Yellowstone National Park, Gardiner to address arsenic in sewage

Written by: Brett French,  Billings Gazette

Three years after filing suit against Yellowstone National Park and four years after a problem was first identified, a settlement conference has been set for May 9 between the park and the Gardiner-Park County Water and Sewer District over excessive levels of arsenic in the Gardiner sewage ponds.

“It looks like we have made some headway,” said Todd Shea, a Bozeman attorney representing the sewer district.

The sewer district sued in 2016 saying the park had not been responsive to requests to address the issue. The problem has been identified as either a leak into the pipes that deliver wastewater from Mammoth Hot Springs, Wyoming — the headquarters for the park’s staff — or manholes that are allowing arsenic-laden runoff into the system. Tests of the wastewater showed the arsenic levels coming from the park were 40 times higher than water from Gardiner’s wastewater system.

Mammoth does not have its own wastewater treatment facility. Tests performed on the drinking water at Mammoth ruled out that as the source of heavy arsenic.
Arsenic is a naturally occurring element found in rocks and soil and is prevalent in the water coming from Yellowstone’s thermal hot pools and geysers. If ingested in large enough quantities, arsenic can cause a variety of ailments in humans affecting organs as diverse as the heart and liver, lungs and nervous system.

U.S. drinking water is permitted to contain up to 10 parts per billion of arsenic, according to the National Institute of Environmental Health Sciences. Some states have stricter standards, but Montana adheres to the federal level.

Tests by the Montana Department of Environmental Quality in 2015 showed high arsenic levels in rivers that drain from Yellowstone National Park into Montana, including 367 ppb in the Firehole, 197 ppb in the Gibbon and 300 ppb in the Yellowstone River.

In 2015 the Montana Department of Environmental Quality advised the Gardiner Water and Sewer district that sludge should be removed from its treatment ponds and new liners installed. But undertaking that task made no sense if the arsenic problem was not addressed.

After twice advising Yellowstone officials of the problem by letter with no response, the complaint said the park’s staff finally acknowledged its role for the issue during a meeting and agreed to help fund the sludge removal from the wastewater ponds, a project estimated to cost about $2 million.

More than a year and a half after first mailing the park’s staff for specifics on how it would help, the Gardiner Water and Sewer District was told by park officials that the agency would not be able to address the problem until 2020 due to a lack of funding, according to the complaint. That’s when the district sued.

Since that lawsuit was filed in U.S. District Court in 2016, the sewer district amended its complaint last year and then both parties sought a suspension of the proceedings which Judge Timothy Cavan denied in November. He also ordered the park to respond to the amended complaint by Dec. 22.

That was the same day that the government shutdown began, the longest in U.S. history and stretching to Jan. 25.

Just two days before the shutdown, a settlement conference between the sewer district and park was approved by the court in an attempt to keep the case from going to trial. The settlement talks will be overseen by U.S. Magistrate Judge Jeremiah Lynch. Magistrate judges assist district courts.

The first conference was set during the government shutdown, so another was scheduled for May 9 before Lynch in Billings at 9 a.m.

State Finds NorVal GM Harassed, Retaliated Against Employee

Source: A.J. Etherington. Glasgow Courier, 10/30/19.

The Montana Human Rights Bureau (HRB) released the decision of the Office of Administrative Hearings on the case of Shalaine Lawson against NorVal Electric Cooperative on Oct. 22. The decision ruled in Lawson’s favor and determined that NorVal general manager Craig Herbert had sexually harassed and discriminated against Lawson and then retaliated against her after she attempted to report her claim to Herbert, Norval’s board and the HRB.

The findings highlight a long and slow escalation of harassment from May to October 2017 that show Herbert made inappropriate comments and inquiries into Lawson’s sex life and appearance. Those comments included alluding to her having affairs or suggesting that her appearance meant she wanted to have an affair. The escalation culminated in Herbert inviting Lawson up to his hotel room while they were at the Montana Electrical Cooperative Association Convention in 2017. Lawson refused to meet him in his room following the request.

