RECAP OF CASES DONE BY JON L. HEBERLING

FROM 1974 - 2017

 

I have been asked to recap my career.  I have had the good fortune to do extensive public interest work in the context of a career as a trial lawyer. 

This recap will go decade by decade.  Attached are listings of cases. 

My record in trials lasting more than one week is 12-1

My record in Montana Supreme Court cases is 12-5

My record in environmental cases is 20-1

 

1.      Recap 1970s

 

I came to Montana in January 1974 and joined the firm then known as McGarvey, Morrison, Hedman and Moore.  From 1974 to about 1978, I had the opportunity to work with Frank Morrison, one of America's great trial lawyers.  He was easily the most talented trial lawyer I have ever encountered.

        

Brown v. North American Manufacturing Co., 176 Mont. 98, 576 P.2d 711 (1978), I was third chair to Frank Morrison and Dale McGarvey.  Dean Brown lost a leg in a defective ranch auger.  Dale McGarvey was an expert in condemnation cases.  The Brown case was in products liability.  Dale McGarvey brilliantly portrayed the case in damages as essentially as one of a taking of the ranch, due to the disability of the ranch manager, Dean Brown.  Damages were in terms of loss of ranch earnings.  The verdict of $325,000 was the largest in Flathead County history, up to that time. 

        

Cases against the Anaconda Aluminum Company.  This was one of the first cases I worked on.  The cases originated as a class action, filed by Dale McGarvey and Frank Morrison.  It was said to be the first air pollution class action in the United States.  It caused an uproar in the community, as many reacted in horror to the notion that one might sue the aluminum plant.  The aluminum plant was emitting hydrogen fluoride pollution.  There was great damage to white pine, lodge pole pine and douglas fir trees.  Other species were more resistant to it.  After certification was denied, the class action devolved into 26 landowner cases.  I defended 26 (or more) landowner depositions.  Final settlements were in excess of $400,000.  As a result of the case the aluminum plant purchased expensive Japanese scrubbers, which greatly decreased the pollution.  Also the operating efficiency of the plant was increased, saving the company millions over the long term. 

        

Blasdel v. Montana Power Co., 196 Mont. 417, 640 P.2d 889 (1982).  This was the classic case of the old farmer against the power company.  Montana Power completed Kerr Dam at the south end of Flathead Lake in 1939.  An "Environmental Impact Statement" was prepared by one R.L. Cady in 1934.  The dam raised the average level of Flathead Lake by six feet.  Based on data from observation wells, Cady predicted that as a result of the dam, the water tables in the lower valley area north of Flathead Lake would be raised 5.2 feet, and that the water tables would stabilize in 1959.  As it turned out, the water tables did stabilize at new levels in 1959.  The new levels were 5.4 feet higher due to the dam.  Based on 25 years of data from observation wells in the lower valley, the 1959 levels were demonstrated by our hydrologist Dr. Robert Curry.  The accuracy of R.L. Cady's prediction in 1934 was astounding. 

        

Jess Blasdel had 100 acres under water and 450 acres damaged by salts rising.  Montana Power always maintained that the rise in the water tables was due to excess rain fall in the 1940s and 1950s.  And, it was true that the years 1948-1960 were very wet years, in comparison to the two decades before 1948. 

        

I got the Montana Power hydrologist to agree that based on his theory that it was all due to the rain fall, the water levels on the new lakes on the Blasdel farm should have been even higher in 1910-1920, the wettest period in recorded history.  On rebuttal, we called the charming 93 year old Abby Mitton, who testified that in the 1910s she rode her horse past the Blasdel farm each day on her way to school.  As to the areas now under water, she testified that as of 1916 "oh no, there wasn't any water there."  She also had a photo of her sister's wedding in 1916 at the Grange Hall on the corner of the Blasdel farm.  Unfortunately the photo did not face toward the areas now under water, but she testified that for the wedding cars were parked on the areas now under water.  The jury loved her.  What a fun case to try.  We had two two-week trials.  The judge had bifurcated liability and damages.  However, at the second trial on damages all the liability evidence came in on the issue of causation.  So much for the bifurcation.  The judgment after jury verdict of $409,000 was the largest in Flathead County history, up to that time.  It was affirmed by the Montana Supreme Court. 

