Christian v. Atlantic Richfi , 380 Mont. 495 ( 2015 )

September 1 2015
Case Number: DA 14-0015
DA 14-0015
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 255
GREGORY A. CHRISTIAN; MICHELLE D.
CHRISTIAN; ROSEMARY CHOQUETTE;
DUANE N. COLWELL; SHIRLEY A. COLWELL;
FRANKLIN J. COONEY; VICKI COONEY;
GEORGE COWARD; SHIRLEY COWARD;
JACK E. DATRES; SHEILA DORSCHER; VIOLA
DUFFY, BRUCE DUXBURY; JOYCE DUXBURY;
BILL FIELD; CHRIS FIELD; ANDREW GRESS
AND FRANK GRESS AS CO-PERSONAL
REPRESENTATIVES OF THE ESTATE OF JAMES
GRESS; CHARLES GUSTAFSON; MICHAEL
HENDRICKSON; PATRICE HOOLAHAN; SHAUN
HOOLAHAN; ED JONES, RUTH JONES; BARBARA
KELSEY; MYRTLE KOEPPLIN; BRENDA
KRATTIGER; DOUG KRATTIGER; JULIE LATRAY;
LEONARD MANN; VALERIE MANN; KRISTY
MCKAY; RUSS MCKAY, BRYCE MEYER; MILDRED
MEYER; JUDY MINNEHAN; TED MINNEHAN;
DIANE MORSE; RICHARD MORSE; KAREN
MULCAHY; PATRICK MULCAHY; NANCY MYERS;
SERGE MYERS; LESLIE NELSON; RON NELSON;
JANE NEWELL; JOHN NEWELL; GEORGE NILAND;
LAURIE NILAND; DAVID OSTROM; ROSE ANN
OSTROM; JUDY PETERS; TAMMY PETERS;
ROBERT PHILLIPS; TONI PHILLIPS; CAROL
POWERS; WILLIAM D. POWERS; GARY RAASAKKA;
MALISSA RAASAKKA; ALEX REID; KENT
REISENAUER; PETER REISENAUER; SUE REISENAUER;
LARRY RUPP; JOHN A. RUSINSKI; KATHRYN
RUSISKI; EMILY RUSS; SCOTT RUSS; CARL RYAN;
PENNY RYAN; RICH SALLE; DIANE SALLE; DALE
SCHAFER; DAVID D. SCHLOSSER; ILONA M.
SCHLOSSER; MICHAEL SEVALSTAD; JIM SHAFFORD;
ROSEMARIE SILZLY; ANTHONY SOLAN; KEVIN
SORUM; DON SPARKS; VICKIE SPEHAR; ZANE
SPEHAR; CARA SVENDSEN; CARON SVENDSEN;
JAMES H. SVENDSEN, SR.; JAMES SVENDSEN, JR.;
DOUG VIOLETTE; ESTER VIOLETTE; CAROL
WALROD; CHARLES WALROD; DARLENE WILLEY;
KEN YATES; SHARON YATES; LINDA EGGEN AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF
WILLIAM YELSA AND AS GUARDIAN OF MAURINE
YELSA; DAVID ZIMMER; and TONI ZIMMER,
Plaintiffs and Appellants,
v.
ATLANTIC RICHFIELD COMPANY,
Defendant and Appellee.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte/Silver Bow, Cause No. DV-08-173 BN
Honorable Brad Newman, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Mark M. Kovacich (argued), Tom L. Lewis, J. David Slovak, Lewis,
Slovak & Kovacich, P.C., Great Falls, Montana
Monte D. Beck, Justin P. Stalpes, Lindsay C. Beck, Beck & Amsden,
PLLC, Bozeman, Montana
For Appellee:
John P. Davis, Patrick M. Sullivan, Poore, Roth & Robinson, P.C., Butte,
Montana
Shannon Wells Stevenson (argued), Jonathan W. Rauchway, Mark E.
Champoux, James R. Henderson, David Graham & Stubbs LLP, Denver,
Colorado
Argued: January 14, 2015
Submitted: February 17, 2015
Decided: September 1, 2015
Filed:
__________________________________________
Clerk
2
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Appellants own properties in and around the town of Opportunity, Montana.
Opportunity is a rural community a few miles east of a former copper smelter operated by
the Anaconda Company. Appellee Atlantic Richfield Company (ARCO) is the successor
in interest to the Anaconda Company. During smelting operations, which took place
between 1884 and 1980, the smelter emitted smoke and fumes containing arsenic and
other toxic materials. Particles of these materials settled on the surrounding lands. The
area is now classified as a Superfund site. Appellants filed this action April 17, 2008,
seeking damages for the cost of restoring their properties to their original state. ARCO
moved for summary judgment on statute of limitations grounds, arguing that the conduct
complained of ceased almost 30 years prior to the filing of the complaint. Appellants
responded that the continued presence of contaminants on their property constitutes a
continuing tort and falls within an exception to the statute of limitations. The District
Court granted summary judgment in favor of ARCO on all claims, finding that
Appellants’ claims were barred by the statute of limitations. We affirm in part, reverse in
part, and remand for further proceedings.
¶2 Appellants present the following issues for review:
1. Whether application of the continuing tort doctrine requires evidence of
the continued migration of contaminants.
2. Whether genuine questions of material fact exist regarding the
reasonableness of abating the contamination on Appellants’ properties.
3. Whether the continuing tort doctrine applies to Appellants’ claims other
than nuisance and trespass.
3
4. Whether the facts constituting Appellants’ claims were concealed or
self-concealing, or whether ARCO took action preventing Appellants
from learning those facts.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The Anaconda Company1 opened its first copper smelter in 1884, twenty-six miles
west of the mining town of Butte. At the time of its opening, the Anaconda smelter was
the largest in the area, with plans already underway to double its capacity. To house
workers for this immense enterprise, the town of Anaconda was founded adjacent to the
smelter works. A second smelter was completed in 1888, and the combined facility was
capable of processing 6,000 tons of copper ore per day. In 1902, with the existing works
already becoming obsolete, a new smelter was constructed with an eventual capacity of
more than 8,000 tons per day.
¶4 Smelting copper ore involves the application of heat to break the chemical bonds
between the desired copper and minerals in the surrounding rock, including sulfur, iron,
and arsenic. Soon after operations began at the new works in 1902, nearby farmers and
ranchers began to complain that arsenic released from the smelter was killing their
livestock. The Anaconda Company paid for the damaged livestock and took remedial
measures at the smelter. Individual smokestacks were replaced by a system of flues
designed to let the smoke cool, allowing harmful particles to condense and settle to a fine
dust, before being discharged through a single main stack. The height of the main stack
1
The Anaconda Company was known by several different names throughout its
corporate history, including the Anaconda Mining Company, the Anaconda Copper
Mining Company, and the Anaconda Gold and Silver Company. For simplicity, we will
use the name Anaconda Company throughout.
4
was increased to 300 feet to allow the smoke to be discharged higher in the atmosphere,
where any remaining harmful materials would be dissipated over a wider area.
¶5 The farmers’ and ranchers’ concerns about harm to their crops and livestock from
arsenic deposited on their lands were not alleviated by these measures. In 1905, Fred
Bliss, representing the Deer Lodge Valley Farmers’ Association, filed suit against the
Anaconda Company. The United States also filed suit regarding damage to
federally-owned property caused by smelter emissions. As a result of negotiations
stemming from that suit, a three-member commission was instituted to study the
emissions problem and make recommendations for remedial action. Among other
improvements, the “Smoke Commission” recommended construction of a new 585-foot
main stack to propel emissions even higher into the atmosphere.
¶6 As part of the efforts to settle lawsuits brought by Bliss and others, the Anaconda
Company obtained smoke and tailings easements allowing the deposition of smelter
waste on the subject properties, including many of those now owned by Appellants. The
Anaconda Company also purchased significant amounts of land near the smelter. On this
land, the Anaconda Company set out to establish a rural housing community for smelter
workers, called Opportunity. The Anaconda Company’s aim in founding Opportunity
was twofold: to attract stable, loyal, and reliable employees; and to quiet concerns about
smelter emissions by showcasing a bucolic community situated directly beneath the
plume. The Anaconda Company transferred the land that would become Opportunity to
the Deer Lodge Valley Farms Company—run by Anaconda Company officers—with
language in the deed reserving to the Anaconda Company an easement allowing the
5
deposition of smelter waste on the land. The easement was then incorporated by
reference into the deeds transferred to new Opportunity homeowners.
¶7 In 1977, the Anaconda Company was purchased by ARCO. The smelter ceased
operations in 1980. The Anaconda Smelter Superfund Site was established in 1983 under
the federal Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA). All of Appellants’ properties lie within the Superfund site, which covers an
area of more than 300 square miles. The Environmental Protection Agency organized
several public meetings as remediation plans were developed. The environmental
contamination in the area was the subject of extensive newspaper coverage. Children in
Anaconda provided urine samples to be tested for arsenic exposure. Soil and
groundwater sampling and testing was conducted on many properties in Opportunity,
including some of those owned by Appellants, beginning in 2002.
¶8 Appellants filed this action on April 17, 2008, stating causes of action for
negligence, public nuisance, private nuisance, trespass, strict liability for the conduct of
an abnormally dangerous activity, constructive fraud, unjust enrichment, and wrongful
occupation of real property. Appellants sought damages for the full cost of restoring their
properties to their original, uncontaminated state. On September 12, 2013, ARCO moved
for summary judgment on all claims on the grounds they were barred by the applicable
statutes of limitations. ARCO argued that Appellants had known about the possible
contamination of their properties for years, if not decades, and thus could have brought
suit earlier. ARCO also argued that Appellants’ claims should not be considered
continuing torts, because the contamination was not reasonably abatable and Appellants
6
had produced no evidence that it continued to migrate. Moreover, ARCO claimed the
continuing tort doctrine was applicable only to claims for trespass and nuisance, and
could not save Appellants’ remaining claims from the statute of limitations.
¶9 In response, Appellants argued that ARCO had previously represented that
Opportunity was free of contamination, preventing Appellants from investigating the
actual extent of harm to their properties. Appellants further argued that the migration of
contaminants is not required to establish a continuing tort, and that remediation plans
proposed by their experts demonstrated that the contamination could be reasonably
abated. Finally, Appellants argued that the continuing tort doctrine could be applied to
their claims of negligence, strict liability, wrongful occupation, and unjust enrichment in
addition to their claims of nuisance and trespass.
¶10 ARCO also moved for summary judgment on Appellants’ negligence claim, on the
grounds that Appellants had failed to disclose expert witness testimony defining the
applicable standard of care; on Appellants’ claim for restoration damages, on the grounds
that Appellants’ proposed remediation of the site was barred by CERCLA; on all claims
concerning Appellants’ properties subject to smoke and tailings easements; on
Appellants’ unjust enrichment, constructive fraud, strict liability, and wrongful
occupation claims, on grounds specific to each; and on Appellants’ claims for trespass
and nuisance, on the grounds that Appellants suffered no actual property damage as a
result of the contamination. The District Court heard arguments on the pending summary
judgment motions on November 18 and 20, 2013.
7
¶11 On December 17, 2013, the District Court granted summary judgment in favor of
ARCO on all claims, finding they were barred by the applicable statutes of limitations.
The District Court concluded that due to widespread awareness about contamination from
the smelter and the availability of environmental testing, Appellants should have known
the facts constituting their claims earlier. The District Court also concluded that
application of the continuing tort doctrine requires evidence of continued migration of
contaminants, which the District Court found Appellants had failed to produce. The
District Court also concluded that Appellants had not identified facts showing that their
proposed abatement was reasonable, further precluding application of the continuing tort
doctrine. Finding the statute of limitations issue dispositive with respect to all claims, the
District Court did not address the remaining motions for summary judgment. The
District Court ordered dismissal of the entire action, and this appeal followed.
STANDARD OF REVIEW
¶12 We review a district court’s grant of summary judgment de novo, applying the
same M. R. Civ. P. 56(c) criteria as the district court. Lorang v. Fortis Ins. Co., 2008 MT
252, ¶ 36, 345 Mont. 12, 192 P.3d 186. Summary judgment is appropriate when there is
no genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law. M. R. Civ. P. 56(c); Estate of Willson v. Addison, 2011 MT 179, ¶ 13,
361 Mont. 269, 258 P.3d 410. Summary judgment is an extreme remedy that should
never be substituted for a trial if a material factual controversy exists. Hajenga v.
Schwein, 2007 MT 80, ¶ 11, 336 Mont. 507, 155 P.3d 1241 (quoting Lee v. USAA Cas.
Ins. Co., 2001 MT 59, ¶ 71, 304 Mont. 356, 22 P.3d 631). The moving party must
8
“‘exclude any real doubt as to the existence of any genuine issue of material fact’ by
making a ‘clear showing as to what the truth is.’” Lorang, ¶ 37 (quoting Toombs v.
Getter Trucking, Inc., 256 Mont. 282, 284, 846 P.2d 265, 266 (1993)). If there is any
doubt as to whether a genuine issue of material fact exists, that doubt must be resolved in
favor of the party opposing summary judgment. Lorang, ¶ 38.
DISCUSSION
¶13 Statutes of limitations promote basic fairness. Burley v. BNSF Ry. Co., 2012 MT
28, ¶ 16, 364 Mont. 77, 273 P.3d 825. They suppress stale claims, Burley, ¶ 16, ensuring
that the responding party has a reasonable opportunity to mount an effective defense,
Mont. Pole & Treating Plant v. I.F. Laucks & Co., 993 F.2d 676, 678 (9th Cir. 1993).
Statutes of limitations compel the exercise of a right of action within a reasonable time,
because excessive delay “is clearly not conducive to a full presentation of the evidence
nor a search for the truth.” E.W. v. D.C.H., 231 Mont. 481, 484, 754 P.2d 817, 819
(1988), superseded by statute, § 27-2-216, MCA, as recognized in Cosgriffe v. Cosgriffe,
262 Mont. 175, 177-78, 864 P.2d 776, 777-78 (1993). Generally, a claim accrues and the
limitations period begins to run when all elements of the claim or cause of action exist,
including damages. Section 27-2-102, MCA; Uhler v. Doak, 268 Mont. 191, 196, 885
P.2d 1297, 1300 (1994). At times, however, principles of fairness require us to recognize
exceptions to this rule. Mont. Pole, 993 F.2d at 678. Appellants argue that two such
exceptions apply to their claims: the continuing tort doctrine and the discovery rule.
¶14 Before addressing these exceptions, we note the following statutes of limitations
applicable to Appellants’ claims: For an action based on fraud, including constructive
9
fraud, two years, § 27-2-203, MCA; Deschamps v. Treasure State Trailer Court, Ltd.,
2010 MT 74, ¶ 33, 356 Mont. 1, 230 P.3d 800; for injury to property, including nuisance
and trespass, two years, § 27-2-207, MCA; for unjust enrichment, three years,
§ 27-2-202, MCA; N. Cheyenne Tribe v. Roman Catholic Church, 2013 MT 24, ¶ 41,
368 Mont. 330, 296 P.3d 450; and for general tort actions, including negligence and strict
liability, three years, § 27-2-204, MCA.2 Appellants’ complaint was filed April 17, 2008.
Absent an exception to the applicable limitations periods, and applying the longer
three-year period for purposes of this analysis, Appellants’ claims are time-barred if they
accrued earlier than April 17, 2005.
¶15 1. Whether application of the continuing tort doctrine requires evidence of the
continued migration of contaminants.