Following the convention, Lawson informed Herbert of her views about his behavior and sought to report his behavior. Under NorVal’s sexual harassment policy, the only method of reporting for an employee is to their direct supervisor. Unless the supervisor is the harasser, then the report can be made to the general manager. In Lawson’s case, Herbert was both. As a result, Lawson was unsuccessful in reporting her claim or in having it investigated. She then attempted to make a report to the NorVal board, however Herbert blocked her from making the report and instead stated she must make the report solely to him.

Eventually, Lawson attempted to bring her complaint to the attention of NorVal’s attorney, Matt Knierim, but he too refused to hear her complaint and sent her back to Herbert. The findings noted that after exhausting all other options of making a report, Lawson eventually filed a claim with the HRB, sat for depositions, investigations and the three days of hearings in the case.

After her attempts to report to Herbert and her subsequent report to the HRB, Lawson alleged she suffered what was described in the hearing findings as, “a constellation of retaliatory acts as a result of her protesting Herbert’s harassing conduct.” The documents ruled that Lawson was subject to “adverse employment action” after Herbert attempted to intimidate Lawson and told other NorVal employees and Lawson herself that he was investigating her for fraud.

“Herbert’s efforts to malign and to defame Lawson after she complained of his conduct had a direct effect on her ability to return to her position,” wrote the hearing officer, before going on to say, “No professional can or should tolerate an individual’s effort to diminish his or her reputation based upon fabrications and exaggerations. Calling into question Lawson’s ability to ethically and effectively perform her job duties had a material and adverse effect on Lawson’s employment and her potential future employment in that region of Montana.”

The hearing officer described Herbert’s defense against the complaint as illogical and self serving. Writing in the decision, the officer even highlighted concerns that evidence presented by NorVal was inconsistent with the same evidence presented in discovery. Specifically, detailed sentences about the complaint and Herbert’s response had been removed from a timeline produced by Herbert to support his testimony.

The officer wrote, “Herbert testified he begins a timeline on every employee at or near the employee’s time of hire to ‘protect himself.’ While that may be the case, Herbert offered no credible explanation as to the discrepancies between the two timelines NorVal produced during discovery and for hearing.”

Reached for comment, NorVal Attorney Max Davis, stated that any decision about an appeal or Herbert’s employment was up to the board. He denied knowing when the next board meeting would be. Herbert was also reached for comment and, on Oct. 28, said the board was scheduled to meet at the end of October, but he declined to say what day. In regards to whether the board would discuss an appeal he stated, “I’m sure they are going to discuss it.” Both Herbert and Davis provided no comment on the HRB decision.

Phone calls were placed to all eight board members but, at press time, only Lee Risa had been reached by the Courier and he referred all questions to NorVal attorney Max Davis.

The state’s decision follows on the heels of the US Equal Employment Opportunity Commission filing a federal lawsuit in Great Falls on Oct. 16 against NorVal for the same incidents. It was unclear at press time whether the decision by the HRB in Helena would affect the federal lawsuit, but questions were sent to EEOC attorney Amos Blackman. The HRB decision also follows on a suit filed in Valley County District Court by Lawson against NorVal, Herbert, the eight board members, Chris Christiansen, Lee Risa, Sam Gundermann, Rick Molvig, Kurt Breigenzer, Ron Reddig, Gary Meyer and Rocky Kittelson, NorVal Attorney Matt Knierim and 10 John Does. (For more on those lawsuits see EEOC Sues NorVal in the Oct. 23 edition of the Glasgow Courier).

EEOC Sues NorVal

Allege GM Sexually Harassed Employee, Retaliated After She Reported It.

Source: Glasgow Courier, A.J. Etherington.

The U.S. Equal Employment Opportunity Commission has filed a lawsuit in Federal Court in Great Falls, Mont., alleging that NorVal Electric Cooperative’s General Manager Craig Herbert sexually harassed a female employee and then subsequently retaliated against her when she tried to report his conduct.