        

Kadillak v. Anaconda Company, 184 Mont. 127, 602 P.2d 147 (1979).  This was a group action by landowners in the Hillcrest Subdivision in Butte.  The Anaconda Company had sold the land to them promising not to do mining activities next door.  They did.  The homeowners challenged the hard rock permit and environmental impact statement done for a huge mine waste dump next to the 120 houses.  Issues included whether the 38 degree slope on the dump could ever be reclaimed and whether there was toxic air pollution.  Before trial the author of the environmental impact statement for the Department of State Lands left State Lands, and became a witness for us.  The trial was three weeks long.  It included expert witnesses of all imaginable stripes.  We could not afford to depose them all, and so cross-examinations were done on the fly.  The judge was 88 years old.  Sometimes we hollered "objection" to wake him up.  After the trial the judge signed the Anaconda Company's findings.  We won in the Supreme Court.

2.      Recap 1980s.

The life of a trial lawyer was entirely different back then.  Defense costs were low, and personal injury cases often went to trial.  I recall a case where the offer was $8,000.  I was at $20,000.  The jury verdict was $25,000.  I had several cases like that (or a bit larger). 

In addition to the personal injury work, from 1977 to 1993 I was essentially donating 50% of my time to environmental cases.  The fish and the bears did not pay their bills.  I often represented local penurious environmental groups in appeals of U.S. Forest Service timber sales.  The major case we did with effects all across Region One of the Forest Service was the appeal of the Flathead National Forest Forest Plan.  Resources Limited, et al v. U.S. Forest Service, ruling of the Chief of the Forest Service (1988).  This case is described in the recap of environmental cases at #15.  The case resulted in about an 80% decline in clear cutting on the Flathead National Forest, with similar decreases across Montana in Region One of the U.S. Forest Service.  The case also had effects upon forests in Oregon, Washington and Idaho. 

The other major environmental case of the 1980s was Friends of the Wild Swan v. Department of State Lands, Flathead County District Court # DV-89-074(A) (1989).  This was a challenge to the Swan River State Forest Plan.  The result was a reworking of the State Lands' approach to environmental protection on the Swan River State Forest.  See Recap of Environmental Cases #17. 

3.      Recap of the 1990s and 2000s.

 

In the early 1990s, Roger Sullivan and I tried the case of Lowell McMillan v. U.S. Forest Service, McMillan v. U.S., 112 F.3d 1040 (9th Cir. 1997).  Lowell McMillan was a logger.  On the day before his wife gave birth to their first child, Lowell was crushed by a tree.  It grazed his ear and caused brain damage.  The tree severed his spine, and neurosurgeon Dr. Al Joern in Kalispell heroically put him back together.  Lowell remains a paraplegic requiring extensive care. 

Lowell was struck by a tree which had been struck by a first tree.  The man who felled the first tree had been a logger for only three weeks, and did not know of the rule that personnel must be cleared away from an area two tree lengths away before felling a tree.  Roger Sullivan came up with the theory that the Forest Service as landowner had a non-delegable duty in this case of abnormally hazardous activities to require a safety plan on the job.  We conducted a week-long trial on logging safety and the enormous cost of caring for a paraplegic with brain damage.  The judgment was $3.2 million, which at the time was Montana's largest personal injury judgment.  It was affirmed by the Ninth Circuit Court of Appeals.

 

At trial, the government's economist criticized our economist's approach which used historical interest rates to project into the future.  The government's economist said this was like driving 60 miles per hour forward while looking out the rearview mirror.  His approach was to only use current interest rates (which favored the government).  On cross-examination, I got him to admit that his approach was like driving 60 miles per hour forward while only looking out the side window. 

