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Montana Pole & Treating Plant v. I.F. Laucks & Co.

ELR Citation: 23 ELR 20843
Nos. Nos. 91-36024, -36101, 993 F.2d 676/36 ERC 1657/(9th Cir., 05/10/1993)

The court affirms a district court decision that Montana's two-year statute of limitations for property damage claims bars claims by a Superfund site owner against manufacturers of chemicals discarded by the owner on the site. The court holds that the discovery rule, which tolls the statute of limitations in situations where the owner did not know or could not have known of its injury, does not apply because the site owner concedes that it knew no later than 1983, three years before it filed its suit, that the chemical contamination had damaged its property. The site owner also knew that the contamination was permanent in that it would continue until cleaned up. The court holds that the site owner waived its argument that the statute of limitations should be tolled because the chemical manufacturers allegedly made fraudulent misrepresentations. The argument was not timely raised in the site owner's opening brief. The court holds that the site owner's claim is not a continuing nuisance or continuing injury claim under Montana law, because none of the chemical manufacturers had any control over the release of the waste chemicals. It did not emanate from their property and they could not abate the release. Further, no waste was released during the statutory period because the site owner ceased operations in early 1984. The court finds unpersuasive the argument that the injury continued into the statutory period because the chemical contamination remained on the property. Finally, the court holds that the statute of limitations began to run no later than May 1984, because damages at the site were sufficiently stabilized and permanent then.

Counsel for Plaintiff-Appellant
Torger S. Oaas
P.O. Box 76, Lewistown MT 59457
(406) 538-2338

Patti A. Goldman
Public Citizen Litigation Group
2000 P St. NW, Ste. 700, Washington DC 20036
(202) 833-3000

Counsel for Defendants-Appellees
Bruce A. Featherstone, Laurie L. Korneffel
Kirkland & Ellis
1999 Broadway, Ste. 4000, Denver CO 80202
(303) 291-3000

Dolphy O. Pohlman
Corette, Pohlman, Allen, Black & Carlson
Mayer Bldg., 129 W. Park St., P.O. Box 509, Butte, MT 59703
(406) 723-3205

Wright, J. (before Thompson and Kleinfeld, JJ.)