In a press release, the EEOC said NorVal, “violated federal law when its general manager sexually harassed a female employee and then retaliated against her when she objected to his conduct and sought to report it.”

The 11-page lawsuit filed on Oct. 16 alleges that Herbert harassed then NorVal office manager Shalaine Lawson with unwelcome sexual comments and physical touching.

The EEOC release stated, “from May to October 2017, NorVal’s office manager faced unwelcome sexual comments and physical touching from her direct supervisor, NorVal’s general manager. The conduct escalated during a business trip when he suggested that they meet in his hotel room, which she adamantly refused. When she sought to report his conduct, he made escalating threats against her job.”

According to a civil suit filed by Lawson in Valley County District Court, Herbert, the board and NorVal’s attorney – Matt Knierim – all allegedly insisted that the only person she was allowed to make a formal complaint of sexual harassment to was Herbert directly. Unable to report the harassment inside the company, Lawson then filed a complaint with the Montana Human Rights Bureau and the EEOC.

“In response [to her complaint], NorVal took steps to terminate her. NorVal and its general manager’s hostility toward her and the severe emotional distress it caused, forced her to take unpaid leave and has prevented her from returning,” said the EEOC press release.

Reached for comment, NorVal attorney Maxon Davis of the law firm Davis, Hatley, Haffeman & Tighe, P.C. in Great Falls, stated that they had already argued against the case in front of the Human Rights Commission in March of 2019, but he added that, to date, no decision had been made. He also alleged that the initial investigator had dismissed the case, and that it was only after an appeal that the HRC sent the case to an administrative hearing.

In fact, a remand order filed by the Human Rights Commission directly addressed the early dismissal of the case by the investigator. According to the order, the investigator cited a lack of corroborating first-hand witnesses as a justification to use discretion to dismiss the case. The commission reversed that decision citing that witnesses were not interviewed because they “lacked firsthand knowledge.”

The commission ruled, “The lack of investigation into corroborating witnesses, in light of the identity of the alleged harasser and the failure of the policy to provide an alternative for reporting and addressing harassment, is an abuse of discretion.” The case was then remanded by the commission to undergo a hearing in front of the Office of Administrative Hearings.

During the administrative hearing in March, Davis said, “NorVal presented evidence vigorously disputing Ms. Lawson’s accusations.” When asked to address the evidence directly, Davis pointed to a number of witnesses who had testified against her, but he provided no specific names nor did he quote testimony (the evidence presented and the complaint filed with the state were both unavailable at press time). He also reiterated that no decision from the Human Rights Commission had been reached since the hearing ended in March, a span of seven months.

“We gave considerable evidence that she was not sexually harassed and that she was not retaliated against. And, that remains our position with this new lawsuit,” said Davis referring to the EEOC suit filed on Oct. 16. He also remarked on the EEOC intervention saying that he believed the federal government filing a lawsuit after a Human Rights Hearing was unprecedented. He stated directly, “I’ve never seen that before.”

Sexual harassment and discrimination in the workplace is a violation of federal law under Title VII of the Civil Rights Act of 1964, which also prohibits retaliation for making a complaint for a Title VII violation. Before filing the lawsuit, the EEOC said they attempted to reach a pre-litigation settlement through its voluntary conciliation process. The filing documents state, “The EEOC was unable to secure from Defendant [NorVal Electric Cooperative] a conciliation agreement acceptable to the EEOC.” Davis confirmed an attempt at conciliation was made before the lawsuit was filed.

According to the EEOC’s website, federal lawsuits filed by the EEOC are relatively rare. In fiscal year 2018, the EEOC filed only 41 lawsuits for sexual harassment out of 66 total discrimination lawsuits filed across the country. The 41 sexual harassment lawsuits are a small sample of the 7,609 sexual harassment charges received by the commission in that same year, making federal lawsuits for sexual harassment a rare step for the federal government to undertake.