 

The Libby Asbestos cases.

 

In the fall of 1995 I began work on the Libby asbestos cases.  I was lead counsel for our firm on the Libby asbestos cases from fall 1995 to August 2016, when I turned it over to my partners Roger Sullivan and Allan McGarvey.

        

Because over two thousand cases are still pending, in one way or another, I am limited on the amount of stories I can tell.  Considerable information can be found in the books by Andrew Schneider and David McCumber titled An Air that Kills and An Air that Still Kills.  A number of documentaries have been done.  "Dust to Dust" stands out. 

        

In the fall of 1995, we had one case in the office, for Butch Hurlbert.  He was then 45 years old and had severe asbestos disease.  He had worked at the W.R. Grace mine and mill for three years in the 1970s.  I interviewed 15 co-workers, and 12 had been diagnosed.  I conducted extensive discovery, including a seven day deposition upon Earl Lovick, the one surviving Grace executive from Libby.  We settled the Hurlbert case for a very substantial amount in 1997, and shortly thereafter we tried the Les Skramstad case.  We got a verdict of $660,000, the highest in Lincoln County history.  The case is described in an Air that Kills. 

 

The Skramstad case was not reported in the Libby newspaper, the Western News.  It received just one small paragraph in the Kalispell newspaper.  Nevertheless, word got around Libby and I spent the next month after the Skramstad verdict in 1997 interviewing other mine workers.  In 1998 we tried the Bob Graham case.  After about seven days of trial, we settled for a very substantial amount.  Also in 1998 we tried the case of Gayla Benefield, personal representative for her mother Margaret Vatland, deceased.  Margaret Vatland's husband Perley Vatland worked at the Grace mine from 1957 to 1974.  He brought home considerable asbestos dust on his clothing.  Margaret Vatland died a long and excruciating death from asbestosis.  This case too is described in An Air that Kills.  As the book recounts, the plaintiffs turned down an offer of $603,000 from W.R. Grace.  The plaintiffs wanted a written apology, which W.R. Grace would not give.  The wrongful death verdict was $250,000.  Jurors later stated that this matched the amount W.R. Grace saved by deciding not to build a change house with showers for the workers. 

        

In 1999 we tried the Ken Finstad case.  Ken was also a Grace mine worker.  The verdict was $400,000 in compensatory damages and $83,000 in punitive damages.  The court at the punitive damages hearing instructed the jury to consider that there were 86 other cases pending.  Per a juror, the jury took $6 million and divided it by the 86 cases and (somehow) got $83,000 in punitive damages.

        

In 2000 we had difficulty getting trial dates.  In 2001 W.R. Grace filed for Chapter 11 bankruptcy reorganization.  All cases against W.R. Grace were enjoined.  The bankruptcy court also extended the bankruptcy injunction to our cases against the State of Montana and the railroad.  We appealed the injunction on the State cases to the Third Circuit Court of Appeals, and won.  In the meantime, we had prevailed in the Montana Supreme Court in the case of Orr v. State of Montana, 324 Mont. 391, 106 P.3d 100, (2004).  This case established that the State of Montana had duties to the mine workers and their families in negligence and under the Industrial Hygiene Act.  In 2010, after the bankruptcy court injunction was lifted by the Third Circuit, we entered into a settlement with the State of Montana for $43 million, for 1,128 individuals.   

        

From 2002 to 2010 I endured years of "wandering in the wilderness," overwhelmed by work in the Grace bankruptcy with no end in sight.  In the Grace bankruptcy, the court granted Grace 13 extensions on presenting a Plan.  The bankruptcy reorganization went from April 2001 to February 2014.  It is important to call it a "reorganization," not a bankruptcy per se because Grace emerged in 2014, with over $3 billion in assets.  In Europe companies are not permitted to do that.  In the bankruptcy context we ultimately entered a settlement with the BNSF Railway and its insurance companies for hundreds of Libby asbestos disease patients.  We also entered a partial settlement with W.R. Grace funding the Libby Medical Plan with $19.6 million. 