¶16 A nuisance is defined, in relevant part, as “[a]nything that is injurious to health,
indecent or offensive to the senses, or an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property . . . .” Section 27-30-101(1),
MCA; Graveley Ranch v. Scherping, 240 Mont. 20, 22-23, 782 P.2d 371, 373 (1989). A
trespass is an intrusion on a party’s right to exclusive possession of his or her property.
Burley, ¶ 13 (citing Tally Bissell Neighbors, Inc. v. Eyrie Shotgun Ranch, LLC, 2010 MT
63, ¶ 38, 355 Mont. 387, 228 P.3d 1134). Injuries to property, including nuisance and
2
The statute of limitations for a claim of wrongful occupation will be discussed later in
this Opinion.
10
trespass, have a limitations period of two years. Section 27-2-207, MCA; Burley, ¶ 16.
Both nuisance and trespass, however, may constitute continuing torts.3 Burley, ¶ 14.
¶17 A continuing tort is one that is “not capable of being captured by a definition of
time and place of injury because it is an active, progressive and continuing occurrence. It
is taking place at all times.” Floyd v. City of Butte, 147 Mont. 305, 312, 412 P.2d 823,
826 (1966). The continuing tort exception may be applied to injuries that are ongoing or
in some way recurring. Burley, ¶ 14 (continuing tort doctrine “applies to a temporary
injury that gives rise to a new cause of action each time that it repeats.”). For example, in
Graveley Ranch, batteries left on the defendants’ property discharged lead onto the
neighboring ranch, poisoning several of their cattle. Graveley Ranch, 240 Mont. at 21,
782 P.2d at 372. The leaching of lead from the batteries onto plaintiffs’ property was a
condition that would continue until the batteries were removed, while the death of cattle
from exposure to lead was an injury that periodically recurred. We held that the nuisance
was “continuing until it is abated; the statute does not begin to run until the batteries are
removed and the toxic residue cleaned . . . .” Graveley Ranch, 240 Mont. at 25, 782 P.2d
at 375. Further, if the nuisance was not abated, we noted that “a new cause of action may
arise each time a cow becomes ill or dies as a result of lead poisoning.” Graveley Ranch,
240 Mont. at 25, 782 P.2d at 375.
3
Appellants also claim the continuing tort doctrine should apply to their claims of
negligence, strict liability, wrongful occupation, and unjust enrichment. In this section,
we address only their claims of continuing nuisance and trespass. Remaining claims will
be discussed separately.
11
¶18 Although we refer here to the “continuing tort doctrine,” the simple fact that the
condition constituting a nuisance or trespass continues to exist does not itself suffice to
toll the statute of limitations.4 The continuing tort doctrine requires us to consider
whether a nuisance or trespass is temporary or permanent in character. A permanent
nuisance or trespass is “one where the situation has ‘stabilized’ and the permanent
damage is ‘reasonably certain.’” Haugen Trust v. Warner, 204 Mont. 508, 513, 665 P.2d
1132, 1135 (1983) (quoting Blasdel v. Mont. Power Co., 196 Mont. 417, 640 P.2d 889
(1982)). If a nuisance or trespass is permanent, the limitations period begins to run “from
the completion of the structure or thing which constitutes or causes the nuisance,” and all
damages caused by the nuisance or trespass must be recovered in a single action.
Graveley Ranch, 240 Mont. at 23, 782 P.2d at 373. When damages for a permanent
nuisance or trespass are assessed once and for all, then the plaintiff will be permitted to
recover both past and prospective damages. The continuing tort doctrine does not toll the
statute of limitations in cases of a permanent nuisance or trespass.
¶19 When we refer to a continuing nuisance or trespass for purposes of the continuing
tort doctrine, we are actually referring to a temporary nuisance or trespass. The terms
“continuing” and “temporary” are often used synonymously or interchangeably by courts.
See, e.g., Hoery v. United States, 64 P.3d 214, 217-18 (Colo. 2003). If a nuisance “is
terminable, it cannot be deemed a permanent nuisance,” and is therefore considered
temporary. Haugen Trust, 204 Mont. at 514, 665 P.2d at 1135. If a nuisance or trespass
4
“Tolling” means to stop or interrupt the running of the limitations period. Black’s Law
Dictionary 1716 (Bryan A. Garner ed., 10th ed. 2014).
12
is temporary, its repetition or continuance “gives rise to a new cause of action, and
recovery may be had for damages accruing within the statutory period next preceding the
commencement of the action . . . .” Graveley Ranch, 240 Mont. at 23, 782 P.2d at 373
(quoting Walton v. City of Bozeman, 179 Mont. 351, 356, 588 P.2d 518, 521 (1978)).
Thus, the injured party may maintain successive actions for damages incurred during the
statutory period prior to the filing of each complaint. Shors v. Branch, 221 Mont. 390,
397, 720 P.2d 239, 243 (1986); see also Mangini v. Aerojet-General Corp., 912 P.2d
1220, 1230 (Cal. 1996). Prospective damages are unavailable when the injury is
continuous and recovery is limited to actual injury suffered prior to commencement of
each action.
¶20 These distinctions could create particular problems for the parties. For example, if
the defendant is willing and able to abate the nuisance it may be unfair to award
prospective damages on the presumption that the nuisance will continue. On the other
hand, if it appears improbable that the nuisance can or will be abated, or if the plaintiff is
willing that the nuisance continue provided compensation is paid for past and future
injuries, then it may be unreasonable to leave the plaintiff to the troublesome remedy of
successive actions. Thus, when distinguishing between permanent and continuing
nuisances, each case must be determined upon its own peculiar circumstances by
applying the considerations of abatability. As determined in Burley, fundamental
considerations underlying abatability include the cost of abatement, the type of property
affected, the severity of contamination, and the length of time necessary to remediate the
contamination. Burley, ¶ 89. By maintaining a focus on whether the injury can be
13
discontinued or abated, we remain true to these basic principles of recovery for damages
due to successive injuries. Necessarily, this will require consideration of whether the
contamination has stabilized or continues to migrate.
¶21 In Burley, we addressed a certified question from the United States District Court
for the District of Montana asking how the continuing tort doctrine would apply to
“property damage claims of nuisance and/or trespass resulting from contamination which
has stabilized, continues to migrate, and is not readily or easily abatable.” Burley, ¶¶ 1-2.
In Burley, as here, operations at a former industrial site—in that case, a rail yard—
resulted in the discharge of toxic pollutants which contaminated the soil of neighboring
properties. Burley, ¶ 5. Like the Anaconda smelter, the rail yard closed in the 1980s, and
thus no further contaminants were being generated or discharged by the time the
neighboring landowners brought suit in 2007. Burley, ¶¶ 5, 8. In this case, as in Burley,
there appears to be no dispute that “the overall concentration of pollutants in the
underground plume no longer [is] increasing.” Burley, ¶ 20. We held that
“[c]ontamination that has stabilized in terms of quantity or concentration, but continues
to migrate will toll the statute of limitations until the harm no longer reasonably can be
abated.” Burley, ¶ 4. As requested in the certified question, we addressed the elements
of stabilization, migration, and abatability, but nevertheless maintained a focus on
reasonable abatability as the dispositive factor in determining whether a tort is permanent
or temporary. “The fact that the nuisance at issue could be abated in some fashion
permeates this Court’s historical nuisance cases.” Burley, ¶ 74. Here, we will likewise
14
address stabilization and migration, but will not deviate from the central principle, stated
in Burley, that reasonable abatability defines whether a tort is permanent or temporary.
¶22 Courts have employed different analytical approaches when addressing the role of
migration in application of the continuing tort doctrine. The approaches vary depending
on whether the focus of inquiry is on the conduct of the tortfeasor or the nature of the
injury suffered by the property owner. One approach holds that the statute of limitations
begins to run at the time the defendant stops engaging in the offensive activity and is no
longer adding to the contamination, even if the contamination remains present and
continues to migrate. Village of Milford v. K-H Holding Corp., 390 F.3d 926, 933 (6th
Cir. 2004). Another holds that a trespass or nuisance continues after the defendant has
stopped engaging in the offensive activity only if the contamination continues to migrate,
seeping onto the plaintiffs’ properties within the limitations period preceding the
complaint. Taygeta Corp. v. Varian Assocs., 763 N.E.2d 1053, 1064-65 (Mass. 2002).
Yet another group of cases has found that migration was present and would establish a
continuing tort, but did not conclusively analyze whether a continuing tort could be
established in the absence of either migration or continuing activity. Arcade Water
District v. United States, 940 F.2d 1265, 1268 (9th Cir. 1991); Starrh & Starrh Cotton
Growers v. Aera Evergy, LLC, 153 Cal. App. 4th 583, 584 (2007). Although these cases
addressed migration and continuing activity, they held that reasonable abatability was
ultimately the defining characteristic of a continuing tort. Arcade, 940 F.2d at 1268;
Starrh, 153 Cal. App. 4th at 596. The final approach holds that a trespass or nuisance
continues for as long as the contamination remains on the plaintiff’s property and can be
15
abated, even if the contamination is stable and non-migrating. Hoery, 64 P.3d at 215;
Bradley v. American Smelting & Refining Co., 709 P.2d 782 (Wash. 1985).
¶23 In Burley, we recognized that our jurisprudence differentiated between a
permanent and a temporary nuisance based upon the nature of the injury suffered, noting
that the Court in Graveley described a nuisance as permanent where “its construction and
continuance necessarily result in an injury” and that a nuisance was temporary when the
“injury is not complete” and “the injury depends upon its continuance and uncertain
operation of the seasons or of the forces set in motion by it.” Burley, ¶ 15; Graveley, 240
Mont. at 23; 58 Am. Jur. 2d Nuisances § 296 (2015). A permanent injury is one where
the permanent damage is “reasonably certain.” Blasdel, 196 Mont. at 426. In contrast,
where “damage is not yet permanent,” the nuisance is of a “temporary and continuance
character and gives rise to a separate cause of action each time it causes damage.”
Haugen, 204 Mont. at 514, 665 P.2d at 1135; 39 Am. Jur. 2d, Nuisance, § 141, p. 403;
Nelson, 154 Mont. at 434, 465 P.2d at 324-25. We rejected the reasoning that the
defendant’s cessation of the contaminating activity should trigger the limitations period,
and held that “[a] defendant’s failure to stop the continuing migration of a nuisance onto
a plaintiff’s property, where it reasonably can be stopped, constitutes a continuing
property invasion.” Burley, ¶ 73 (emphasis in original). We recognized that “[a]ll of the
nuisances at issues in these cases would remain, or in other words, be permanent, without
some outside action to abate.” Burley, ¶ 41. In adopting the injury-based approach to
classification of a trespass or nuisance, we focused on the nature of the injury to the land:
16
if the trespass causes a “permanent” injury to the land, then the trespass is not continuing;
if, however, the injury is “abatable,” then the trespass is a continuing one.5
¶24 Based on the formulation of the certified question from the U.S. District Court, we
assumed that contamination from the rail yard continued to migrate onto the plaintiffs’
properties. Burley, ¶ 12. Therefore, we placed Arcade, 940 F.2d at 1265, Starrh, 153
Cal. App. 4th at 583, Hoery, 64 P.3d at 214, and Bradley v. American Smelting &
Refining Co., 709 P.2d 782 (Wash. 1985), within a group of cases that “consider[]
migrating property contamination to constitute a continuing temporary tort,” Burley, ¶ 68,
without addressing the finer distinction between migrating and non-migrating property
contamination. While Burley made clear that migrating contamination would constitute a
continuing tort if reasonably abatable, it did not specifically address whether
non-migrating contamination would do so.
¶25 ARCO argues that this Court should adopt the rule, expressed in Taygeta, that a
continuing trespass or nuisance depends on the continuing migration of contamination.
In Taygeta, 763 N.E.2d at 1056, an electronics manufacturer discharged industrial
chemicals onto the ground and into a stream running through its property. The
manufacturer also used an underground storage tank that was discovered to have leaked
chemicals into the surrounding soil. A treatment system was installed, but contaminated
groundwater continued to flow onto neighboring properties. The Massachusetts Supreme
5
The insistence by the dissent that migration is required to satisfy the “recurring prong”
of the continuous tort doctrine focuses on what the contamination is doing rather than the
nature of the injury and whether it is reasonably abatable, as required by Burley.
17
Judicial Court concluded that the mere continued presence of contamination would not
establish a continuing tort, because “‘a continuing trespass or nuisance must be based on
recurring tortious or unlawful conduct and is not established by the continuation of harm
caused by previous but terminated tortious or unlawful conduct.’” Taygeta, 763 N.E.2d
at 1065 (quoting Carpenter v. Texaco, Inc., 646 N.E.2d 398, 399 (Mass. 1995)). A claim
based on continuing seepage or migration, however, presented a different circumstance
because it involved a series of continuing encroachments on the plaintiff’s property.
Taygeta, 763 N.E.2d at 1065. The court permitted a continuing nuisance claim “based on
the continuing seepage of pollutants that is still occurring within the statute of
limitations.” In Taygeta, however, the court imposed no requirement on the property
owner to timely pursue a claim. The court found a continuing nuisance because the
contamination continued to migrate even though the nuisance was not reasonably
abatable and damages were ascertainable. Under Burley, a reasonably abatable nuisance
with ascertainable damages must be considered permanent and thus commencing the
limitations period for the filing of a claim.6
¶26 Appellants argue that we should instead adopt the approach stated in Hoery and
Bradley, which hold that a trespass or nuisance continues for as long as the offending
substance remains on the property and can be abated. In Hoery, 64 P.3d at 216, the
6
Taygeta essentially stands for the proposition, suggested by the Concurrence, that
migration and stabilization be considered “independent factors,” Concurrence, ¶ 87,
regardless of whether the contamination may be abated. This is inconsistent with our
decision in Burley defining a permanent nuisance as one that is not reasonably abatable.
In Burley, the contamination was migrating, but we instructed the federal court that a jury
must nevertheless assess whether it is reasonably abatable.
18
United States disposed of toxic chemicals, including trichloroethylene (TCE), which
created underground plumes of toxic pollution extending for several miles beyond the
military base where the chemicals were used. The plume continued to migrate even after
operations involving the toxic chemicals were stopped. The plaintiff’s irrigation well
was contaminated, and the Supreme Court of Colorado noted that “TCE remains on
Hoery’s property and enters his groundwater and soil on a daily basis, unabated by the
United States.” Hoery, 64 P.3d at 216. The court observed that “[f]or continuing
intrusions—either by way of trespass or nuisance—each repetition or continuance
amounts to another wrong, giving rise to a new cause of action.” Hoery, 64 P.3d at 218
(citing Fowler V. Harper et al., The Law of Torts § 1.7 (3d ed. 1996)). Reasoning that
“the defendant’s invasion continues if he fails to stop the invasion and remove the
harmful condition,” the court held that the ongoing presence and the continuing migration
of contaminants each constituted a separate continuing tort. Hoery, 64 P.3d at 218, 222.
¶27 In Bradley, 709 P.2d at 791, the Supreme Court of Washington held that a
“trespass continues until the intruding substance is removed” in the context of an
operational copper smelter that continued to generate particulate emissions, which
continued to be deposited on the plaintiff’s property. Relying on the Restatement
definition of a continuing trespass as “an unprivileged remaining on land in another’s
possession,” the court did not consider continued activity or migration to be significant
factors, and did not engage in further analysis. Bradley, 709 P.2d at 791 (citing
Restatement (Second) of Torts § 158 cmt. m (1965)).