According to the EEOC report for FY 2018, “data show that retaliation continued to be the most frequently filed charge filed with the agency, followed by sex, disability and race. The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment.”

“The EEOC’s Select Task Force on the Study of Harassment in the Workplace notes that power disparities can be a risk factor for harassment,” said EEOC Seattle Field Office Director Nancy Sienko. “Here we found that the company’s top executive not only sexually harassed his direct subordinate, but also used his position to circumscribe her ability to report his conduct. It’s critical that we send the message loud and clear — nobody is above the law.”

The EEOC has increased enforcement efforts over the last few years with increases in lawsuits in 2018, rising from 2017 by almost 50 percent. Lead Trial Attorney for the EEOC Amos Blackman noted that eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes is one of six national priorities identified by the Commission’s Strategic Enforcement Plan.

As the lawsuit filed by the EEOC goes forward, a separate civil lawsuit by Lawson in Valley County District Court in Glasgow goes further in naming NorVal Electric and Craig Herbert directly, but also names the NorVal Board of Directors and NorVal Attorney Matt Knierim for their roles in allegedly preventing Lawson from making a complaint.

That 25-page complaint, filed by Lawson’s attorney Todd Shea, of Shea Law Firm, P.L.L.C in Bozeman filed on Oct. 9, 2019, documents in greater detail the sexual harassment complaints and the alleged mishandling of the report. Specifically, it alleges that board members and Knierim were aware of Lawson’s complaint and did nothing to either hear her complaint or investigate the accusations, stressing that she must make the complaint to Herbert himself. As a result, Lawson took a leave of absence after escalating retaliation from Herbert and without being given the chance to make her reported claim to the board. The civil suit alleges that Lawson has suffered psychologically as a result of the harassment.

Davis was asked about the civil suit in District Court, but was unaware of it as of Oct. 21and therefore did not want to comment on the filing.

The Courier reached out to NorVal Electric and spoke to Craig Herbert who referred questions to his lawyer, Maxon Davis. The Courier also reached out to the board, leaving messages for many that were not returned before press time, but spoke to two board members who provided no comment and referred inquiries to Davis.

Reached for comment, Lawson’s lawyer Todd Shea, said that he and his client are currently awaiting the Human Rights Commission decision from the hearings in March.

The Courier also reached out to the State of Montana Human Rights Commission in order to acquire a copy of that complaint and the evidence presented at the hearing, but the documents are not public until a decision by the commission is reached. A request to obtain the documents was made nonetheless.

 

UIM Limit Paid to Injured Motorcyclist

Source: Montana Law Week

INSURANCE: UIM limit paid to injured motorcyclist after challenge to insurer’s reducing clause vis-à-vis separate recovery from tortfeasor’s employer.

Domino’s Pizza driver Daniel Goerss turned in front of motorcyclist Will Bakke in 5/16, throwing him 20 feet into a utility box. Bakke suffered a lumbar burst fracture, fractured
left femur, and fractured coccyx and underwent 4 surgeries.

Goerss’s insurer Progressive paid its $25,000 policy limit. Progressive was also the UIM carrier. Bakke sued Domino’s. He requested UIM from Progressive 5/24/17. Adjuster Adam McMurray in Bozeman responded 5/25 with “another copy of the policy declarations confirming the policy limit of $25,000 available as well as a copy of the UIM portion” of the policy and “please note the Limit of Liability under the coverage which
states- The damages under this Part III will be reduced by all sums:
1. paid because of bodily injury by or on behalf of any persons or organizations that may be legally responsible;
2. paid under Part I – Liability To Others; and
3. paid or payable because of bodily injury under any of the following or similar laws:
a. workers’ compensation law; or Verdict/settlement/judgment reports invited.
b. disability benefits law.

So this means that this UIM coverage will come into effect if it is proven the damages incurred exceed all underlying liability coverages. In the event the excess liability coverage with [redacted] for Domino’s is not adequate and this coverage is
triggered we will need copies of the policy declarations for all underlying liability coverages” and “I will also need the information previously requested and full documentation of all damages claimed.”