        

In 2015 we entered a confidential settlement with the Libby lumber mill for 714 plaintiffs.  In 2016 we entered a settlement with the State of Montana as round two for 826 plaintiffs, for $18 million with a possible extension to $23 million. 

        

Also, over the years we have entered hundreds of workers' compensation court settlements for Libby work exposures and consequent occupational disease.  I tried five occupational disease cases to judgment:

         Ruben Fellenberg, 2004 MTWCC 29

         Claude Paul, 2004 MTWCC 69

         Robert Mack, 2007 MTWCC 16

         Raymond Johnson, 2009 MTWCC 20

         Michael Keller, WCC No. 2012-2879

 

The record was 4-1.  I lost Fellenberg on a legal issue.  We have never lost a Libby case on the medicine or on industrial hygiene issues.  We have lost a few on legal issues.

In the course of the Grace bankruptcy we were challenged on every imaginable medical issue.  Grace had a team of pulmonologists analyze 550 medical charts from the Center for Asbestos Related Disease in Libby.  Grace had 13 expert witnesses.  For the bankruptcy plan litigation there were expert reports from all sides, then rebuttal expert reports over a year later.  We answered them all.  In the process we developed a "book" on Libby asbestos disease medical issues.  What does not kill you makes you stronger. 

The Libby cases go on and on.  We now have about 2,100 clients with asbestos disease from Libby exposures. 

PUBLIC INTEREST AND IMPACT CASES

Probably the three public interest cases with the greatest impact have been:

         1.      Of course, the Libby asbestos cases (see immediately above);

         2.      The Flathead Forest Plan case (see recap of environmental cases);

         3.      The Columbia Falls Aluminum Company profit sharing case (see below).

This was an action by about 900 workers at the Columbia Falls Aluminum Plant (CFAC) against the owners Brack Duker and Jerome Broussard.  Aluminum plants make or lose tens of millions of dollars each year.  After a string of bad years, ARCO sold the Aluminum plant in Columbia Falls to two of its Vice-Presidents Duker and Broussard.  They held mass meetings with workers.  They said if the workers would take a 20% pay cut, if the plant ever made a profit, the owners would split it 50/50.  The plant lost money in 1986, 1987 and 1988, but by 1989 it was making a profit.  The owners did not share the profits.  A whistle blower in the accounting department pointed this out, and got fired.  We undertook litigation.  It went on for nine years.  The problem was that there was no written agreement on the 50/50 deal.  There was one two-day trial on the issue of admissibility of key documents, where the owners mentioned the 50/50 deal.  The owners claimed attorney-client privilege.  The court ruled that the owners injected the documents in question into the case through references in financial filings.  On the CFAC case, Allan McGarvey and Roger Sullivan did yeoman's work.  I was lead counsel for the two day trial on the key documents, plus intense preparation for a scheduled two month trial.  The case settled for $100 million, and gave a major boost to the economy of Columbia Falls, Montana. 

RECAP OF ENVIRONMENTAL CASES BY JON L. HEBERING

        

My record in environmental cases is 20-1.  A number of the cases were team efforts in which I was counsel.  I certainly do not claim sole credit, but we did prevail in each case.  "Prevailing" is measured by whether the proposed project went forward, and whether relief sought was secured. 

1.      Cabin Creek Coal Mine (1976).

        

Intermittently from 1976 to 1989, I worked on the matter of the Canadian Cabin Creek Coal Mine proposal just north of the Canadian border, next to Glacier National Park.  Legal strategies were mapped out in a 1979 Ecology Law Quarterly article.  In July 1983, I testified at the Senate Subcommittee hearing on the project, which included massive coal strip mines eight miles north of the border along Glacier National Park.  The International Joint Commission recommended against construction of the mine due to impacts on fisheries and water quality in the North Fork of the Flathead River.  The Company dropped the project in 1989.