19
¶28 We concluded in Burley, ¶ 73, that “[t]he fact that a nuisance continues to migrate
constitutes an important factor under Montana law in evaluating whether the pollution
should be treated as a continuing trespass or nuisance.” Although we considered
migration an important factor, we in no way stated that it was a dispositive one.
Reviewing our case law, we observed again and again the overriding importance of the
question of abatability. In Shors v. Branch, 221 Mont. 390, 720 P.2d 239 (1986), a
locked gate prevented plaintiffs’ use of their easement rights. We found a continuing tort
on the basis that the condition was easily abated by removing the gate. Shors, 221 Mont.
at 397, 720 P.2d at 244. In Burley, ¶ 70, we observed that the tort was continuing in
Shors despite the fact that it “involved a permanent structure that did not move.” In
Knight v. City of Missoula, 252 Mont. at 245, 827 P.2d at 1278, a newly constructed dirt
road increased noise, traffic, and dust on plaintiffs’ property. The dust increased
seasonally, but we observed in Burley, ¶ 70, that “[t]his fact played little role in the
Court’s determination that the nuisance was of a continuing and temporary nature.”
Instead, we found that the nuisance created by the dirt road was continuing because the
city could abate it by such means as paving the road. Burley, ¶ 70; Knight, 252 Mont. at
245, 827 P.2d at 1278.
¶29 Shors and Knight did not involve migration. We went on to discuss several cases
that did involve periodic flooding, rising water, and migrating contamination. Burley,
¶ 71. We noted that with only one exception, “the Court classified each nuisance as
continuing and temporary until abated [and] further noted in each instance that the
nuisance could be abated through some sort of ‘curative action.’” Burley, ¶ 71. In
20
Graveley Ranch, 240 Mont. at 25, 782 P.2d at 375, although lead continued to leach from
the discarded batteries, we did not rely on the fact of migration when we held that the
nuisance would continue until it was abated. In Haugen Trust, 204 Mont. at 510, 665
P.2d at 1133, ornamental ponds constructed in a subdivision caused periodic flooding in
the basement of a residence. The homeowners were able to abate the flooding by
installing a culvert cap, but their neighbors later removed the cap, at which time the
flooding resumed. Haugen Trust, 204 Mont. at 511, 665 P.2d at 1133-34. We observed
that the nuisance created by the removal of the cap was temporary both because the
damage caused by the flooding varied “from occurrence to occurrence” and because the
nuisance was abatable. Haugen Trust, 204 Mont. at 513-14, 665 P.2d at 1135. In Walton
v. City of Bozeman, 179 Mont. 351, 588 P.2d 518 (1978), the city constructed a storm
sewer and relocated an irrigation ditch, causing flooding on the plaintiff’s land. We held
that “the damages caused here were a continuing nuisance and as such were within the
applicable statute of limitations, because at all times, the City could have abated the
nuisance by taking curative action. Since the nuisance was so terminable, it cannot be
deemed to be a permanent nuisance . . . .” Walton, 179 Mont. at 356, 588 P.2d at 521. In
Nelson v. C & C Plywood Corp., 154 Mont. 414, 465 P.2d 314 (1970), a plywood
manufacturer discharged glue waste into a drainage ditch, which contaminated the water
supply of the adjacent farm. We held that the nuisance was temporary because it was
terminable. Nelson, 154 Mont. at 435, 465 P.2d at 325 (quoting Harrisonville v. W.S.
Dickey Clay Mfg. Co., 289 U.S. 334, 53 S. Ct. 602 (1932)).
21
¶30 The only case in which we have found a continuing property invasion without
reference to its abatability is Blasdel. In that case, plaintiffs’ farm was damaged when
construction of the Kerr Dam on Flathead Lake caused the water table to rise. Blasdel,
196 Mont. at 419, 640 P.2d at 891. The dam was completed in 1939, and plaintiffs first
noticed damage to their land in 1941. Blasdel, 196 Mont. at 420, 640 P.2d at 892. For a
number of years after, however, the water table continued to fluctuate. Blasdel, 196 at
422, 640 P.2d at 892. The water table did not stabilize until 1960, at which time
plaintiffs filed suit. Blasdel, 196 at 422, 640 P.2d at 892. We concluded that the injury
was temporary until the water table stabilized, at which point it became permanent.
Blasdel, 196 Mont. at 426, 640 P.2d at 894. Abatement of the injury was never addressed
in Blasdel, an inverse condemnation case, because “inverse condemnation by its very
nature contemplates a permanent taking of property.” Burley, ¶ 24. More importantly,
however, our inquiry in Blasdel concerned the nature of the injury to the property owners,
recognizing that the “source of the entire claim” was the “overflow due to rises in the
level of the river,” which we identified as a continuing event. Blasdel, 196 Mont. at 425,
640 P.2d at 894. While the dam itself was permanent, the relevant issue for statute of
limitations purposes was determining when the rising groundwater had stabilized
sufficiently to assess the permanent injury for purposes of the condemnation proceedings.
Blasdel, 196 Mont. at 425-26, 640 P.2d at 894. “It made little sense to require Blasdels to
file an inverse condemnation action until they could determine the extent of the taking of
their property worked by the rising groundwater tables caused by the Kerr Dam.” Burley,
22
¶ 24. Blasdel did not present a claim of nuisance or trespass. Blasdel, 196 Mont. at 419,
640 P.2d at 891.
¶31 Our continuing nuisance and trespass cases have consistently considered
reasonable abatement to be a determinative factor. Burley, ¶ 71. Our consideration of
migration, on the other hand, has been inconsistent. Compare Shors, 221 Mont. at 397,
720 P.2d at 243, and Knight, 252 Mont. at 245, 827 P.2d at 1278, with Haugen Trust, 204
Mont. at 513-14, 665 P.2d at 1135. Nevertheless, even in those cases where migration
was present, we maintained our focus on the question of whether the injury could be
abated. E.g., Graveley Ranch, 240 Mont. at 25, 782 P.2d at 375; see also Arcade, 940
F.2d at 1268; Starrh, 153 Cal. App. 4th at 596. In Burley, ¶ 51, we also rejected the
notion that stabilization of the contamination should provide a bright-line rule on whether
to classify a nuisance or trespass as continuing. While “stabilization” in Burley referred
to the fact that the tortfeasor was no longer adding to the nuisance or trespass, our
discussion of stabilization relied on the same cases as our discussion of migration, and
our analysis overlapped in many respects. See Burley, ¶ 41 (discussing stabilization of
migrating waters in Blasdel and Haugen Trust). Just as “[a]lleged ‘stabilization’ of the
nuisance, on its own, rarely determines permanency of the injury,” Burley, ¶ 41, neither
will migration, on its own, determine permanency of the injury. Again, “[w]e discern one
consistent theme in reviewing the historic decisions of this Court that evaluate whether a
nuisance should be classified as temporary or permanent: whether the injury is
sufficiently complete to ascertain permanent damages.” Burley, ¶ 41.
23
¶32 Finally, our decision in Burley to focus on the nature of the injury and whether it is
reasonably abatable is consistent with the principle that statutes of limitations ought to
promote basic fairness and allow the parties a degree of certainty and predictability by
which their actions may be guided. Burley, ¶ 16. If we were to regard continued
migration as determinative of the limitations period, liability for contamination would not
depend on the actions of the tortfeasor or the diligence of the property owner. Rather,
continued liability would be determined by factors not within the control of the parties,
such as soil characteristics or the flow of groundwater. We decline to leave the operation
of the law to chance. While migration remains an “important factor,” Burley, ¶ 73, it is
not determinative or required. It is instead among the factors, such as the type of
property affected and the severity of the contamination, to be considered when
determining the nature of the injury and whether a trespass or nuisance can reasonably be
abated. See Burley, ¶ 89.
¶33 Although we have considered other factors, such as migration, in defining a
continuing trespass or nuisance, we have consistently evaluated those factors in light of
the reasonable abatability of the condition. In Burley, ¶ 73, while concluding that
migration “constitutes an important factor,” we observed that “[a] defendant’s failure to
stop the continuing migration of a nuisance onto a plaintiff’s property, where it
reasonably can be stopped, constitutes a continuing property invasion.” Further, in our
discussion of abatability, we did not question whether a nuisance or trespass must be
abatable to be regarded as continuing. See Burley, ¶¶ 74-98. Indeed, the requirement of
abatability permeated every aspect of our analysis. See Burley, ¶¶ 24-41, 51, 60, 70-71,
24
73. Our discussion of abatability was focused only on the standard by which abatability
should be measured. Burley, ¶ 89. We recognized that establishing reasonable
abatability as the defining characteristic of a continuing tort would “further accomplish[]
the companion goal of bringing finality to a dispute for purposes of the statute of
limitations.” Burley, ¶ 88. If the condition can be abated, the reasonable abatability
standard encourages the tortfeasor to perform the abatement in order to avoid successive
actions. When the condition cannot be abated, the injured party may instead recover all
of their damages in a single action, promoting finality. Starrh, 153 Cal. App. 4th at 598.
Thus, we reaffirm the conclusion reached in Burley, ¶ 98: “When no further abatement is
reasonable, the injury is complete, and the injury is permanent.”
¶34 2. Whether genuine questions of material fact exist regarding the reasonableness
of abating the contamination on Appellants’ properties.
¶35 We turn now to the third factor identified in Burley: reasonable abatability. We
observed that consideration of the ease with which a nuisance could be abated “permeates
this Court’s historical nuisance cases.” Burley, ¶ 74.7 We rejected the arguments that a
nuisance or trespass that is not “readily or easily abatable” must be classified as
permanent. Burley, ¶ 82. Recognizing that we had previously declined to cap restoration
damages at the market value of the property, we noted that limiting the continuing tort
doctrine to readily or easily abatable conditions would similarly provide potential
tortfeasors with “‘an incentive to disregard or discount risks of contamination or
7
While the language in Burley primarily addressed nuisance, we stated that “references
to nuisance in this Opinion apply with equal force to trespass claims as well.” Burley,
¶ 14.
25
pollution to neighboring property owners.’” Burley, ¶ 87 (quoting Sunburst Sch. Dist.
No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 46, 338 Mont. 259, 165 P.3d 1079). Instead, we
adopted the rule that a nuisance or trespass may be continuing if it is “reasonably
abatable.” Burley, ¶ 89. We described the reasonable abatability standard as follows:
Courts should evaluate whether it would be reasonable for the tortfeasor to
abate the harm taking into account all factors, including the ease with
which the harm could be abated. Other factors include the cost of
abatement, the type of property affected, the severity of contamination, and
the length of time necessary to remediate such pollution.
Burley, ¶ 89. We now add that whether the contamination continues to migrate is
relevant to the ease of abatement, the cost of abatement, the severity of the
contamination, and the length of time necessary for abatement, and are therefore among
the factors to be considered when determining whether a nuisance or trespass is
reasonably abatable. Further, potential abatement must “be an actual possibility within
reasonable capabilities of the parties.” Burley, ¶ 90 (quoting Burk Ranches v. State, 242
Mont. 300, 306-07, 790 P.2d 443, 447 (1990)).
¶36 We then stated that the “reasonableness question must be decided by the trier of
fact.” Burley, ¶ 91. Our discussion in Burley regarding the necessity of making factual
determinations prior to a ruling on the statute of limitations bears repeating here:
We recognize the potential inconvenience to a district court of having the
jury resolve factual disputes that implicate a potentially dispositive statute
of limitations affirmative defense. A district court may be required to hold
in abeyance any ruling on the statute of limitations affirmative defense until
the jury first determines whether the nuisance reasonably can be abated and
thereby the nuisance qualifies as a continuing tort. The court would
address whether the limitations period had run only if the plaintiff fails to
establish the elements of a continuing tort, as determined by the jury . . . .
26
Burley, ¶ 92. We later noted that although reasonable abatability is a jury question, “[t]he
district court retains the ability to grant summary judgment where the plaintiff fails to
establish a genuine issue of fact.” Burley, ¶ 95. We acknowledged that this threshold
would likely be cleared in most cases, but pointed to Mangini v. Aerojet-General Corp.,
912 P.2d 1220, 1226 (Cal. 1996) (“Mangini II”), as an example of a case in which the
plaintiff failed to establish sufficient evidence of the reasonability of a proposed
abatement. In Mangini II, “the evidence clearly showed that no one knows how bad the
contamination is or how to remedy it—indicating an absence of substantial evidence of
abatability.” 912 P.2d at 1226. The plaintiffs conceded there was not enough known
about the site to assess possible remedial measures, and the California Supreme Court
concluded they “did not come anywhere close to showing even an estimate of the cost of
abatement.” Mangini II, 912 P.2d at 1226-27.
¶37 Finally, we rejected the argument that the plaintiff must demonstrate the
possibility of complete abatement. Burley, ¶ 96. We held instead that a nuisance is
abatable if it can be reduced. Burley, ¶ 97 (citing Beatty v. Washington Metropolitan
Area Transit Authority (WMATA), 860 F.2d 1117, 1124 (D.C. Cir. 1988)). We reasoned:
A tortfeasor should not avoid liability for his contamination simply because
his misdeeds cannot be undone completely. The degree of abatement
determines instead whether permanent damages can be ascertained. When
no further abatement is reasonable, the injury is complete, and the injury is
permanent.
Burley, ¶ 98.
¶38 The remediation plan proposed by Appellants’ expert, Kane, requires excavating
the top two feet of soil from Appellants’ properties—approximately 650,000 tons, to be
27
disposed of at a waste management facility in Spokane, Washington—and replacing it
with clean fill. Kane’s proposed remediation of shallow groundwater involves
installation of an underground passive reactive barrier (PRB) approximately 8,000 feet
long. Estimates of the cost of the proposed abatement range from $38 million to $101
million, depending largely on where the contaminated soil is disposed, and the project
would take nearly two years.
¶39 The rebuttal report prepared by David Folkes, a geotechnical and environmental
consultant, one of ARCO’s retained experts, argues that remediation could be limited
only to those properties where arsenic concentrations in the soil exceed the
EPA-approved residential threshold of 250 ppm. Folkes also states that ARCO has
already offered to remediate those portions of Appellants’ residential properties
exceeding 250 ppm, and that the cost of the remediation is estimated at $82,500. Pasture
land exceeding 250 ppm could be remediated at an estimated cost of $1,026,000. Folkes
states that although the EPA threshold for pasture land is 1,000 ppm, ARCO has also
already offered to remediate pasture land exceeding 250 ppm. Finally, Folkes claims that
if remediation of shallow groundwater is necessary, a gravity drain could be installed at
lower cost than the PRB proposed by Kane. In Folkes’s opinion, however, neither a PRB
nor a gravity drain would be effective in reducing arsenic concentrations in the shallow
groundwater below Appellants’ properties.
¶40 ARCO argues that Appellants’ proposed remediation is excessive because there is
no evidence that the level of contamination on the properties is “severe” or that the
condition of the properties would actually be improved by the proposed abatement.
28
ARCO claims that not only the cost of remediation, but also the disruption to neighboring
properties in Opportunity and surrounding communities would be unreasonable. Despite
this argument, ARCO has offered to conduct its own remediation efforts. This is similar
to the circumstances addressed by the D.C. Circuit in Beatty. In that case, Defendant
WMATA moved for summary judgment claiming vibrations from a subway tunnel near
Beatty’s property constituted a permanent nuisance. Beatty, 860 F.2d at 1119. In
response, Beatty referred to a report generated by WMATA’s own acoustical consultant
stating that the vibrations could be reduced. Beatty, 860 F.2d at 1119. Because the report
was clearly known to WMATA, the court concluded that “WMATA could not properly
have asserted there were no genuine issues for trial.” Beatty, 860 F.2d at 1121-22. In
this case, Appellants have proposed one plan with a maximum cost of $101 million;
ARCO has proposed alternatives that would partially abate the contamination on some of
Appellants’ properties at a minimum cost of $82,500. ARCO has not met its summary
judgment burden of demonstrating the complete absence of any genuine issue of material
fact regarding the reasonableness of abatement. Lorang, ¶ 37.