Bakke and Domino’s insurer mediated 5/9/19 and settled on undisclosed terms.

Bakke’s attorney wrote Progressive 5/22/19 reiterating his request for UIM and advising that its reliance on its reducing clause was a violation of Montana law. He advised that there was little question that Goerss is judgment proof — he was 19 when he hit Bakke’s motorcycle and is unemployed. He stated that the reducing clause is hardly clear, particularly as to how it may apply to Bakke, but that Progressive appeared to claim
that because Goerss was a Domino’s employee and because Bakke chose to pursue an independent, long, and expensive claim against Domino’s, Bakke’s UIM became excess coverage only, which would only be payable if Domino’s coverage was not enough to cover his injuries. He stated that there is no support for this argument to avoid previously paid for UIM benefits in Progressive’s declaration page or policy, and that it conflicts with a black letter Montana principle that an “insurer is under a duty to construe the factual assertions from the perspective of the insured rather than solely from the insurer’s own perspective.” Staples (Mont. 2004). He stated that it also runs afoul of Montana’s reasonable expectations doctrine, and that the reasonable expectation of Bakke’s declaration page and UIM policy for which he paid premiums would indicate that he would be entitled to $25,000 UIM after being struck by Goerss given that Goerss was underinsured as defined under the policy. He asserted that Progressive’s reducing clause is “nothing more than subrogation that Progressive is attempting to award itself” in violation of Montana’s “made whole” doctrine and is subject to the “common fund” doctrine which provides that “when a party through active litigation creates, reserves or increases a fund, others sharing in the fund must bear a portion of the litigation costs including reasonable attorneys’ fees.” Hall (Mont. 2011). He asserted that Progressive is the “passive beneficiary” of Bakke’s claim against Domino’s at no cost to Progressive, which further violates the law. He further asserted that Progressive’s interpretation of its reducing clause would result in unjust enrichment to Progressive, while Skauge (Mont. 1977) held that if one party to the insurance transaction must bear the loss, it should be the insurer, since that is the risk the insured paid it to assume.

Progressive adjuster Carla Giroux in Stevensville wrote Bakke’s attorney 5/28 “thank you for providing the additional information needed to evaluate Mr. Bakke’s injuries and potential future needs related to this pending underinsured motorist injury claim” and advising that “we have issued payment in the amount of $25,000 which represents Mr. Bakke’s underinsured motorist coverage.”

Shea Law Firm Defends Stalking Charge Getting it Dismissed.

Gallatin County Sheriff’s Office Deputy filed a stalking charge against a fellow deputy, who was represented by the Shea Law Firm. The deputy charged with stalking was terminated from Gallatin County Sheriff’s Office but then successfully sued and obtained reinstatement of his position and settled with Gallatin County.

The Shea Law Firm defended the stalking charge and the Court dismissed the charge finding the charges “stupid.”

Case Unripe for Summary Judgment

Source: Montana Law Week

INSURANCE: Uncertainty and unresolved facts & claims in sewer line easements suit make this declaratory action as to defend/indemnify duties unripe for summary
judgment… Gilbert.

Gardiner-Park Co. Water & Sewer Dist. claims that Donald & Gina Knight constructed 2 homes on their property that improperly overlay and endanger its sewer line. It claims that they constructed a house for their son Landon in 2014 over its sewer lines despite its objections. It claims that this house could crush the old clay tile line, causing disruption or leakage into the Yellowstone River. It claims that they constructed a 2nd
house over the line subsequent to and in violation of a 2015 easement signed by Donald Knight. Knights contest validity of his signature, claiming that he signed following surgery and while under the influence of medication. The District alleges that prior to construction it agreed to pay for and construct a new manhole to reroute the line and accommodate the 2nd house.