2.      Flathead National Forest Oil & Gas Leases (1977).

        

The Flathead Coalition appealed the Flathead National Forest EIS on oil and gas leases, due to the "blank check" grant of rights to the oil companies in the forest, without considering the consequences.  The EIS was ruled inadequate by the Regional Forester in 1977. 

3.      Kadillak v. The Anaconda Company, Department of State Lands,

           

198 Mont. 70, 643 P.2d 1178 (1982) (trial in 1977).

I represented 127 homeowners on the east edge of Butte.  The Anaconda Company had proposed a huge toxic waste dump next to their houses.  After a three week trial with multiple expert witnesses, the District Judge signed all findings The Anaconda Company put in front of him.  The Supreme Court reversed in a landmark case.  A new EIS was done, and the Company committed itself to conveyor dumping which would cut air pollution by 75%. 

 
4.      North End Salvage Sale (1979).

        

A huge 22 MMBF timber sale with 20 miles of new roads was proposed on the Canadian border near the northwest corner of Glacier National Park.  The sale would have roaded a wild area at a taxpayer loss, with significant effects on the grizzly bear, fisheries and Glacier National Park.  The Forest Service Environmental Assessment was appealed and argued before the Regional Forester.  In the end the sale died for lack of a bidder.  The Forest Service later proposed the area for wilderness, and it became a wilderness area recently.   

5.      Leisure Island (on the Flathead River);

           Androes, et al. v. Flathead County, Flathead County District Court #DV-80-420 (1980).

One mile south of Kalispell, a developer first proposed 33, then five trailers on an island.  Adjoining landowners challenged the septic permits and proved in court that the septic lines would be flushed in a two-year flood event.  The court ruled for us.  Ultimately the County made the island a natural area.

 
6.      Leonard v. Flathead County,

            Flathead County District Court #DV-80-108 (1980)

A major resort convention center was proposed on Whitefish Lake at the end of narrow neighborhood streets, in an area of leaky sewer lines.  I represented adjoining landowners.  The County zoned it resort commercial.  We prevailed at seven different administrative hearings, and in the lawsuit.

 

7.      U. S. v. 9.19 Acres, Gilbert H. Cate,

            D. Mont., Missoula Division, #CV-81-81-M (1981)

                 

The U. S. Forest Service condemned a road severing a major cattle ranch.  Environmen­tal defenses were raised to the condemnation, and the landowner prevailed after trial in the U. S. District Court, Honorable Russell M. Smith presiding.  No opinion was issued.

8.      Wanigan (about 1983)

 

The site was the mouth of the Flathead River at the north end of Flathead Lake, next to a 2,300 acre wildlife refuge and two eagle nests.  A 240-unit town with golf course and 225-slip marina was proposed on the banks of a river delta next to a wildlife refuge.  This was a very damaging proposal.  I represented adjoining farmers.  There were 950 petition signers.  The Flathead County Commissioners did not approve the subdivision, and the Flathead County Conservation District refused the 310 permit for the marina.  Years later the project became the Eagle Bend golf course.  No marina or townhouses were built on the banks of the river.

9.      Sowerwine v. Flathead County,

           Flathead County District Court #29,851 (about 1984)

 

A subdivision was proposed in a valley two miles west of Kalispell.  Questions of sewage, agricultural land, economics, and density were raised in court.  The developer dropped the project before a trial date was set.

10.    Center Mountain Timber Sale Appeal (Whale Creek in the North Fork) (1984)

 

This was a Forest Service Administrative Appeal of the Glacier View Ranger District 5-year timber program.  Issues were raised under NEPA, NFMA and the Endangered Species Act.  The Regional Forester remanded the sale to be redesigned.  The new design substantially adopted mitigation measures proposed by the appellants.  The revised sale failed for lack of a bidder.