¶41 We have stated that whether contamination continues to migrate may be relevant
to a jury’s determination of whether the contamination can reasonably be abated. In its
order granting summary judgment in favor of ARCO, the District Court concluded that
Appellants had failed to identify any evidence establishing a material factual dispute
regarding whether the contamination continues to migrate, potentially foreclosing further
consideration of the issue by a trier of fact. While migration is not the dispositive factor
in determining whether a tort is continuing, migration may be material for a jury to
29
consider in determining whether abatement is reasonable under the particular
circumstances of the contamination. On appeal, ARCO continues to assert that
Appellants have offered no evidence of migration, and that the evidence undisputedly
shows the contamination has not continued to migrate into or through the soil or
groundwater. Appellants, on the other hand, assert that leaching and lateral flow of the
arsenic contamination on their properties is continuing. Migration includes any vertical
or horizontal movement of contaminants, including leaching, seepage, or percolation.
See United States v. CDMG Realty Co., 96 F.3d 706, 715 (3d Cir. 1996); Hoery, 64 P.3d
at 228.
¶42 The primary evidence offered by Appellants is the expert report prepared by
geologist and hydrologist John Kane. Kane developed a remediation plan for Appellants’
properties that includes installation of an underground PRB. The PRB would be installed
up-gradient from Appellants’ properties. Implicit in Kane’s plan to install a PRB is the
assertion that a PRB is necessary because contaminated groundwater is moving
down-gradient. Kane cites a report prepared for ARCO in 1996, which identified two
sources of dissolved arsenic in the groundwater, one of which was “contaminated soil due
to widespread deposition of smelter emissions.” Kane also refers to potential “loading
sources for metals to the aquifer” including “leaching of metals from wastes in railroad
grade material, from contaminated soils, and from contaminated sediment of the Blue
Lagoon.” Kane also refers to a monitoring well “downgradient of Yellow Ditch”
containing “significantly higher arsenic” than groundwater elsewhere in the area. Kane
states that the elevated arsenic concentration in the area of the monitoring well may come
30
from contaminated sediments in Yellow Ditch, contaminated water flowing into Yellow
Ditch, or both.
¶43 ARCO offers the rebuttal report from Folkes. Folkes refers to studies concluding
“that seepage from creeks and ditches in the site area as well as flood irrigation has
caused arsenic to migrate to the groundwater table in the area . . . known as South
Opportunity.” Folkes argues that installation of a PRB would not be an effective means
of remediation because “arsenic in shallow groundwater is the result of a variety of
factors, including background and interaction with shallow soils and seepage from
irrigation ditches and streams, which would occur on both sides of any wall installed in
the area.”
¶44 The record presented here does not persuade us that ARCO, as the party moving
for summary judgment, met its burden of “making a ‘clear showing as to what the truth
is’” regarding a complete absence of migration. Lorang, ¶ 37 (quoting Toombs, 256
Mont. at 284, 846 P.2d at 266). The competing expert reports offered by the parties are
sufficient to demonstrate that the issue of whether contamination continues to migrate is
appropriate for resolution by a trier of fact. Further, removing this evidence from the
jury’s consideration would necessarily present them with incomplete information about
the characteristics and nature of the contamination. The jury may consider evidence of
migration as part of its determination of whether the contamination is reasonably
abatable.
¶45 Further, ARCO argues that abatement is unreasonable because Appellants cannot
perform the proposed remediation of their properties due to EPA oversight. This
31
argument is also the subject of two affirmative defenses raised by ARCO, contending that
Appellants’ claims are in conflict with the remediation plan selected by the EPA and are
barred by CERCLA; ARCO’s two motions for summary judgment on Appellants’ claim
for restoration damages, under both CERCLA and Montana law; and Appellants’
cross-motion for summary judgment on ARCO’s affirmative defenses. These matters
have not yet been addressed by the District Court, and we will not address them here.
Our discussion is limited to the statute of limitations issue. With respect to the statute of
limitations, we must determine only if there is a genuine question of material fact
regarding whether the nature of the contamination is such that it can reasonably be abated
by some means. The argument raised by ARCO does not address whether the
contamination itself is of a type that can reasonably be abated, but raises the separate
question of who may perform that abatement. This argument goes to the appropriateness
of restoration damages, and is properly decided in the context of the several pending
motions on that issue. It would be premature and inappropriate for us to decide at this
stage whether Appellants would be able to use a hypothetical award of restoration
damages to actually conduct their proposed abatement. We conclude that there are
genuine issues of material fact regarding whether the contamination on Appellants’
properties can reasonably be abated. The question of reasonable abatability must be
decided by the trier of fact. Burley, ¶ 91.
¶46 As one final note on damages, we recall that application of the continuing tort
doctrine allows recovery of damages incurred during the statutory period immediately
preceding the filing of the complaint. Graveley Ranch, 240 Mont. at 23, 782 P.2d at 373.
32
For nuisance and trespass, this period is two years. Section 27-2-207, MCA; Burley,
¶ 16. ARCO claims Appellants have produced no evidence of damages sustained during
this period. Appellants have claimed, among other things, “reasonable compensation for
loss of use and enjoyment of real property,” and “reasonable compensation for
annoyance, inconvenience, and discomfort . . . .” As we have observed, “[w]here there
has been trespass to land, damages for the discomfort and annoyance to the occupant, in
addition to damages to the land or for the loss of use of the land itself, have long been
recognized.” French v. Ralph E. Moore, Inc., 203 Mont. 327, 333, 661 P.2d 844, 847
(1983). Appellants submitted evidence, in the form of their affidavits regarding their use
of their properties, sufficient to defeat summary judgment on the question of their
subjective annoyance, inconvenience, and discomfort as a result of the contamination on
their properties. Given that the issue before us is limited to the statute of limitations, we
need not further address the question of available damages should Appellants succeed on
their claims. We therefore reverse the order of summary judgment to the extent it
requires evidence of continued migration of contaminants, concludes that there is no
genuine issue of material fact as to continued migration, and concludes that Appellants
have failed to identify facts showing that their proposed abatement was reasonable.
¶47 3. Whether the continuing tort doctrine can be applied to claims other than
nuisance and trespass.
¶48 In addition to alleging continuing nuisance and trespass, Appellants have filed
claims for strict liability, negligence, unjust enrichment, and wrongful occupation of real
property. They argue that the continuing tort doctrine should apply to each of these
33
causes of action.8 Appellants argue that “[w]hen a party causes an object to enter the
property of another, through negligent conduct or through abnormally dangerous activity
giving rise to strict liability, the party is liable for trespass.” Further, they argue that the
principle of “holding a responsible party continuously liable for the failure to remove
abatable pollution from the property of another,” which underlies their nuisance and
trespass claims, “applies equally to [Appellants’] wrongful occupation and unjust
enrichment claims.”
¶49 We begin with Appellants’ claim of strict liability. In alleging strict liability for
the conduct of an abnormally dangerous activity, Appellants claim “[t]he manner in
which [ARCO] mined, milled, smelted, used, disposed, and released such materials at
their facilities is and was inappropriate . . . .” Undisputedly, such “mining, milling,
smelting, use, disposal, and release” of materials ceased decades ago. A claim based
upon strict liability for the conduct of an abnormally dangerous activity, however, does
not mean that the defendant is liable simply for the conduct of the activity; it means that
the defendant is liable for harm resulting from the activity, even if the defendant acted
with reasonable care. Matkovic v. Shell Oil Co., 218 Mont. 156, 159, 707 P.2d 2, 3-4
(1985). Strict liability is not an injury, but a theory by which a plaintiff may attempt to
establish a defendant’s liability for an injury. Hoery, 64 P.3d at 218 (“Liability for
nuisance may rest upon any one of three types of conduct: an intentional invasion of a
8
Appellants’ complaint also includes a claim of constructive fraud, but they have not
argued that the continuing tort doctrine should apply to this cause of action. Their claim
of constructive fraud is timely only if the discovery rule, discussed later in this Opinion,
is applicable.
34
person’s interest; a negligent invasion of a person’s interest; or, conduct so dangerous to
life or property and so abnormal or out-of-place in its surroundings as to fall within the
principles of strict liability.”). If the alleged injury is one which may be considered
continuing, such as nuisance or trespass, the plaintiff may allege an appropriate theory of
liability associated with that injury.
¶50 The same is true of Appellants’ claim of negligence. Appellants allege that ARCO
was negligent in that it failed to control and contain toxic substances generated by its
operations; failed to prevent toxic materials from migrating to neighboring properties;
failed to exercise reasonable care to contain toxins once it knew or should have known it
polluted a large area; failed to exercise reasonable care to prevent the escape of toxins;
failed to remove the toxic substances from Appellants’ properties; and failed to warn
Appellants of the scope of and dangers posed by the contamination. Negligence, like
strict liability, is not an injury but a theory of establishing liability for an injury. Barnes
v. City of Thompson Falls, 1999 MT 77, ¶¶ 16-17, 294 Mont. 76, 979 P.2d 1275
(discussing types of nuisance, including nuisance caused by negligence); see also Hoery,
64 P.3d at 218. As with strict liability, if the injury is of a nature that may be considered
continuing, the plaintiff may allege an appropriate theory of the defendant’s liability for
that injury.
¶51 We next address Appellants’ claim of unjust enrichment. Appellants claim that
ARCO’s unauthorized use of their property to “dispose of, deposit, and store toxic
substances” has benefitted ARCO monetarily, to the detriment of Appellants. Unjust
enrichment is traditionally conceived of as an implied contract theory requiring payment
35
for a benefit conferred. N. Cheyenne Tribe v. Roman Catholic Church, 2013 MT 24,
¶ 29, 368 Mont. 330, 296 P.3d 450. More broadly speaking, “‘[a] person is enriched if he
has received a benefit, and he is unjustly enriched if retention of the benefit would be
unjust. Unjust enrichment of a person occurs when he has and retains money or benefits
which in justice and equity belong to another.’” Lawrence v. Clepper, 263 Mont. 45, 53,
865 P.2d 1150, 1156 (1993) (quoting 66 Am. Jur. 2d Restitution and Implied Contracts
§§ 3-4 (1973)).
¶52 The Restatement (Third) of Restitution and Unjust Enrichment further provides
that one who “obtains a benefit by an act of trespass or conversion, by comparable
interference with other protected interests in tangible property, or in consequence of such
an act by another, is liable in restitution to the victim of the wrong.” Restatement (Third)
of Restitution and Unjust Enrichment § 40 (2011). Unjust enrichment may arise from
interference with real property when the defendant has made valuable use of the
plaintiff’s property without paying for it. Restatement (Third) of Restitution and Unjust
Enrichment § 40 cmt. c. This is exactly the circumstance alleged here.
¶53 Ordinarily, the period of limitations for an unjust enrichment claim begins when
all elements of the claim exist or have occurred. N. Cheyenne Tribe, ¶ 41 (citing
§ 27-2-102(2), MCA). We have not previously considered application of the continuing
tort doctrine to claims of unjust enrichment. Other courts have reached varying results,
depending upon the circumstances of each case. For example, in Stratton v. Royal Bank
of Canada, 712 S.E.2d 221, 229 (N.C. Ct. App. 2011), the Court of Appeals of North
Carolina declined to apply the continuing tort doctrine to the plaintiff’s claim that the
36
bank, after a series of mergers and exchanges, failed to recognize stock certificates issued
to her mother some 80 years earlier. Although the plaintiff alleged that failure to
recognize the stock certificates had continually deprived her of shareholder rights, the
court concluded that these were not continuing violations, but the continuing effects of a
single occurrence. Stratton, 712 S.E.2d at 230. In another case, the same court applied
the continuing tort doctrine to a claim of unjust enrichment where the plaintiff alleged a
recurring failure to make monthly salary payments. Marzec v. Nye, 690 S.E.2d 537, 542
(N.C. Ct. App. 2010). In that case, refusal to pay the salary month after month
constituted a series of continual unlawful acts. Marzec, 690 S.E.2d at 542. Noting the
divergent outcomes of these cases, the North Carolina court observed that application of
the continuing tort doctrine requires consideration of the “particular policies of the statute
of limitations in question, as well as the nature of the wrongful conduct and harm
alleged.” Stratton, 712 S.E.2d at 229. We agree that case-specific considerations should
play a role in our analysis, while keeping in mind the overarching policy goals of both
statutes of limitations and the continuing tort exception.
¶54 The distinguishing characteristic of a continuing tort is that it can be reasonably
abated. In this case, even assuming, as Appellants claim, that the alleged nuisance and
trespass can be reasonably abated by removal of the contamination on their properties,
such removal would not abate or remedy the alleged unjust enrichment of ARCO. The
only abatement possible for unjust enrichment under the circumstances of this case is to
pay monetary restitution for the value of ARCO’s use of the property over the preceding
years. If the continuing tort doctrine were applied in cases where abatement is only
37
possible through the payment of money for past wrongs, any suit seeking damages would
arguably qualify as a continuing tort. This is not consistent with the policies underlying
the doctrine as an exception to statutes of limitation. We decline to apply the continuing
tort doctrine to Appellants’ claim of unjust enrichment under the circumstances of this
case.
¶55 Appellants’ final cause of action is for wrongful occupation. The District Court
applied the two-year statute of limitations applicable to commencement of an action upon
a liability created by statute. Section 27-2-211, MCA. The District Court presumably
reached this conclusion based on § 27-1-318, MCA, which provides the measure of
damages to be applied in a case of wrongful occupation:
The detriment caused by the wrongful occupation of real property in cases
not otherwise provided for in this code is deemed to be the value of the use
of the property for the time of such occupation, not exceeding 5 years next
preceding the commencement of the action or proceeding to enforce the
right to damages, and the costs, if any, of recovering the possession.
¶56 The application of a two-year statute of limitations, as set forth in § 27-2-211,
MCA, would, in most cases, conflict with a provision allowing recovery of damages for
the preceding five years as set forth in § 27-1-318, MCA. Further, a statute that
establishes the measure of damages does not establish the underlying liability. See 37
C.J. Limitations of Actions § 123 (1925) (The phrase ‘liability created by statute’ means a
liability which would not exist but for the statute . . . .”). For example, Title 27 includes a
number of statutes providing the measure of damages for various causes of action based
on contractual obligations. Sections 27-1-311 (breach of contract), -312 (breach of
obligation to pay money), -314 (breach of agreement to convey real property), -315
38
(breach of agreement to buy real property), MCA. In such cases, it is the contract, not the
statute establishing the measure of damages, which creates liability.