This rerouting allegedly involved obtaining another easement from Knights’ neighbors, Obers. Both easements prohibited construction within 5 feet of the line without the District’s permission. However, the District’s underlying suit claims that Knights constructed the 2nd house over the line in violation of both easements. A survey prepared for the District concluded that parts of both homes were within the easements. The District also alleges that Knights caused a retaining wall to collapse, threatening support for part of the line above the river. Its underlying suit accordingly brought claims of intentional trespass, intangible trespass, public & private nuisance, negligence/strict liability, and breach of contract against Knights. Its underlying
suit seeks a declaration that Knights violated the easements, an award of damages, costs, and attorney fees, and an order directing removal of structures threatening the line and violating the easements (both homes and a shed) at Knights’ expense.

Knights counterclaimed against the District alleging that it was aware of placement of the homes and improperly waited to raise concerns until 4/16. They dispute validity of the 2015 easements, claiming that Donald Knight was taking strong pain killers at
the time of signing. They claim that the District improperly forced them to remove parts of the 2nd home’s roof & porch, causing damage to their property. They request damages, attorney  fees & costs, denials of the District’s claims, and injunctive orders prohibiting removal of any structures and directing that the homes “remain in place.”

MACo Joint Powers Insurance Authority filed a declaratory action asking the Court to declare that it has no duty to defend or indemnify the District based on “clear exclusions” in the policy. MACo and the District request summary judgment. The Court heard argument 2/11/19. A notice and affidavit of Todd Shea filed 2/8/19 indicate that the District has filed a contribution & indemnification claim against Standish Excavation as a 3rdparty Defendant in the underlying suit. Further, there are expected amendments to the pleadings by some or all of the parties as a result of this and further discovery is anticipated.

The District raises the issue of ripeness, relying on cases holding that “where there remain unresolved relevant issues in the underlying case, inseparable from the issues presented in the declaratory judgment action, the duty to indemnify is not ripe for resolution.” American Reliable (D.Mont. 2018); Skinner (Mont. 2005). The concern is that ruling on the duty to indemnify before allowing the facts to be determined in an underlying action fails to be a final adjudication on the indemnification issue. Such
a ruling may be subject to amendment or nullification when the underlying case is finally resolved. Northfield v. MACo (Mont. 2000).

MACo responds that its summary judgment motion seeks a ruling that it is not obligated to defend or indemnify the District. It points out that there is a long line of Montana cases that have decided whether coverage exists by analyzing whether the allegations of the underlying complaint trigger the duty to defend. Further, since the duty to defend is broader than the duty to indemnify, if there is no duty to defend, the underlying claim
falls outside the scope of coverage. Twite (Mont. 2008). “Put another way, while an insurer’s duty to defend is triggered by allegations, an insurer’s duty to indemnify hinges not on the facts the claimant alleges and hopes to prove but instead on the facts, proven, stipulated or otherwise established that actually create the insured’s liability.” Freyer (2003). MACo further relies on Grindheim (D.Mont. 1995) (“An insurer’s duty to defend
its insured arises when the insurer, through reference to pleadings, discovery, or final issues declared ready for trial, has received notice of facts representing a risk covered by the terms of the policy.”). Thus, MACo argues, if a claim falls unequivocally outside the policy’s coverage, there is no basis for imposing a duty to defend. MACo contends that the District is attempting to eliminate the duty to defend analysis by merging it into the
narrower duty to indemnify analysis. It points to case law holding that an insurer “had no duty to defend [the insured] because the complaint cannot be construed to give rise to a claim under the terms of the policy.” Weitzel (Mont. 2016). It rejects the District’s argument that unresolved factual issues preclude a determination of coverage, since the Supreme Court has recognized that “factual disputes between the parties relevant to
coverage must be resolved in favor of coverage.” Id. It argues that Northfield and American Reliable are not on point because they addressed only the issue of indemnification and did not analyze the duty to defend.