 

11.    Proposal by Flathead County Commissioners to Pave the North Fork Road (about 1986)

 

Local environmental groups were prepared for a long battle and perhaps a major case under the Endangered Species Act.  In fact, this case was solved by one letter to the County Commissioners pointing out that state and local entities are subject to the federal Endangered Species Act.  The earlier federal version of the same project had drawn a jeopardy opinion.  The County Attorney agreed and the County Commissioners dropped the project.

 

12.    Akinkoka Timber Sale (about 1986)

 

This sale threatened the number one bull trout spawning stream in the Flathead.  The sale proposed clearcuts within a roadless area.  In the context of the Flathead Forest Plan appeal, a stay was obtained from the Chief of the Forest Service.  The sale was deferred and was not reoffered.

 

13.    National Wildlife Federation and Swan View Coalition v. James C. Overbay, Regional Forester,

            D. Mont., Missoula Division, #CV-87-80-M (1987)

 

After four years of meetings and appeals, the Flathead Forest issued a spring area closure in critical spring range for the grizzly.  The Regional Forester lifted the closure order to allow a motorcycle race in bear habitat.  Ten minutes before the hearing on a TRO, the Washington office of the Forest Service reinstated the closure order, thereby granting the relief sought.

14.    Bailey v. Board of County Commissioners,

            Lake County District Court #DV-88-250 and #DV-89-107 (1988)

 

Two suits challenged subdivision approvals.  The site is in a wild area near the north end of Swan Lake, including wet-lands.  Our summary judgment motion on certain procedural requisites to subdivision approval was denied by Judge Erickson.  The subdivision proposal was dropped in 1990.

 

15.    Resources Limited, et al. v. U.S. Forest Service,

            Ruling of the Chief of the U.S. Forest Service (1988)

        

In 1986, Resources Limited, the Swan View Coalition, the Audubon Society and Friends of the Wild Swan presented a wide ranging administrative appeal of the Flathead Forest Plan.  On 9/30/87, I presented a 167-page legal brief to the Forest Service.  The administrative record was five feet thick.  On 8/31/88, the Chief of the Forest Service granted major relief in the areas of old growth protection, road density in grizzly bear habitat, fisheries, and the enforceability of standards.

        

The proof we placed in the administrative record was compelling.  On the issue of road densities in grizzly bear habitat, Keith Hammer of the Swan View Coalition demonstrated to the Forest Service that it had far more roads on the forest than it publicly acknowledged in the forest plan documents.  Keith Hammer and others used Forest Service aerial photos which indicated undocumented roads.  They verified the existence of the roads by going out with mountain bikes taking photographs, and locating the roads on maps.  We demonstrated that the road densities in many areas of grizzly bear habitat were above the 1.0 mile per square mile standard. 

        

On the issue of fisheries protection, John Holt did map overlays of proposed timber sales, upon other maps showing land type 73 above critical trout streams.  Almost all critical trout streams for bull trout had large areas of land type 73 (a steep and highly erosive land type) above the streams, with timber sales proposed within the areas of land type 73. 

        

On the issue of old growth, using the Forest Service's own data, Rosalind Yanishevsky of Resources Limited demonstrated that remaining old growth constituted under 10% of each drainage in the North Fork of the Flathead River, and in each drainage in the Swan Valley.

        

For some reason the Forest Service picked the Flathead Forest Plan as the trial balloon for forest plans in the northwest.  It was the first one issued, in 1985.  Accordingly, there was great interest in our appeal.  I made two presentations to the Environmental Law Conference in Eugene, Oregon.  Rosalind Yanishevsky, Keith Hammer and I made presentations to a timber industry conference in Portland.  And, I made a presentation in Seattle at a Sierra Club Legal Defense Fund conference.  My 167 page brief on the appeal on the Flathead Forest Plan was used widely across the northwest, in connection with appeals of other forest plans.