¶57 Claims of wrongful occupation have traditionally arisen in response to a claim of
adverse possession, or in other circumstances where one person has occupied or
possessed the land of another. Weter v. Archambault, 2002 MT 336, ¶ 32,
313 Mont. 284, 61 P.3d 771 (affirming district court conclusion that refusal to sign
quit-claim deeds was not “wrongful occupation” in the sense recognized by previous
cases); Goodover v. Lindey’s, Inc., 255 Mont. 430, 434, 843 P.2d 765, 767 (1992)
(wrongful occupation in boundary dispute where defendant constructed restroom and
underground storage tanks that occupied the disputed area); Smithers v. Hagerman, 244
Mont. 182, 797 P.2d 177 (1990) (claim of adverse possession defeated and damages for
wrongful occupation awarded where garage and septic system encroached on neighboring
property); Martin v. Randono, 175 Mont. 321, 329, 573 P.2d 1156, 1161 (1978) (plaintiff
who maintained residence on the property from 1959 through 1971 conceded liability for
wrongful occupation when claim of adverse possession failed); Pritchard Petroleum Co.
v. Farmers Coop. Oil & Supply Co., 121 Mont. 1, 4, 190 P.2d 55, 57 (1948) (damages
awarded for wrongful occupation where “respondent entered upon the property and took
possession of all of it and used and occupied the premises” from 1935 until 1942).
¶58 Our cases on wrongful occupation have not directly addressed the statute of
limitations issue. A review of our cases reveals, however, that the claim is not considered
time-barred even if it was filed many years after the occupation first began. Martin, 175
Mont. at 323, 573 P.2d at 1158 (1978) (claim filed in 1972, where permissive use of the
39
land ended as early as 1965); Pritchard, 121 Mont. at 4-6, 190 P.2d at 57 (claim filed in
1941, where occupation began in 1935). The language of § 27-1-318, MCA, limiting
damages to the five years immediately preceding the commencement of the cause of
action, also suggests that a cause of action could be brought more than five years after a
wrongful occupation of real property has begun—there would be no need, otherwise, to
limit the period of recovery. The accrual of a claim of wrongful occupation is not the
first date of occupation.
¶59 We have not had occasion to consider accrual of such a claim after the occupation
has ended, for the practical reason that a claim of wrongful occupation is so often brought
in an effort to regain the property from the party wrongfully in possession. Indeed, that is
the case here, where Appellants claim ARCO continues to wrongfully occupy their
properties by allowing the ongoing presence of contamination. In addressing the statute
of limitations issue, we are not asked to address whether Appellants’ claim that ARCO
continues to “occupy” their properties through the continued presence of contaminants is
“‘wrongful occupation’ in the sense that our previous cases have recognized it.”
Archambault, ¶ 32. We conclude only that the claim may be considered continuing. The
District Court erred in applying the two-year statute of limitations found in § 27-2-211,
MCA, given the statutory provisions of § 27-1-318, MCA, limiting recovery to the
five-year period preceding commencement of the action.
¶60 4. Whether the facts constituting Appellants’ claims were concealed or
self-concealing, or whether ARCO took action preventing Appellants from
learning those facts.
40
¶61 The fact that a party does not know that he or she has a claim, whether because he
or she is unaware of the facts or unaware of his or her legal rights, is usually not
sufficient to delay the beginning of the limitations period. Section 27-2-102(2), MCA;
State ex rel. Egeland v. Cut Bank, 245 Mont. 484, 488, 803 P.2d 609, 611-12 (1990);
Bennett v. Dow Chem. Co., 220 Mont. 117, 120-21, 713 P.2d 992, 994 (1986). The
discovery rule constitutes an exception to this general principle, stating that if the facts
constituting the claim are concealed or self-concealing in nature, or if the defendant has
acted to prevent the injured party from discovering those facts, the period of limitations
does not begin to run until the injured party has discovered, or in the exercise of due
diligence should have discovered, both the injury and its cause. Section 27-2-102(3),
MCA; Draggin’ Y Cattle Co. v. Addink, 2013 MT 319, ¶ 21, 372 Mont. 334, 312 P.3d
451; Bennett, 220 Mont. at 121, 713 P.2d at 995. Further, the statute of limitations
pertaining to actions based on fraud specifically provides that such a claim does not
accrue until discovery of the facts constituting the fraud. Section 27-2-203, MCA.
Reading §§ 27-2-102 and -203, MCA, together, we have concluded that “the statute of
limitations for an action based on fraud begins when the fraud occurs unless the facts
which form the basis for the allegation are, by their nature, concealed.” Cartwright v.
Equitable Life Assurance Socy., 276 Mont. 1, 14, 914 P.2d 976, 985 (1996).
¶62 The presence of latent disease or the nondisclosure of information are classic
examples of injuries that may be, by their nature, self-concealing. Kaeding v. W.R. Grace
& Co., 1998 MT 160, ¶ 17, 289 Mont. 343, 961 P.2d 1256; Blackburn v. Blue Mountain
Women’s Clinic, 286 Mont. 60, 79, 951 P.2d 1, 12 (1997). An injury that is not apparent
41
to the layperson because of its complexity, and which can ultimately only be discovered
by professional analysis, may also be considered self-concealing. Draggin’ Y, ¶ 23;
Stanley L. & Carolyn M. Watkins Trust v. Lacosta, 2004 MT 144, ¶ 42, 321 Mont. 432,
92 P.3d 620. This principle is applied in professional malpractice cases, where we have
held that a party is entitled to rely on professional advice without the burden of hiring a
second expert to monitor the work of the first. Watkins Trust, ¶ 42.
¶63 The statute of limitations may also be tolled where the plaintiff is aware of his or
her injury, but is unable to discern the cause of that injury despite the exercise of due
diligence. Nelson v. Nelson, 2002 MT 151, ¶ 18, 310 Mont. 329, 50 P.3d 139; Hando v.
PPG Indus., 236 Mont. 493, 502, 771 P.2d 956, 962 (1989). An example of this is where
the symptoms of an illness are immediately apparent, but the illness is diagnosed as the
result of chemical exposure only years later. Nelson, ¶ 18; Hando, 236 Mont. at 502, 771
P.2d at 962. This is true even where plaintiffs have asserted long-standing beliefs or
suspicions regarding the link between the symptoms and their ultimate cause. Nelson,
¶ 18; Hando, 236 Mont. at 501, 771 P.2d at 962 (tolling statute of limitations until
plaintiff’s suspicions regarding cause of her injury were confirmed by medical diagnosis).
¶64 Although the plaintiff’s mere suspicions will not trigger the running of the
limitations period, the plaintiff need not have actual and complete knowledge of the facts
constituting the claim in order for the claim to accrue. Mobley v. Hall, 202 Mont. 227,
233, 657 P.2d 604, 607 (1983) (construing § 27-2-203, MCA). Under the discovery rule,
the claim accrues when the plaintiff is given notice or information that would prompt a
reasonable person to conduct further inquiry. Mobley, 202 Mont. at 232, 657 P.2d at 607.
42
If the plaintiff is given such notice and yet fails to exercise reasonable diligence, the
limitations period will not be tolled. Kaeding, ¶ 27. Thus, even if the facts constituting a
claim are otherwise self-concealing in nature, if the plaintiff has received notice of a
possible claim and failed to act diligently in pursuing that claim, the action may be
time-barred. Kaeding, ¶ 27. Where material factual questions exist as to whether the
facts constituting the claim were concealed or self-concealing, whether the defendant
acted to prevent discovery of those facts, or whether the plaintiff exercised due diligence,
those questions must be resolved by the trier of fact. Johnston v. Centennial Log Homes
& Furnishings, Inc., 2013 MT 179, ¶ 36, 370 Mont. 529, 305 P.3d 781; Burley, ¶¶ 92-95
(factual disputes implicating affirmative defense based on statute of limitations to be
resolved by jury).
¶65 Appellants argue the discovery rule should be applied for two reasons: first,
because their claims are self-concealing in nature; and second, because ARCO
represented that the community of Opportunity was “clean,” thereby discouraging
Appellants from conducting further inquiry. In support of this first point, Appellants
argue that although they were aware of smelter operations, the resulting discharge of
arsenic and other materials onto area properties, and highly-publicized environmental
remediation plans, they had no way of knowing the extent of contamination on each of
their individual properties. Citing Blackburn, 286 Mont. at 79, 951 P.2d at 12, they claim
that discovery of the pollution on their properties would have required specialized testing,
and therefore should be considered self-concealing. Further, Appellants’ claim of
constructive fraud is based on ARCO’s alleged failure to fully disclose the extent of the
43
contamination, and the non-disclosure of information may also be considered
self-concealing. Blackburn, 286 Mont. at 79, 951 P.2d at 12.
¶66 The facts of this case are distinguishable from Blackburn, in which we observed
that the plaintiff “had no reason to suspect” that a medical provider had given her
inaccurate information. Blackburn, 286 Mont. at 79, 951 P.2d at 12. Here, many of the
Appellants admitted that they were aware of the possibility, even likelihood, their
properties had been harmed. Although it is true that “mere suspicion may not constitute
discovery,” information sufficient to “lead a prudent [person] to inquiry or action” is
enough to trigger the running of the limitations period. Mobley, 202 Mont. at 233, 657
P.2d at 607. Here, the record shows that Appellants had far more than “mere suspicion”
that their properties were contaminated, and should reasonably have been prompted to
further inquiry or action.
¶67 The history of arsenic contamination in Opportunity, Anaconda, and surrounding
communities is well-known to residents of the area. As Appellant Robert Phillips
poignantly stated about his childhood in Opportunity: “We grew up in arsenic.” Ilona
Schlosser described the pervasive public knowledge of contamination in the area: “When
you first start to think about contamination—I think you live with it. I think you’re
always thinking about it. I don’t think that ever leaves your—I think you’re in the eye of
the smelter. You’re in the base camp. You always know there’s a potential problem. . . .
I mean you’d have to be a moron not to figure that out.” Zane Spehar recalled that he had
been aware of the possibility of contamination for many years, reasoning: “Well, with all
the contamination around in that area, I mean how can it not be in my yard?” Other
44
Appellants, who described witnessing cleanup efforts at their neighbors’ properties or in
their communities over the years, had similar sentiments.
¶68 Public documents and news coverage from the last few decades bear out the
assertion that the potential for arsenic contamination on residential properties was
common knowledge in the area. A 1985 article in Butte’s daily newspaper, The Montana
Standard, announced that a team from the Centers for Disease Control was testing arsenic
levels in the urine of children in the communities of Anaconda and Opportunity. At least
two Appellants specifically recalled their children being subjected to this testing; one
recalled that her young son was given a dollar for his urine sample.
¶69 In association with the designation as a Superfund site, extensive efforts were
made to keep the public informed about the contamination and cleanup efforts. A 1990
article in another local newspaper, the Anaconda Leader, notified the public that the
cleanup plan was available for public inspection at the Hearst Free Library in Anaconda.
The article stated, “Of primary interest to most persons in Anaconda and Deer Lodge
County is the former smelter site and areas in the eastern part of the county which have
been identified as being contaminated during decades of smelter operation.” Opportunity
is located in the eastern part of Anaconda-Deer Lodge County. In 2001, an article in the
Montana Standard described testing of the “arsenic-laden Opportunity Ponds,” stating
that although no significant contamination had yet been observed in the area’s drinking
water, “officials fear a moving ‘plume’ of contaminated groundwater may eventually
reach the wells of Opportunity homeowners.”
45
¶70 A Community Protective Measures Program developed by ARCO and EPA in
2002 included five components:
 Educational information describing potential risks, recommendations to
reduce exposure to residual contaminants in soils, and operation and
maintenance measures to ensure the long-term viability of this remedy
will be made available to the public by Atlantic Richfield at the Hearst
Library, ADLC Courthouse, and Atlantic Richfield offices. The
information will also be provided to banks and realtors in the Anaconda
community.
 A single mass mailing of information to all residents of ADLC, within
the SPAOD, that briefly describes “Superfund” activities within ADLC,
provides educational information, and briefly describes the ADLC
Development Permit System (“DPS”).
 Atlantic Richfield will provide for residential soils sampling for current
residents (that have not been previously sampled) within the CSOU for
three years. Landowners within the CSOU will have the opportunity to
have their current residential property samples upon request from the
landowner. Sampling will be conducted by Atlantic Richfield or by a
third party through a contract with Atlantic Richfield.
 Atlantic Richfield will run a full page add in the local newspaper once a
year for three years that provides educational information and provides
phone numbers for sampling and/or additional information.
 Atlantic Richfield will develop a database to track and store the
following: 1) informational material distribution; and 2) sampling
results and remediation status for affected residential properties within
the CSOU. Atlantic Richfield or their designee will maintain the
database.
In 2003, ARCO conducted the required mass mailing, which informed homeowners of
the following:
Areas were identified after soil samples were taken in the early 90’s,
providing data that led the [EPA] and Atlantic Richfield Company
representatives to anticipate elevated levels of arsenic in specified areas. . . .
The Focus Areas in the surrounding regional area include a small portion of
Opportunity [and] Crackerville.
46
Full-page newspaper ads were placed in the Montana Standard and the Anaconda Leader
annually during the years 2002 through 2005. Residential soil sampling was available by
request of property owners from 2002 through 2008. The soil testing program was
described in articles in the Montana Standard and Anaconda Leader in 2002, 2003, and
2004, each of which specifically stated that the “focus area” included not just Anaconda,
but parts of Opportunity and other outlying areas. One article encouraged homeowners to
“clear up any nagging doubts about what’s in their dirt.” Many Appellants requested and
received sampling at ARCO’s expense through this program.
¶71 Although environmental contamination that is invisible to the senses and requires
specialized testing to detect may be considered a self-concealing injury, an injury is no
longer self-concealing for purposes of the discovery rule where a potential plaintiff has
notice of the injury sufficient to prompt a reasonable person to further inquiry. Kaeding,
¶ 27; Mobley, 202 Mont. at 233, 657 P.2d at 607. The benefit of the discovery rule is
available only where the injury cannot be discovered despite the exercise of due
diligence. Nelson, ¶ 14. In response to the almost overwhelming evidence of public
knowledge produced by ARCO, several Appellants claim that although they were aware
their properties were within a Superfund site, they did not know what “Superfund”
meant. One, in particular, recalled seeing two properties on his street where a new
driveway or a new lawn was installed because “they found arsenic or something.”
Despite this, he “never went over and [said], ‘What are you doing?’” This cannot be said
to demonstrate the exercise of due diligence. Appellants cannot avail themselves of the
benefit of the discovery rule under these circumstances.
47
¶72 Appellants also argue that testing provided by ARCO did not offer a comparison
to naturally-occurring background levels of arsenic, and therefore did not fully inform
them as to whether their properties were contaminated at a level below the EPA-approved
threshold of 250 ppm. The fact that Appellants were not given actual notice of all of the
facts underlying their claim does not establish that those facts could not have been
discovered through the exercise of due diligence. (Indeed, Appellants were able to
discover the naturally-occurring arsenic levels in Opportunity by retaining an expert in
the course of this litigation; they offer no reason why this effort could not have been
made years earlier.) To the extent that this alleged non-disclosure supports Appellants’
allegations of constructive fraud, Appellants had sufficient notice of the facts to prompt
them to inquire whether ARCO had fully and accurately represented the state of their
properties. Where Appellants were aware, despite ARCO’s alleged representations to the
contrary, of the likelihood that their properties were contaminated, the alleged
non-disclosure was not self-concealing. On the record before us, there is no material
factual dispute regarding whether the facts constituting the claims were concealed or
self-concealing and whether Appellants exercised due diligence in attempting to discover
those claims.
¶73 Appellants also argue that ARCO discouraged them from conducting further
inquiry, effectively acting to conceal the facts underlying their claims, by consistently
representing that their communities were “clean.” The statute of limitations is tolled only
where the defendant has engaged in fraudulent concealment or affirmatively prevented
the injured party from discovering that he or she has been injured. Cartwright, 276 Mont.