The District counters that MACo misconstrues its ripeness argument. It relies on authority that where there are unresolved relevant issues in the underlying case that are inseparable from the issues in the declaratory action, the duty to indemnify is not ripe. It argues that there are unresolved issues here that are inseparable from MACo’s summary judgment motion seeking a ruling that it is not obligated to defend or indemnity the District for Knights’ claims. It takes issue with MACo’s effort to distinguish Northfield as only addressing indemnification since the opinion notes at the outset that MACo had already assumed the defense, so the duty to defend was not at issue. It reiterates
that it relies on Northfield for the holding denying Northfield’s request for a declaratory ruling on its potential indemnification obligations because there were unresolved factual issues in the underlying case. Northfield also relied on the DJA, which authorizes a court to refuse to enter a declaratory ruling if doing so “would not terminate the uncertainty or controversy giving rise to the proceeding.” §27-8-206. In Northfield, MACo successfully
defended against Northfield’s motion by contending that the plaintiffs in the underlying case could subsequently amend their complaint and therefore Northfield’s motion seeking declaratory relief on its indemnification obligation was premature. The District maintains that American Reliable ultimately determined that it could not rule on whether there was an occurrence under the policy because of ongoing factual issues in the underlying case. Given this decision, it determined that American Reliable’s duty to defend was ongoing.

There are not only unresolved factual issues in the underlying litigation here, but also claims that have not been filed. This case is not to the stage where there is sufficient finality of pleadings, discovery, or final issues declared ready for trial, such that the Court can determine MACo’s duty to indemnify or defend. If the Court ruled on the summary judgment motions at this juncture, such rulings may be subject to nullification or amendment after further amendment of the pleadings, further discovery, or further proceedings. The Court is cognizant of MACo’s desire to have a ruling based on the state of the pleadings at the time it filed its summary judgment motion. However, doing so “would not terminate the uncertainty or controversy giving rise to the proceeding.” There is sufficient basis to deny MACo’s motion in keeping with the DJA §27-8-206.

The parties are preparing amended pleadings, most significantly Knights’ assertion of a 3rd-party claim which, if filed, would be crucial to MACo’s assessment of its position and the Court’s determination of the matters presented by the summary judgment motions now before the Court. The District has just recently asserted a 3rd-party contribution & indemnification claim, bringing a new party into the underlying case. Discovery has already been extended into 5/19,  and the addition of a new party may give rise to further requests for amendment of the Scheduling Order. The procedural status
puts this case beyond the level of uncertainty and unresolved facts in Northfield or American Reliable.

MACo’s motion for summary judgment and the District’s cross-motion for summary judgment must be denied.

Appeal of Investment Accounts Interpleader Dismissed

Source: Montana Law Week

APPEAL BOND: Appeal of investment accounts interpleader dismissed at request of Appellant for inability to post bond… order.

Dennis Bohnert has an investment account, a traditional IRA, and a Roth IRA with Edward Jones. His stepdaughter Lisa Copiskey filed a motion in Tribal Court in 9/15 contending that they belong to her. Tribal Court granted the motion and prohibited Bohnert from dissipating any funds. Copiskey requested that Jones not release any funds to Bohnert. He requested access to the accounts for living expenses and defense costs. Both appealed to Tribal Appeals Court in 5/16 contesting the orders. Jones placed a hold on the accounts and advised that it would release funds to Bohnert if the parties agreed on an amount. Because they continued making competing demands to the funds, Jones filed an interpleader in 9th Judicial Dist. Court. Bohnert opposed the interpleader and counterclaimed against Jones. Judge Best dismissed the counterclaim and awarded Jones $24,959 attorney fees & costs, 2/3 apportioned to Bohnert. (MLW 1/28/17). Bohnert appealed and moved for a stay and waiver of appeal bond, which Jones opposed. The motion was denied 4/18/17. Bohnert filed 2 motions in the Supreme Court seeking the same relief and both were also denied. He now moves to dismiss his appeal due to the fact that he has made “numerous attempts to obtain the funds to prosecute his appeal, i.e. the purchase of a Supersedeas Bond from a commercial surety,” by moving for a stay and waiver of bond in District Court and the Supreme Court in view of Jones withholding monies totaling $286,005.80 and he is unable to sell his home and cannot borrow against it due to Jones’ judgment lien.