16.    North Fork Preservation Association v. Dept. of State Lands and CENEX,

            238 Mont. 451, 778 P.2d 862 (1989)

In 1985 CENEX was granted a drilling permit for an ex­ploratory oil/gas well near Polebridge, two miles from Glacier Park.  In a challenge to the State's Environmental Assessment and failure to prepare an EIS, we prevailed on summary judgment in 1988.  The Montana Supreme Court reversed, holding that no EIS was necessary, and that no violations of law occurred. 

        

No well was ever drilled on the State Lands parcel.  However, an exploratory well was drilled on adjoining private land in 1989.  It was a dry hole.  That well too was challenged in NFPA v. Board of Oil & Gas and CENEX, Flathead County District Court #DV-89-412(B).  The Court stopped the project and revoked the Board's permit, as there had been no public notice and no public hearing in the process.  The Board then held a public hearing and reauthorized the well.  Roger Sullivan of our firm handled that case.  Ultimately Cenex decided not to develop the leases and released them back to the Department of State Lands, along with all such leases in the North Fork.

17.    Friends of the Wild Swan v. Dept. of State Lands,

           Flathead County District Court #DV-89-074(A) (1989)

 

This case litigated the Swan River State Forest Plan.  A week-long trial featured testimony from a grizzly bear expert, an old growth expert, and State Forest planners.  After the trial the judge did not rule for three years.  Before the ruling the State Forest withdrew the Plan and began reworking it. 

        

The Swan River State Forest had done no EIS at the forest level from 1978 to 1990.  The Court declined to order one, but adopted a number of our proposed findings of fact and found that comprehensive cumulative effects analyses on fisheries, old growth and grizzly bear habitat must be done at the timber sale level.   The State later undertook a comprehensive EIS on the state forests' standards and guidelines for old growth, fisheries, grizzly bear habitat and other matters at the state level.  Also, during the course of the case, State Lands dropped its plan to liquidate all old growth, adopted definitions for old growth, ceased cutting in the highway corridor, and closed many roads, thereby reducing the road density in grizzly bear habitat closer to 1.0 miles per square mile.  The clients' goals in the case were achieved.

 

18.    Friends of the Wild Swan v. Dept. of State Lands,

            Flathead County District Court #DV-89-073(B) (1989)

 

This was litigation of the Swan River Timber Sale.  This sale (and all others on the Swan River State Forest) was approved without evaluation of cumulative impacts, particularly upon grizzly bear habitat.  In October 1989 we filed a motion for summary judgment, supported by affidavits of expert witnesses in bear biology and old growth biology.  The timber company suspended the sale pending negotiations, but never did agree to a settlement.  State Lands and Friends of the Wild Swan (FOWS) agreed to a 10-year lease by FOWS of the contested area near the banks of the Swan River.  State Lands cancelled the timber sale and offered the timber company exchange volume.  The case was finally dismissed by stipulation.  The plaintiffs accomplished their goals.

 

19.    Whitefish Lake Golf Course Expansion (about 1990)

 

A new nine holes were proposed on wetlands adjacent to Lost Coon Lake.  The original proposal involved land disturbance within two feet of the lake.  The City Council, by conditions to a zoning permit, moved the project back to the 3102 contour, or 20 feet back from the cattail (or wetland) line.  After a Corps of Engineers §404 permit proceeding, the project was ultimately redesigned and moved further from the lake than was originally proposed.

 

20.    Coalition for Canyon Preservation and Resources Limited v. Hazen, et al.,

            D. Mont., Helena Division, #CV-90-141-M-CCL (1990)

 

The Federal agencies decreed that there shall be no more polebridge at Polebridge.  70% of local landowners wanted a one-lane bridge of timbered design at the historic location.  The Feds selected a 2-lane concrete bridge at a new site.  Despite 23 requests for a public hearing, the Corps of Engineers refused one.  The case challenged the lack of a public hearing and failure to comply with environmental review requirements.  On 12/19/90, Judge Lovell denied a preliminary injunction.