48
at 14-15, 914 P.2d at 985. Fraudulent concealment consists of “‘the employment of
artifice, planned to prevent inquiry or escape investigation, and mislead or hinder
acquisition of information disclosing a cause of action.’” Cartwright, 276 Mont. at 17,
914 P.2d at 986 (quoting Monroe v. Harper, 164 Mont. 23, 28, 518 P.2d 788, 790
(1974)). Fraudulent concealment is to be distinguished from Appellants’ claim of
constructive fraud, which does not require intent to deceive. Hartfield v. Billings, 246
Mont. 259, 263, 805 P.2d 1293, 1296 (1990).
¶74 Appellants cite depositions and documents establishing that based on an
investigation conducted in 1996, ARCO concluded, and represented to the public, that the
community was not at risk. This assessment was based on the EPA threshold of 250
ppm. The depositions referred to by Appellants include statements that ARCO made
these representations under the belief that “in general, with the science that we had at the
time, basically [the representation that the community was not at risk] was accurate.”
The evidence referred to by Appellants shows that ARCO relied on EPA-approved
standards and accurately represented those standards and its sampling results to the
public. Appellants have not established a material factual dispute regarding whether
ARCO acted to prevent inquiry or hinder the acquisition of information. The record
demonstrates that after these representations were made in 1996, additional soil testing
was offered and information about the contamination and cleanup was continually made
publicly available.
¶75 Appellants also refer to letters received in 2006 and 2007, after soil samples from
their properties were tested by ARCO, concluding that arsenic levels on their properties
49
were “below the EPA set standard residential arsenic action level of 250 parts per
million; therefore further sampling or remediation is not required in your residential
yard.” The letters further promised, “A final report will be provided to you at the
conclusion of this project.” Those Appellants whose properties contained arsenic
concentrations exceeding 250 ppm were provided with more detailed sampling results
and offered remediation.
¶76 Appellants do not allege that the sampling results obtained by ARCO were
fraudulent or otherwise inaccurate. ARCO also notified Appellants of the EPA-mandated
action level for residential properties and whether remediation of their properties was
required under that standard. Appellants do not allege that ARCO misrepresented the
EPA action level or the remedial actions required by EPA. Appellants further do not
allege that ARCO prevented them from conducting independent testing. The evidence
pointed to by Appellants shows that, instead of preventing inquiry or hindering the
acquisition of information, ARCO provided Appellants with information regarding the
levels of arsenic contamination on their properties. Again, ARCO relied on
EPA-approved standards and accurately represented those standards and its sampling
results to Appellants. Appellants clearly believe that the EPA-approved residential action
level is inappropriate. This difference of opinion does not render ARCO’s
representations fraudulent, and does not demonstrate the existence of a material factual
dispute regarding whether Appellants were affirmatively prevented from discovering the
facts underlying their claims. Appellants may not avail themselves of the discovery rule
in this matter.
50
CONCLUSION
¶77 We hold that a claim of continuing nuisance or trespass based on environmental
contamination does not require evidence that the contamination is migrating. Appellants’
claims of continuing nuisance and trespass are not time-barred if it can be determined by
a finder of fact that the contamination is reasonably abatable. The crucial consideration
for the trier of fact in determining whether a tort is permanent or temporary, and thus
continuing, is whether the tort can be discontinued or abated. Migration is a
characteristic of the contamination that may affect the jury’s determination of reasonable
abatability. We reverse the District Court’s conclusion that Appellants produced no
evidence of migration, and hold that a jury may consider the issue. We reverse the grant
of summary judgment to ARCO on Appellants’ claims of continuing nuisance and
trespass, and remand for further proceedings on the issue of reasonable abatability. If the
contamination is not found to be reasonably abatable, the statute of limitations will not
then be tolled by application of the discovery rule. Strict liability and negligence, as
theories of liability for an underlying injury, may be considered subject to the continuing
tort doctrine if the alleged injury is of a continuing nature. The viability of these claims
will also depend on the jury’s determination regarding reasonable abatability.
¶78 Under the facts of this case, Appellants’ claim of unjust enrichment is not subject
to the continuing tort doctrine. The discovery rule will not toll the statutes of limitations
applicable to Appellants’ claims of unjust enrichment and constructive fraud, because
Appellants had sufficient information regarding the presence of contamination to
reasonably prompt them to further inquiry. These claims are time-barred, and we affirm
51
the District Court’s grant of summary judgment to ARCO on Appellants’ claims of unjust
enrichment and constructive fraud. The wrongful occupation alleged by Appellants may
be considered continuing, and thus not time-barred. The District Court applied the
incorrect statute of limitations to this claim, and we reverse. As noted, we do not address
any potential impact on the case of ARCO’s affirmative defenses that the District Court
has not yet addressed.
¶79 Affirmed in part, reversed in part, and remanded for further proceedings consistent
with this Opinion.
/S/ LAURIE McKINNON
We Concur:
/S/ PATRICIA COTTER
Justice Beth Baker, concurring.
¶80 I concur in the decision to reverse summary judgment in favor of ARCO on the
Plaintiffs’ continuing tort claims. I agree that evidence of migration is not necessary to
establish a continuing tort and I join the Court’s Opinion with respect to Issues Three and
Four. I join the Court’s resolution of Issue Two and much of the discussion, as I also
agree that the record reveals genuine issues of material fact on whether contamination
continues to migrate. I do not join the Court’s discussion of Issue One, and I would not
situate migration as a component of abatability as the Court does in that section.
¶81 In Burley, we were tasked with explaining how three factors—stabilization,
migration, and abatability—bear on continuing nuisance doctrine. We explained the
importance of these factors through the prism of their relation to the “one consistent
52
theme [discerned from] the historic decisions of this Court to evaluate whether a nuisance
should be classified as temporary or permanent: whether the injury is sufficiently
complete to ascertain permanent damages.” Burley, ¶ 41. Our decision in Burley reflects
that stabilization, migration, and abatability each bear independently on whether an
“injury is sufficiently complete to ascertain permanent damages.” Burley, ¶ 41. I would
not abandon that analysis today.1
¶82 Both the Court’s Opinion and Justice Rice’s Dissent barely mention the concept of
stabilization. The neglect of this factor is understandable after Burley, in which we
simply assumed from the certified question that the pollution had stabilized because the
concentration of the pollutants was no longer increasing. Burley, ¶ 2. We proceeded to
analyze, and ultimately rejected, BNSF’s argument that the stabilization of contamination
provides a “bright line rule” on whether a nuisance is permanent or temporary. Burley,
¶ 51.
¶83 But our precedent, including Burley, reflects that stabilization is not as narrow a
concept as the issue before us in Burley. Rather, when referring to stabilization, we often
have focused on whether the injury itself is stable or changing. See Burley, ¶ 21 (“The
concept of an injury having ‘stabilized’ first appears in Blasdel.”) (emphasis supplied).
1
Justice Rice’s Dissent posits that the “complained of injury” in a continuing tort must be both
“(1) recurring and (2) remediable,” and would analyze claims by that lodestar. Dissent, ¶ 103.
Although differently phrased, this is essentially the same standard that we employed in Burley
and that I employ today—“whether the injury is sufficiently complete to ascertain permanent
damages.” Whether the injury is sufficiently complete speaks to whether the injury continues to
occur (the Dissent’s first factor) and whether damages are permanent speaks to whether the
injury is remediable (the Dissent’s second factor).
53
¶84 For instance, in Graveley I, where lead batteries were not increasing but were
removable, we held that the nuisance was continuing in that “a new cause of action may
arise each time a cow becomes ill or dies as a result of lead poisoning.” In other words,
the injury—the cows becoming sick or dying—had not stabilized, so the injury was not
complete, and the tort was continuing. Graveley I, 240 Mont. at 25, 782 P.2d at 375. In
Haugen Trust, we stated that the “situation” had “not stabilized” not only because the
nuisance itself was fluctuating (through intermittent floods), but also because the extent
of the damage depended on “the condition” of the basement at the time of each
occurrence. Haugen Trust, 204 Mont. at 513, 665 P.2d at 1135. The “condition” of the
basement “presumably” referred to the extent to which the basement was “finished,”
what “personal items” were “stored” there, and whether the basement had “dried
completely since the previous flooding.” Burley, ¶ 27. In other words, in Haugen Trust,
there was a continuing tort because the injury was still developing. Haugen Trust, 204
Mont. at 513, 665 P.2d at 1135. And in Burley, we discussed Shors in the context of
stabilization, noting that in that case where the nuisance was easily abatable, “[a] new
cause of action arose each day that the gate obstructed Shors’s free use of his easement.”
In other words, the injury had not stabilized because the nuisance was continuing to
inflict a new harm whenever Shors encountered it. Burley, ¶ 33 (citing Shors, 221 Mont.
at 397, 720 P.2d at 244).
¶85 This Court did not even use the term “migration” in its continuing tort analysis
before Burley in 2012, and did so then only at the behest of the Federal District Court’s
certified question. See Burley, ¶ 2. Of the Montana cases cited in Burley’s migration
54
analysis, Burley, ¶¶ 69-72, none in fact employ the term “migration”—and most instead
employ the term “stabilization” or a variation thereof—to describe what is at base
common phenomena: uncertainty or lack of completeness in injuries. See, e.g., Blasdel,
196 Mont. at 426, 640 P.2d at 894.
¶86 Based on the foregoing, I would conclude that migration and stabilization both are
“important factor[s],” Burley, ¶ 73, that bear on whether an injury is sufficiently complete
or whether it is dynamic and subject to change. Justice Rice’s Dissent, in my view,
proffers a similar theory: that our jurisprudence requires a recurring injury—which may
be demonstrated through evidence of migration or lack of stabilization—for a continuing
tort to lie. I depart from Justice Rice’s analysis2 in interpreting the concept of
stabilization, which in our jurisprudence is broader than merely the stabilization of
contamination. Whether the injury has stabilized is what we are after. And rightly so.
2
I also depart from Justice Rice’s Dissent regarding how the discovery rule factors into our
analysis of the statute of limitations for alleged continuing nuisance and trespass claims.
Dissent, ¶¶ 101-102, 120. Justice Rice suggests that a continuing nuisance or trespass must meet
the statutory discovery exception in order to escape the statute of limitations bar. Dissent, ¶ 102.
But the statute also prescribes the general “accrual rule” for commencing the period of
limitation. Section 27-2-102(1)(a), (2), MCA. “The discovery rule begins the statute of
limitations when the plaintiff discovers or should have discovered the negligent act. . . . The
statute of limitations does not begin to run under the accrual rule until all elements of the claim
have occurred.” Ehrman v. Kaufman, 2010 MT 284, ¶ 12, 358 Mont. 519, 246 P.3d 1048. We
addressed application of the discovery rule in Burley and disposed of it unanimously: “[T]he
discovery rule definitively would bar a property contamination tort action at the expiration of the
limitations period only where the injury had become permanent in the sense that the injury no
longer reasonably could be abated, or had abated to a point where permanent damages could be
ascertained.” Burley, ¶ 47. The continuing tort doctrine relates to the accrual of the cause of
action, which occurs only when the right to maintain an action on the claim is complete. Section
27-2-102(1)(a), MCA. In the context of a continuing nuisance or trespass, this occurs when the
injury is sufficiently complete to ascertain permanent damages. Burley, ¶ 41. See Blasdel, 196
Mont. at 426, 640 P.2d at 894 (holding that a cause of action for a permanent taking did not
accrue until the water table had “stabilized” in 1960).
55
Our stabilization jurisprudence recognizes the unique nature of environmental harm and
the nuisance cause of action. Environmental harm has the ability to affect disparate
persons long after the conduct creating it has occurred, and nuisance focuses on
interference with a landowner’s use and enjoyment of her property. Put these two
together and it means that an environmental injury may not be sufficiently complete to
ascertain permanent damages until the nuisance is in fact abated (if it reasonably can be),
and is no longer affecting the landowner’s property interests. See Opinion, ¶ 22.
¶87 Where I believe the Court goes wrong is in situating migration—and, by
implication, stabilization—within reasonable abatability. As we stated in Burley, the key
question “in evaluat[ing] whether a nuisance should be classified as temporary or
permanent” is “whether the injury is sufficiently complete to ascertain permanent
damages.” Burley, ¶ 47. By putting all the eggs in the “reasonably abatable” basket, the
Court focuses exclusively on the second element of this standard, dealing with whether
damages are “permanent.” Stabilization and migration are independent factors because
they bear directly on the first element of the standard—whether the injury is “complete.”
See Burley, ¶ 15 (noting 58 Am. Jur. 2d Nuisances § 296’s description of nuisances as
temporary when the “injury is not complete” because the injury depends upon things like
“its continuance and uncertain operation of the seasons or of the forces set in motion by
it.”). Moreover, for the reasons stated in Justice Rice’s Dissent in ¶¶ 111-12, and 116,
situating stabilization and migration within reasonable abatement is not consistent with
Burley or with our prior jurisprudence. We could have situated migration within
56
abatability in Burley, but we chose not to, and for good reason. See Burley, ¶ 89 (listing
the factors bearing on reasonable abatability, of which migration is not one).
¶88 Nonetheless, because I agree that proving migration is not required for a
continuing nuisance, and that Plaintiffs in any event have a raised genuine issues of
material fact both with respect to migration and reasonable abatement, I concur with the
Court’s decision to remand for a jury’s consideration of those factors. I also agree with
the Court that, if the jury does not find a continuing tort, the discovery rule does not toll
the statute of limitations in this case.
/S/ BETH BAKER
Justice Michael E Wheat, concurring in part and dissenting in part.
¶89 I concur with the Court’s resolution of Issues 1, 2, and 3, but I dissent on Issue 4,
because, under the facts of this case, the questions of concealment, misrepresentation, and
reasonable diligence, in the context of the “discovery rule,” are questions of fact to be
decided by the jury, not the court.
¶90 ARCO has been actively engaged in the forced clean-up of contamination in and
around the Butte-Anaconda area, including Opportunity, for decades. Through that
process ARCO has developed reams of information related to the extent and location of
the contaminants. Such involvement has placed ARCO in a position to decide what
information it should disseminate to the public. There is no dispute that ARCO
disseminated plenty of information to the public, through various mediums, which was
sometimes general in nature and sometimes specific to the Appellants in this case. The
57
question dispositive to ARCO’s defense is whether this information was sufficiently
self-concealing, or presented in such a way to persuade the Appellants that they had
nothing to fear or had not been injured. The answer to this question is fact intensive and
should be decided by the jury. It is not the Court’s job to sort through the disputed facts
and interpret them one way or the other—that is the jury’s responsibility. Therefore, I
would reverse the District Court’s decision that “the running of the statutes of limitations
on the Plaintiffs’ claims is not tolled by Section 27-2-102(3).”
¶91 As the Court notes:
The fact that a party does not know that he or she has a claim, whether
because he or she is unaware of the facts or unaware of his or her legal
rights, is usually not sufficient to delay the beginning of the limitations
period. The discovery rule constitutes an exception to this general
principle, stating that if the facts constituting the claim are concealed or
self-concealing in nature, or if the defendant has acted to prevent the
injured party from discovering those facts, the period of limitations does
not begin to run until the injured party has discovered, or in the exercise of
due diligence should have discovered, both the injury and its cause.
Opinion, ¶ 62 (citations omitted). Under the discovery rule, the claim accrues when the
plaintiff is given notice or information that would prompt a reasonable person to conduct
further inquiry. Mobley v. Hall, 202 Mont. 227, 233, 657 P.2d 604, 607 (1983)
(construing § 27-2-203, MCA).
