Kohler v. Keller
Montanans’ Right to the Restoration of Their Contaminated Land
Montanans are deeply connected to the places where they live and work. Protecting the integrity of the land has long been, and remains, an important part of our practice.
In the spring of 2008, a gasoline tanker truck pulling a pup-trailer flipped on the east shore of majestic Flathead Lake, the largest freshwater lake west of the Mississippi. Six thousand gallons of gasoline flowed downslope through fractures in the bedrock, polluting the water table and saturating the subsurface soils of four homes downslope from the spill. It was a lovely shoreline neighborhood, occupied primarily by retirees. Barbara and Ron Kohler looked forward to spending their autumn years peacefully on their dream property. Ron had built their dream place, installing beautiful masonry features and lovingly constructing a sewing studio above the garage for Barbara, a talented seamstress.
The Environmental Protection Agency stepped in quickly to assess the level of contamination. But under applicable federal laws, the agency was focused on preventing the gas from seeping all the way to the lake and “remediating” the contamination to pre-determined public health standards—not restoring the land to its pre-contaminated state. The Kohler, Jones, Arnold, and Sykes families, the four affected homeowners, were evacuated to temporary housing, but when they were allowed to return they could smell gasoline; they knew they were still breathing in vapors. The ongoing contamination was especially noticeable in the spring, when seasonal snowmelt pushed water table higher, forcing toxic vapors into the air. Relying on Montana’s more comprehensive jurisprudence, we set out to help these families achieve restoration of their beloved homesteads.1
“The Kohler, Jones, Arnold, and Sykes families, the four affected homeowners, were evacuated to temporary housing, but when they were allowed to return they could smell gasoline; they knew they were still breathing in vapors.”
As a firm, we have a longstanding tradition of representing landowners seeking restoration of and compensation for damaged or contaminated land. In the 1970s, we represented a farmer in the Lower Flathead Valley whose formerly productive agricultural soils became saturated with high water and attendant salts, due to the rising water levels caused by Kerr Dam, which keeps the waters of Flathead Lake at a high water mark throughout the growing season. Though the Montana Power Company had completed the Kerr Dam years earlier, we were able to successfully argue that the damage it caused was continuing and not actionable until “stabilized”, and, accordingly, the statute of limitations did not allow the Power Company to avoid responsibility for the damage to the farmer’s land.2 This ruling is an important precedent that has been used to hold companies responsible for their pollution, with the two-year statute of limitations not beginning to run while the contamination has not yet stabilized.
In Somers, we successfully represented a group of homeowners living in old houses of former workers near the closed railroad tie treatment plant, whose properties had been contaminated by years of industrial chemicals leaching into the neighborhood. Given the nature and extent of the contamination, the homeowners preferred receiving damages and the attendant sale of their properties to the years of work that restoration would entail. Meanwhile, the EPA ordered cleanup continues.
Likewise, in Missoula, we successfully argued on behalf of homeowners that a plume of pollution continued to contaminate a neighborhood, years after the closure of the White Pine Ash facilities. This case was resolved on the basis of damages, while the MDEQ ordered cleanup continued.
- See Sunburst Sch. Dist. v. Texaco, Inc., 2007 MT 183, where the Montana Supreme Court adopted the Restatement (Second) of Torts § 929 cmt. b, to allow a party to elect restoration costs as his measure of damages. Sunburst, ¶ 38. The term “restoration damages” refers to an award of damages that exceeds the diminution in value of the property and reflects the amount that the party will be forced to spend to restore his property to its previous condition. An award of restoration damages may be necessary in certain cases to compensate fully an injured party. Sunburst, ¶ 33.
- See Blasdel v. The Montana Power Company, 196 Mont. 417, 640 P.2d 889 (1982).