21.    Hornet-Wedge Timber Sale. (1992)

 

The Friends of the North Fork first challenged the Draft Environmental Assessment in July 1992.  Formal comments were entered on issues relating to the grizzly bear, old growth management indicator species, fisheries, roadless areas, and NEPA compliance.

        

A new EA appeared in June 1993.  Friends appealed the decision.  In the words of a Forest Service manager, "We fudged the model" on habitat blocks for pileated woodpecker and pine marten.  The full phrase was, "if we hadn't fudged the model we wouldn't have had a timber sale at all."  We got a staff person's notes of the meeting from a source.  The Kalispell newspaper would not publish them.  A Seattle newspaper did.  The timber sale was withdrawn.

 
Other Environmental Work

 

 

From 1977-1983 I served on the Steering Committee of the Flathead River Basin Environmental Impact Study, administering a $2.5 million EPA grant for development of baseline data on the Flathead Basin. 

        

From 1982-1985 I served as a Director on the Whitefish County Water and Sewer District.  A Water Quality Management Plan was prepared.

        

I have excluded four zoning cases on which the record is 3-1.

 

 

TRIALS BY JON L. HEBERLING LASTING MORE THAN ONE WEEK

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In each case I was lead counsel, except #7 McMillan and #13 W.R. Grace, which were joint efforts.  The overall record was 12-1.  I lost only the Canaday case.  In all other cases the clients obtained relief sought.  In #1 Kadillak, we won in the Montana Supreme Court.  In #13 we obtained a $19.6 million settlement; substantial, but less than our goal.

 

 

SUPREME COURT CASES BY JON L. HEBERLING

 

  1. *Beebe v. Johnson, 165 Mont. 96, 526 P.2d 128 (1974) (on brief).

  2. *Flathead County Welfare Department v. Endre, 166 Mont. 379, 533 P.2d 959 (1975).

  3. *State ex rel Montana Power Co. v. District Court, 167 Mont. 533, 540 P.2d 318 (1975) (Blasdel).

  4. *Montana Power Co. v. Wolfe, 169 Mont. 234, 545 P.2d 674 (1976) (on brief).

  5. *Stubben v. Flathead County Department of Public Welfare, 171 Mont. 111, 556 P.2d 904 (1976).

  6. *Brown v. North American Mfg. Co., 176 Mont. 98, 576 P.2d 711 (1978) (on brief).

  7. *Kadillak v. Anaconda Company, 184 Mont. 127, 602 P.2d 147 (1979).

  8. *Doble v. Talbott, 180 Mont. 166, 589 P.2d 994 (1979) ( on brief).

  9. Kadillak v. Montana Department of State Lands, 198 Mont. 70, 643 P.2d 1178 (1982) (fees issue).

  10. *Blasdel v. Montana Power, 196 Mont. 417, 640 P.2d 889 (1982).

  11. *Harper, State ex rel v. Waltermire, 213 Mont. 425, 691 P.2d 826 (1984).

  12. Evans v. Teakettle Realty, 226 Mont. 363, 736 P.2d 472 (1987).

  13. North Fork Preservation Association v. Department of State Lands, 238 Mont. 451, 778 P.2d 862 (1989).

  14. *Ingbretson v. Louisiana Pacific, 272 Mont. 294, 900 P.2d 912, (1995).

  15. Kaeding v. W.R. Grace & Co., 289 Mont. 343, 961 P.2d 1256, (1998).

  16. *Orr v. State of Montana, 324 Mont. 391, 106 P.3d 100, (2004).

  17. Fellenberg v. Transportation Insurance Co., 326 Mont. 467, 110 P.3d 464, (2005).

 

*Cases won in the Montana Supreme Court.  My overall record is 12-5