¶92 Appellants argue the discovery rule should be applied for two reasons: first,
because their claims are self-concealing in nature; and second, because ARCO
represented that the community of Opportunity was “clean,” thereby discouraging
Appellants from conducting further inquiry. The Opportunity Citizens filed their claims
on April 17, 2008. The Court notes that the statute of limitations applicable to its
58
analysis is three years. Opinion, ¶ 14. Thus, to prevail on its defense, ARCO must prove
the Opportunity Citizens knew, or should have known, of the facts constituting their
claims before April 17, 2005. Whether any of the Opportunity Citizens should have
known of the facts constituting their claims earlier is a highly factual inquiry
inappropriate for summary judgment in this case.
¶93 Under Montana law, knowledge of a self-concealing injury, sufficient to trigger
the statute of limitations, requires knowledge of both the injury and its cause. Hando v.
PPG Indus., Inc., 236 Mont. 493, 501, 771 P.2d 956, 961-62 (1989). ARCO inundated
the District Court with thousands of pages of exhibits, to prove that most of the
Opportunity Citizens were aware the Anaconda Company smelted copper in Anaconda,
Montana, and were further aware the operation resulted in some environmental damage
in the area. However, ARCO failed to demonstrate that the Opportunity Citizens knew,
or should have known, their properties were contaminated by arsenic and other
pollutants.
¶94 In fact, many of the exhibits offered by ARCO were confusing and misleading to
the reader. For example, the full page ads in the Anaconda Leader that Appellants claim
ARCO took out to provide citizens with “information describing potential health risks,
precautions to mitigate those potential risks and answers to frequently asked questions”
contained somewhat ambiguous language. In at least one of these ads, it stated:
Q 8: What happens if analysis determines my property exceeds the average
arsenic concentration level of 250 ppm?
A: First, don’t be alarmed; this is information that will help you. You will
be informed that more extensive sampling is necessary for your property. If
59
some cleanup is required, Atlantic Richfield Company and EPA, along with
yourself will agree on the appropriate cleanup plan for your property. . . .
Q 9: What will I have to show for my cooperation and participation in these
activities?
A: You will learn that your property does not pose health risks to you, your
children, or future owners or renters.
¶95 Additionally, the Court identifies letters dated in 2006 and 2007 that ARCO sent
to many of the Appellants after conducting soil testing. It claims that these letters
indicate that Appellants knew their properties were contaminated with arsenic. Opinion,
¶ 76. I do not agree. The letters were also potentially misleading regarding the safety
and contamination of Appellants’ properties. For example, many of them included:
Although remedial action activities are still ongoing . . . Atlantic Richfield
Company and EPA would like to provide you the preliminary results from
the sampling at this time.
The weighted average arsenic concentrations for soil samples collected
from your property are attached to this letter. Your results are below the
EPA set standard residential arsenic action level of 250 parts per million;
therefore further sampling or remediation is not required in your residential
yard.
¶96 The Court also points to several Appellants’ deposition statements that they
recalled reading news articles about Environmental Investigation and Cleanup in the area
surrounding their properties before April 17, 2005. However, ARCO only identified
seven such Appellants. As there are over 90 Appellants, it is unclear whether all of the
Appellants were aware of any news about environmental cleanup or concern in the area.
¶97 In nearly all of ARCO’s depositions of Appellants, ARCO asked (in slightly
varying language) whether the Appellants could recall any misrepresentations that ARCO
had made about the contamination. Many of the responses suggested that in some way
60
ARCO did in fact misrepresent to the citizens of Opportunity regarding the quality of
their property. In fact, in one public meeting, ARCO’s Sandra Stash stated, “I think the
real good news out of this whole thing is that this community is not at risk,” and “95
percent of the community . . . does not need to worry about [arsenic concentrations in
residential soils].” Also, in ARCO’s post-testing letters to Plaintiffs dating back as far as
2000, ARCO told Plaintiffs with properties testing below 250 ppm that “[y]our results are
below the EPA set standard residential arsenic action level of 250 parts per million;
therefore further sampling or remediation is not required in your residential yard.”
¶98 The Opportunity Citizens’ claims are all based on damage to their properties,
caused by the spread of contaminates from ARCO’s operations. Knowledge of the facts
constituting the claims would necessarily include knowledge that contaminates from
ARCO’s operations harmed each Opportunity Citizen’s individual property. With
respect to the individual Opportunity Citizens, ARCO cited no evidence at all to suggest
they know, or had any means of knowing, whether contamination existed on their
individual properties. Most of the Opportunity Citizens also confirmed their lack of
understanding of the impact to their property in their depositions. While some
Opportunity Citizens testified they “suspected” ARCO’s activity may have harmed their
properties, they had no means of discovering just how bad things were.
¶99 When evaluating the highly individual and factually intense question of when the
Opportunity Citizens should have learned their property was contaminated, the court and
jury should consider the complexities of environmental investigation. Ultimately, the
trier of fact should decide, based on all of the evidence, when the Opportunity Citizens
61
possessed sufficient knowledge of ARCO’s invisible and toxic contamination on their
properties.
/S/ MICHAEL E WHEAT
Justice James Jeremiah Shea and Judge James A. Manley join in the concurring and
dissenting Opinion of Justice Michael E Wheat.
/S/ JAMES JEREMIAH SHEA
/S/ JIM MANLEY
District Court Judge Jim Manley
sitting for Chief Justice Mike McGrath
Justice Rice, dissenting in part and concurring in part.
¶100 I dissent, and will address Issue 1. The Court holds that the application of the
continuing tort doctrine to Appellants’ claims of nuisance and trespass does not require
evidence of the continued migration of contaminants. In so doing, the Court concludes
that only those nuisances and trespasses that cannot reasonably be remediated are
burdened by a statute of limitations. In my view, this is an impermissible infringement
on the Montana Legislature’s power to enact statutes of limitations and is inconsistent
with this Court’s precedent regarding the continuing tort doctrine. The Court acts as if it
is feasting at a smorgasbord of common law remedies from which it is free to pick and
choose the remedies it fancies. In its common law meanderings, the Court doesn’t even
recognize that we have a statute of limitations to be honored.
¶101 Section 27-2-207, MCA, imposes a two year statute of limitations for injuries to
property, including nuisance and trespass claims. Section 27-2-102(2), MCA, provides:
62
“Unless otherwise provided by statute, the period of limitation begins when the claim or
cause of action accrues.” Section 27-2-102(1)(a), MCA, further provides “a claim or
cause of action accrues when all elements of the claim or cause exist or have occurred,
the right to maintain an action on the claim or cause is complete, and a court or other
agency is authorized to accept jurisdiction of the action.”
¶102 The statutory scheme, of course, does not provide a textual exception for
continuing nuisance and trespass claims, though it does provide an exception for the
discovery rule. See § 27-2-102(3), MCA. The Court concedes the statute of limitations
for Appellants’ claims is not tolled by the discovery rule, but maintains that an
extratextual, common-law exception, denominated as the continuing tort doctrine, tolls
the statute. While the continuing tort doctrine is well established in the precedent of this
Court, the doctrine cannot be applied to supplant the statutory scheme. In Montana
“there is no common law in any case where the law is declared by statute.” Section
1-1-108, MCA. And where the law is not declared by statute, the common law is
applicable only so far as it does “not [] conflict with the statutes” of this State. Section
1-1-108, MCA. Any interpretation adopted by this Court of the continuing tort doctrine
must be compatible with the statutory scheme and the Legislature’s intent to impose a
two year statute of limitations on nuisance and trespass claims.1
1
There is authority for the proposition that the common law doctrine of continuing tort and the
statutory rule of accrual are incompatible. See Jensen v. General Elec. Co., 82 N.Y.2d 77, 84,
623 N.E.2d 547, 549 (N.Y. 1993) (concluding that the legislature intended no continuing tort
exception to the statute).
63
¶103 Key to the continuing tort doctrine is that the complained of injury is (1) recurring
and (2) remediable. 66 C.J.S. Nuisances § 6 (2009).2 Even if the Court is correct in
holding that Appellants have introduced sufficient evidence to raise a jury issue about
whether the injury is remediable, the Appellants have failed to introduce evidence
showing the injury is recurring. I believe this is to be fatal to their claim.
¶104 The Court devotes a sizeable portion of its opinion to attacking a straw man who, I
gather, is pressing the Court to adopt a bright-line rule that migration is in every case the
dispositive factor. Opinion, ¶ 29. In this regard, I agree with the Court that migration is
not dispositive of the continuing tort doctrine in all cases. Nor is migration, for that
matter, dispositive of the continuing tort doctrine in all environmental contamination
cases. However, that is not the issue. The issue is whether migration is required under
the facts of this claim. Here, migration is determinative of the Appellants’ claims
because the Appellants cannot demonstrate a recurring injury without it. The Appellants
have conceded the contamination is stabilized and the only other alleged recurring injury
to their property is repeated property invasions stemming from the continued migration of
contamination beneath their property and potentially into their groundwater. Absent
migration the Appellants have but merely a single, unbroken, decades-long injury.
2
Justice Baker’s concurrence adopts this standard and offers a similar line of reasoning, with
which I largely agree. Concurrence, ¶ 80. However, while I agree that the recurring prong is
based principally on the idea of ascertainment of damages, I disagree with the concurrence’s
characterization of the injury in terms of stabilization (as it uses the term) and its implicit
conclusion that the recurring prong is necessarily a jury question.
64
¶105 The continuing tort doctrine cannot be harmonized with the statutory scheme
without a recurring injury. Fundamental to the doctrine is the principle that “[w]hen a
court finds that a continuing nuisance has been committed, it implicitly holds that the
defendant is committing a new tort” and thereby has “trigger[ed] a new statute of
limitations.” Lyons v. Twp. of Wayne, 185 N.J. 426, 433 (N.J. 2005); see also Burley,
¶ 14 (a new cause of action arises “each time that it repeats”). In this way, by requiring a
plaintiff to demonstrate a recurring tort, we preserve the intent of the Legislature to
impose a statute of limitations—in effect concluding that the Legislature intended to
time-bar old torts, but did not intend to bar the new torts because “all elements of the
claim or cause” have not occurred with respect to them. A necessary corollary is that we
do not permit a plaintiff to recover damages for all injuries, but only those new injuries
that have occurred within the statute of limitations period immediately preceding the
filing of the complaint. Graveley Ranch, 240 Mont. at 23, 782 P.2d. at 373. However,
when there ceases to be new torts the statute of limitations ceases to reset and the
nuisance or trespass becomes permanent. 66 C.J.S. Nuisances § 6 (2009) (“A nuisance is
permanent when there is only one unceasing invasion of the plaintiff’s interests, giving
rise to only one cause of action, with damages assessed once and for all.”). A plaintiff
must continue to demonstrate recurring torts to his property in order to continue
triggering new statutes of limitations.
¶106 We have consistently required a recurring injury to trigger new causes of action.
In Graveley Ranch, we concluded that “a new cause of action may arise each time a cow
becomes ill or dies as a result of lead poisoning.” Graveley Ranch, 240 Mont. at 25, 782
65
P.2d at 375. We reasoned that the mere “fact that the nuisance continues does not make
the cause of action a recurring one.” Graveley Ranch, 240 Mont. at 25, 782 P.2d at 373.
We explained that there must be a new injury that with “[e]ach repetition” will “give[]
rise to a new cause of action.” Graveley Ranch, 240 Mont. at 23, 782 P.2d at 373. Thus,
we were explicit the recurring injury, the death or sickness of a cow, not the continuation
of the nuisance, triggered new statutes of limitations.
¶107 In Haugen Trust, we concluded that the recurring trespass there, a recurring flood,
gave rise to a new cause of action because each time it occurred it caused a new injury.
Haugen Trust, 204 Mont. at 511, 665 P.2d at 1134. We explained, because the damage
occurring from the floods varied “from occurrence to occurrence” depending on “each
flood,” the “damage is not yet permanent” and “gives rise to a separate cause of action
each time it causes damages.” Haugen Trust, 204 Mont. at 513-14, 665 P.2d at 1135
(emphasis added). Again, we required a recurring injury to the plaintiff’s property,
another flood, to trigger a new cause of action.
¶108 In Blasdel, we again concluded that a flood, this time a flood stemming from a
river backed up by a dam, tolled the statute of limitations until it ceased creating a
recurring injury. Blasdel, 196 Mont. at 425, 640 P.2d at 894. We focused on the
“intermittent” nature of the flooding and the recurring invasions of the plaintiffs’ property
interest, explaining that the “source of the entire claim—the overflow due to rises in the
level of the river—is not a single event.” Blasdel, 196 Mont. at 425, 640 P.2d at 894.
Although the water continued to remain on the plaintiffs’ property after 1960, this was
not enough to toll the statute of limitations. Blasdel, 196 Mont. at 426, 640 P.2d at 894.
66
We held instead that, while plaintiffs’ claims were tolled for a number of years, their
claims accrued in 1960 when there ceased being new property invasions. Blasdel, 196
Mont. at 426, 640 P.2d at 894.
¶109 In Montana Pole, the Ninth Circuit, interpreting Montana law under a unique set
of facts, held that contamination remaining on the plaintiff’s property did not produce a
recurring cause of action. Mont. Pole, 993 F.2d at 680. Montana Pole operated a wood
treatment plan and used penta, a chemical preservative, which contaminated Montana
Pole’s property. Montana Pole brought suit against the manufacturers of the penta for the
chemical contamination of its property, arguing the continuing tort doctrine tolled the
statute of limitations because the contamination remained on the property. Mont. Pole,
993 F.2d at 677. The Ninth Circuit disagreed, noting that Montana recognizes a
continuing tort claim only where the injury is “recurring and abatable,” and the theory is
that each new injury “gives rise to a separate cause of action.” Mont. Pole, 993 F.2d at
679. The court explained that the “argument that the injury continued into the statutory
period because the penta contamination remained on the property is simply
unpersuasive.” Mont. Pole, 993 F.2d at 680. Rather, the court, quoting Graveley,
concluded that “‘the fact that the nuisance continues does not make the cause of action a
recurring one.’” Mont. Pole, 993 F.2d at 680 (quoting Graveley Ranch, 782 P.2d at 373,
240 Mont. at 23).
¶110 Finally, in our seminal case, Burley v. BNSF, we held that contamination that
“continues to migrate, will toll the statute of limitations until the harm no longer
67
reasonably can be abated.”3 Burley, ¶ 99. After writing several pages of analysis to
determine whether migration would be relevant to our decision, considering our
precedent, and the policies behind the doctrine we concluded the “fact that a nuisance
continues to migrate constitutes an important factor under Montana law in evaluating
whether the pollution should be treated as continuing trespass or nuisance.” Burley, ¶ 73.
We explained that the continuing tort doctrine applies only if there is an “injury that gives
rise to a new cause of action each time that it repeats.” Burley, ¶ 14 (emphasis added).
We explained that migration provides a recurring cause of action because of the recurring
property injury: “Each entry of pollution onto a party’s property caused by its migration
constitutes a new cause of action.” Burley, ¶ 68. Specifically, we reasoned that the
migrating pollution at issue continued to advance onto the plaintiff’s property
constituting a new “property invasion,” which “fits Montana’s historical definition of a
continuing temporary injury.” Burley, ¶ 73. Therefore, we were explicit in detailing the
unique injury migration provides, and once again, in accordance with precedent, required
a recurring injury to trigger new causes of action.
