “pollution
lawyers.” See, e.g., Cok Kinzler PLLP, Bozeman, Montana Environmental
Pollution
and
Contamination
Attorneys,
https://www.cokkinzlerlaw.com/Practice-Areas/EnvironmentalPollution-Contamination.shtml; Edwards Frickle & Culver,
Montana Environmental Pollution Attorneys, https://www.
edwardslawfirm.org/civil-litigation/environmental-litigation/.
Following on the heels of the decision below, “pollution lawyers”
are now holding public meetings to round up Sunburst clients
within federal Superfund sites. Pet. 35.
21
DPVMEUIFOmMFZFUBOPUIFSSFTUPSBUJPOTVJU BOETPPO
agreeing with the plaintiffs that “a single lump sum
to be awarded for restoration damages” was the answer. Id. at 1088-89.
Whether this was even an answer at Sunburst is
questionable. Eleven 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.24 This is not surprising. How could this “answer” ever work in these types of cases? The plaintiffs’ counsel take their contingency fee share out of
this “single lump sum,” leaving the plaintiffs with inTVGmDJFOUGVOETUPDBSSZPVUUIFSFTUPSBUJPOQMBOUIF
jury approves.
In any event, for federal Superfund sites a “lump
sum” payment is no answer at all. These sites are
extremely complicated, which is why they are on the
/BUJPOBM 1SJPSJUJFT -JTU JO UIF mSTU QMBDF $POHSFTT
decided that such sites must be remediated under
plans the experts at EPA determine, pursuant 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
OPTDJFOUJmDPSUFDIOJDBMFYQFSUJTF1FU
Notwithstanding that Sunburst is the law in
.POUBOB UIBUTUBUFMBXNVTUZJFMEXIFOJUDPOnJDUT
with federal law. To be blunt, as dissenting Justice
McKinnon showed, Superfund and Sunburst are
wholly incompatible. Pet. App. 35a-36a. This Court
should grant the Petition to make clear that federal
law is supreme, to the Montana Supreme Court and
all other state courts poised to follow it.
24
See Mont. Dep’t of Envtl. Quality, Texaco Sunburst Works
Refinery, http://deq.mt.gov/Land/statesuperfund/sunburst.
22
C. Certainty, Consistency and Finality are
Essential to Industry.
Minerals remain as necessary today as they were
in the 19th and 20th centuries, 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.
While the history of the Opportunity property,
explained above, is a compelling and concerning story that needs to be told, the major concern of these
amici JTUIBUUIFEFDJTJPOCFMPXXJMMNBLFJUEJGmDVMU
if not impossible, for their Montana members to work
with federal regulators, to compromise and agree to
settlements, where warranted, and to participate in
POHPJOHSFHVMBUPSZFGGPSUTOPUZFUmOBMJ[FE
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, cerUBJOUZ DPOTJTUFODZ mOBMJUZUIFTF BSF BMM OFDFTTBSZ
ingredients for industry to thrive in this new world.
Amici’s NFNCFST NVTU IBWF DPOmEFODF UIBU UIF SF
mediation agreements, closure plans and other
agreements they reach with federal regulators will
not be undercut or overturned by state-law claimants
23
TFFLJOH TPNFUIJOH BT IFSF JO DPOnJDU XJUI GFEFSBM
law. In the 21st century, industry and government
strive to work together to protect the environment,
and to remedy the problems of both the past and the
present. The decision below interferes with the viability of such agreements and cooperation between
the regulators and the regulated, with potentially
chaotic and unsafe results. For a law like CERCLA,
which strongly favors voluntary compliance with
administrative orders, settlement agreements and
consent decrees, the decision is a disaster, both for
industry and for the EPA. Reversal is the only remedy.
CONCLUSION
The Court should grant certiorari.
Respectfully submitted,
KYLE A. GRAY
Counsel of Record
WILLIAM W. MERCER
BRIANNE C. MCCLAFFERTY
HOLLAND & HART LLP
401 N. 31st St., Suite 1500
Billings, MT 59101
(406) 252-2166
kgray@hollandhart.com
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.