¶111 Nonetheless, the Court today draws a completely different conclusion from
Burley. While the Court does not dispute that migration was an “important factor” to our
decision, it attributes migration’s significance to the potential to affect abatement of the
3
It should come as no surprise that the plaintiffs in Burley, well aware of our case law, argued
that the contamination produced a recurring injury. The plaintiffs reasoned “the new
contamination will continuously arrive and cause new injury to plaintiff’s property,” and “key to
answering the certified question rests on the fact BNSF’s contamination is still migrating.” Brief
for Appellant at 1, 14, Burley v. Burlington N. & Santa Fe Ry. Co., http://courts.mt.gov/library
(June 8, 2011) (No. 11-0021).
68
injury. Opinion, ¶ 33. The Court’s reading is impermissible for a number of reasons.
First, nowhere in our lengthy analysis in Burley did we state that migration was an
“important factor” because it affected remediation of the contamination. However, we
did explicitly state the factors necessary to discern whether the contamination was
reasonably abatable:
Courts should evaluate whether it would be reasonable for the tortfeasor to
abate the harm taking into account all factors, including the ease with
which the harm could be abated. Other factors include the cost of the
abatement, the type of property affected, the severity of contamination, and
the length of time necessary to remediate such pollution.
Burley, ¶ 89. Migration is not among the factors. Second, in the twenty-four paragraphs
we used in Burley to attempt to track the contours of the reasonable abatement standard
there is little mention of the “important factor” of migration—using the word
“migration,” in all, a single time. Third, in no other case have we ever explained that
migration affects abatement. In Burley, we relied on our decisions in Walton, Blasdel,
Haugen Trust, Nelson, and Graveley Ranch to conclude that migration was an important
factor to our analysis. Burley, ¶ 71. There is nothing in these cases to suggest that
migration impacts abatement, and it would likely have been inappropriate for the Court to
make that conclusion, without citing expert testimony in any of those cases and lacking
the technical expertise itself.
¶112 Lastly, the Court’s reasoning is inherently self-defeating. The Court completely
ignores the elephant in the room: in Burley, migration was an important factor serving to
establish a continuing tort, but under the Court’s abatement standard migration serves
only to prevent a continuing tort.
69
¶113 In Burley we explained, in so many words and in so many different ways, that
migration was a factor supporting the plaintiff’s position that the contamination
constituted a continuing tort. Burley, ¶ 68 (“consider[ing] migrating property
contamination to constitute a continuing temporary tort.”) (emphasis added); Burley, ¶ 73
(“The reasoning and outcomes of these Montana cases leads us to conclude, as further
explained below, that a nuisance of a continuing temporary nature includes migrating
pollution.”) (emphasis added); Burley, ¶ 73 (“The migrating pollution in the instant case,
though stabilized in terms of concentration levels, fits Montana’s historical definition of a
continuing temporary injury.”) (emphasis added); Burley, ¶ 73 (“A defendant’s failure to
stop the continuing migration of a nuisance onto a plaintiff’s property, where it
reasonably can be stopped, constitutes a continuing property invasion.”) (emphasis
added); Burley, ¶ 68 (“Each entry of pollution onto a party’s property caused by its
migration constitutes a new cause of action.”) (emphasis added); Burley, ¶ 73 (“To
classify as permanent a nuisance that continues to migrate could bar a plaintiff from
bringing a nuisance action, even if the contamination from a defendant’s tortious actions
continues to affect different parts of her land each day.”).
¶114 However, the Court rewrites Burley to effectuate a complete turnabout with
respect to migration. Under the reasonable abatement standard, migration’s only
relevance is to show that abatement will be difficult, Opinion, ¶ 35, meaning migration is
a factor wholly supporting ARCO’s position that the contamination does not constitute a
continuing tort.
70
¶115 There is simply no two ways about it. Migration played an entirely different role
in Burley than it plays in the Court’s opinion. In Burley migration was a factor
counseling in favor of tolling the statute of limitations, but now the Court places
migration entirely on the other side of the ledger. The Court doesn’t even bother to
address its error in logic or the obvious contradiction this creates in our jurisprudence.
Any sensible reading of Burley leads to the conclusion that migration has legal import
outside of abatement.
¶116 In sum, the Court’s interpretation of Burley lacks both merit and logic. Migration
provides a recurring injury. And, in turn, a recurring cause of action. Burley, ¶ 68
(“Each entry of pollution onto a party’s property caused by its migration constitutes a
new cause of action.”). This is why it is an “important factor.” The Court’s nonsensical
reasoning will ultimately come at the confusion of future parties.4 If the Court wishes to
overrule Burley it should expressly do so. The citizens and practitioners in Montana
deserve to know the rule of law.
¶117 Next, the Court relies on Shors, which we decided two decades prior to Burley and
a year prior to the Legislature’s passage of § 27-2-102(1)(a), (b), MCA. In Shors, a
developer, Branch, subdivided property and granted the lot owners of the subdivided
property access to the Middle Fork of the Flathead River via a Declaration of Restrictions
4
For instance, it is the Appellants that maintain there is evidence of migration, and it is ARCO
who steadfastly denies that the contamination is migrating. If migration’s importance lies with
abatement, the parties are arguing against their own interests: ARCO should be arguing that
there is migration, and the Appellants should be arguing that there is not migration. Yet, by
upholding Burley, which stands for the proposition that migrating pollution makes it easier for a
plaintiff to demonstrate a continuing tort, the Court complicates matters beyond comprehension.
71
contained within the parties’ contracts. In 1976, Branch placed a locked gate across the
road in violation of the Declaration of Restrictions. Several of the lot owners, including
Shors, filed an action against Branch in 1982 for interference with their access to the
river. Shors, 221 Mont. at 396, 720 P.2d at 243. The district court concluded that Branch
had “unlawfully and unreasonably restricted Plaintiffs’ right of access, in derogation of
the Declaration of Restrictions . . . .” Shors, 221 Mont. at 397, 720 P.2d at 243. On
appeal, we addressed whether the plaintiffs’ claim for damages for interference with their
access to the river was barred by the statute of limitations. Shors, 221 Mont. at 394, 720
P.2d at 241. We answered in the negative. We first reasoned the plaintiffs were entitled
to damages and their claim was not time-barred because it “sound[ed] in contract, with an
8 year statute of limitation under Section 27-2-202, MCA.” Shors, 221 Mont. at 397, 720
P.2d at 243. After concluding the statute of limitations did not bar their claim, we further
provided an additional rationale, reasoning that the continuing tort doctrine also tolled the
statute of limitations for injuries to property. In a single sentence of analysis, we
concluded “that blockage of plaintiffs’ access to the river by the gate was a continuing
tort, [sic] because it was easily abated.” Shors, 221 Mont. at 397, 720 P.2d at 243-44.
¶118 Even if the limited analysis in Shors, although questionable, is susceptible to the
Court’s interpretation that abatement is the sole inquiry under the continuing tort
doctrine, I would not permit Shors to control here. First, the continuing tort analysis in
Shors was unneeded. We had already concluded that the plaintiffs’ claim was not barred
by the statute of limitations prior to our analysis concerning the continuing tort doctrine.
Second, Shors is inconsistent with prior decisions, including among others Burley and
72
Blasdel. As explained above, we have consistently required a recurring injury.
Notwithstanding the Court’s poor attempt to mischaracterize Burley, we confirmed in
Burley that a plaintiff must demonstrate a recurring injury—Shors stands in direct
conflict with Burley. Likewise, the Court’s approach renders Blasdel no longer good law.
Although the Court explains that “Blasdel was an inverse condemnation case,” Opinion,
¶ 30, the principles announced in Blasdel are engrained in this Court’s case law, and it
has been cited as much, if not more than, any other case.5, 6 Burley, ¶ 21. Third, while
we did not find it relevant to the continuing tort doctrine analysis in Shors, there was
seemingly a recurring injury there. We noted expressly that the “gate was left open” at
times. Shors, 221 Mont. at 398, 720 P.2d at 244. Lastly, Shors was decided a year prior
to the Legislature’s passage of § 27-2-102(1), (2), MCA.7 Sec. 1, Ch. 441, L. 1987.
Thus, because the accrual time was decided entirely under common law, we did not have
to contend with the will of the Legislature as we must do today.
5
We have favorably cited Blasdel in our decisions in Haugen Trust, Graveley, Burley, and E.W.
v. D.C.H.
6
In regard to Blasdel, the Court also explains, “More importantly, however, our inquiry in
Blasdel concerned the nature of the injury to the property owners, recognizing that the ‘source of
the entire claim’ was the ‘overflow due to rises in the river,’ which was identified as a continuing
event.” Opinion, ¶ 30. The point the Court is attempting to make with this statement is beyond
my comprehension. In Blasdel, the water remaining on the property was not enough to toll the
statute of limitations—new causes of action ended with the cessation of new injuries. Under the
Court’s reasoning, contamination remaining on the property may forever toll the statute of
limitations. This is inconsistent with the holding in Blasdel. Consequently, Blasdel is no longer
good law.
7
Section 27-2-102, MCA, went through extensive revisions in 1987, including providing a start
date for statutes of limitations and the codification of the discovery doctrine.
73
¶119 The Court departs from previous decisions and follows Shors based principally on
the idea of certainty. Opinion, ¶ 32. The Court forcefully “decline[s] to leave the
operation of the law to chance,” reasoning that migration cannot be determinative
because if so “continued liability would be determined by factors not within the control
of the parties, such as soil characteristics or the flow of groundwater.” Opinion, ¶ 32
(emphasis added). Rather, the Court concludes the sole inquiry must be abatement
because, as the Court explains, then continued liability will depend instead on factors
within the control of the parties, such as “soil” characteristics and the flow of “shallow
groundwater.” Opinion, ¶ 38. The Court’s reasoning is unfortunately no better with
regard to policy than it is with the law. Because we decided in Burley to focus on the
injury rather than conduct to establish new causes of action, continued liability will
always depend on factors not within the control of the parties.8, 9
¶120 However, the continuing tort doctrine is not without a policy justification. The
continuing tort doctrine attempts to act as counterweight against the defendant’s interest
in certainty provided for in a statute of limitations by protecting the plaintiff’s interest in
remedying his injury when damages are largely uncertain. Burley, ¶ 41 (“We discern one
8
There are several states that utilize a conduct-based approach. In those states, the statute of
limitations would have begun to run in this instance in 1980 when the smelter closed and the
defendant’s conduct ended. See Marin v. Exxon Mobil Corp., 48 So. 3d 234, 254 (La. 2010).
9
The states that utilize an injury-based approach as we do and have considered both migrating
contamination and non-migrating contamination have concluded that migration is necessary to
continue tolling the statute of limitations. Compare Carpenter v. Texaco, Inc., 646 N.E.2d 398,
399-400 (Mass. 1995) with Taygeta Corp. v. Varian Assocs., 763 N.E.2d 1053, 1064-65 (Mass.
2002) and compare Modern Tractor & Supply Co. v. Leo Journagan Constr. Co., 863 S.W.2d
949, 951 (Mo. Ct. App. 1993) with Cook v. De Soto Fuels, Inc., 169 S.W.3d 94, 105 (Mo. Ct.
App. 2005).
74
consistent theme in reviewing the historic decisions of this Court that evaluate whether a
nuisance should be classified as temporary or permanent: whether the injury is
sufficiently complete to ascertain permanent damages.”). In fact, we have often
differentiated between permanent torts and temporary torts based upon whether the
damages were ascertainable, with the tort becoming permanent when the damages
became certain. Burk Ranches v. State, 242 Mont. 300, 306, 790 P.2d 443, 447 n.2
(1990) (“‘permanent injury’ refers to whether the injury has stabilized enough that the
extent of the damage has become reasonably certain.”); Graveley Ranch, 240 Mont. at
24-25, 782 P.2d at 371 (“a permanent nuisance is one where the situation has ‘stabilized’
and the permanent damage is ‘reasonably certain.’”); Haugen Trust, 204 Mont. at 513,
665 P.2d at 1135 (“A permanent injury is one where the situation has ‘stabilized’ and the
permanent damage is ‘reasonably certain.’”). Because new injuries give rise to
additional damages—whether it be another flood (Haugen Trust, Walton, and Blasdel),
additional glue waste (Nelson), increased traffic, noise, and dust (Knight), or migrating
pollution (Burley)—a plaintiff’s damages are necessarily more difficult to ascertain when
there is a recurring injury. Recurring injuries produce new and uncertain damages. But
when there is no recurring injury, there is no uncertainty. As illustrated here, the
Appellants’ damages were just as ascertainable on April 17, 2006 as they were in the
years preceding. The rationale underpinning the continuing tort doctrine provides no
justification for continuing to toll the statute of limitations where, as here, the damages
were ascertainable long ago.
75
¶121 In contrast, the policy underpinning the other side of the scale supports the accrual
of the cause of action prior to April 17, 2006. “Statutes of limitation serve an important
purpose.” E.W. v. D.C.H., 231 Mont. 481, 486, 754 P.2d 817, 820. They exist to
suppress stale and untimely claims even if otherwise viable and sympathetic. E.W., 231
Mont. at 486, 754 P.2d at 820. By penalizing delay, they compel litigants to bring their
claims “within a reasonable time to enable the opposing party to mount an effective
defense.” Mont. Pole, 993 F.2d at 678. And they are of no less importance in the context
of environmental contamination where the earlier pollution is remediated the better it is
for the parties and the public.
¶122 Although the Court acknowledges these purposes, it does not elaborate on how
they will be promoted by its decision, offering only that the abatement standard will
“promot[e] finality.” Opinion, ¶ 33. Of course, the Court’s decision will not advance the
purposes of statutes of limitations any more than the abatement standard promotes
finality. Creating perpetual tort liability does compel litigants to bring their claims in a
reasonable time, it does not safeguard an opposing party’s ability to mount an effective
defense, and it does not encourage early remediation of environmental contamination.
What it does is to ensure that a claim will be brought when it is expedient for the litigant
pursuing damages, in disregard to the interests of the opposing party and the public. For
those who are alleged to have pounded a post in the wrong pasture, poured a driveway
past the property line, or dug a ditch for a gas line outside an easement, the Court’s
decision guarantees they must be prepared to mount a legal defense for all time. As for
finality, and the cleanup of environmental contamination, that will come at a time of the
76
claimants own choosing, possibly decades after damages have become ascertainable,
provided he can overcome the sole impediment that is the Court’s flimsy reasonable
abatement standard: (1) “can be reduced” Opinion, ¶ 37; (2) “by some means.” Opinion,
¶ 45.
¶123 In short, I cannot agree that the Legislature, by providing “[w]ithin 2 years is the
period prescribed for the commencement of an action for injury to or waste or trespass on
real or personal property” intended to impose a 2 year statute of limitations on only those
injuries that are incapable of abatement. Nor can I agree that the Legislature by writing
“[u]nless otherwise provided by statute, the period of limitation begins” when “all
elements of the claim or cause exist or have occurred” intended the statute of limitations
for nuisance and trespass claims to be tolled for as long as the claimant sees fit. The
Court did not create the continuing tort doctrine today. But, in a decision that is wanting
on text, precedent, policy, and much too often sound reasoning, the Court did expand the
doctrine at the expense of power that is properly reserved for the Montana Legislature.
¶124 Given that my primary dispute with the Court is its holding under Issue 1, and the
lengthy discussion necessitated thereby, I will not address the remaining issues. I believe
that the record does not support the existence of migration necessary to establish a
recurring injury. I agree with the District Court’s reasoning under the discovery rule, and
thus concur with the Court’s resolution of Issue 4.
/S/ JIM RICE
77