For good cause shown, Bohnert’s appeal is dismissed.

Yellowstone National Park to replace sewer line related to arsenic lawsuit

Source: Michael Wright, Bozeman Chronicle Staff Writer

Yellowstone National Park will replace a stretch of sewer line sometime over the next two years in an attempt to solve arsenic problems that led to a lawsuit against the park last year.

A U.S. Department of Interior attorney sent a letter to an attorney for the Gardiner-Park County Water and Sewer District that says Yellowstone plans to remove 2,700 feet of clay sewer line near Mammoth Hot Springs and replace it with PVC pipe.

The district sued the National Park Service in December 2016 because of heightened arsenic levels in its sludge ponds that it attributes to Yellowstone National Park.

The Interior attorney, Colleen Burnidge, wrote that the pipe project may take two years to complete, but they think it will help solve the problem.

“We believe that this project will address arsenic inflow and infiltration into the District’s sewage line,” she wrote.

Yellowstone National Park spokeswoman Morgan Warthin said in an email that the project has been funded and would begin either this year or next year. She couldn’t say how much the project would cost or whether it was a result of the lawsuit or a previously planned improvement.

She said they couldn’t give out further details because it’s part of a lawsuit.

Todd Shea, an attorney for the Gardiner-Park County Water and Sewer District, declined to comment.

The Gardiner-Park County Water and Sewer District sued Yellowstone in December 2016 over high levels of arsenic found in the district’s sewage treatment facilities. The district asked the court to force Yellowstone to give the district money, fix the leak and monitor its sewer lines in the future.

Sewage from Mammoth Hot Springs has gone to the district’s treatment facilities north of Gardiner for years. The district uses sludge ponds to treat wastewater, and the ponds need to be emptied periodically. Sludge removal is expensive, and high arsenic levels make it even more expensive.

According to the complaint, an engineer told the district in February 2015 that high levels of the odorless chemical were entering the treatment facility. The engineer also said that 95 percent of the arsenic was coming from Yellowstone, and testing showed the park’s sewage had arsenic levels nearly 40 times that of the Gardiner sewage.

The Montana Department of Environmental Quality had directed the district to empty the ponds, but the engineer recommended they wait to do so until the park fixed its arsenic problems, according to the complaint.

The district told the park in a 2015 letter that it couldn’t drain its sludge ponds until the arsenic problem from the park was solved. In 2016, the park finally responded, saying there likely wouldn’t be funding to fix the problem until 2020.

The district sued in December 2016, asking both for the park to fix the arsenic leak and to help pay for sludge removal — the cost of which was estimated at $2 million.

Funding has apparently come through for the project, according to the Interior Department letter, which was attached to a court filing that essentially puts the lawsuit on hold. The letter says the project will replace “deteriorated sewer lines” between the youth camp and Mammoth. The youth camp is south of the park headquarters and the Mammoth Terraces.

There is no mention of what the Park Service might contribute to the sludge removal — the other claim in the lawsuit — but Burnidge did write that they hope “the parties can work together to resolve any issues.”

Park County developers appealing water dispute to Montana Supreme Court

Written by: Michael Wright,  Bozeman Daily Chronicle Staff Writer 

A pair of Park County developers are taking their spat with the local water district to the Montana Supreme Court after a district judge ruled against them.

Max and Sue Berg, represented by attorney Karl Kneuchel, have filed a notice of appeal with the state’s high court in their case against the Gardiner-Park County Water District over the abandonment of a water pipe that served their subdivision near Gardiner.
A Park County district judge earlier this year ruled against them and ordered them to pay the district more than $666,000 in damages.

Kneuchel, the Bergs’ attorney, did not return a call seeking comment before deadline. Todd Shea, the attorney representing the water district, declined to comment because of the appeal.

The Bergs are the developers of the Fort Yellowstone subdivision north of Gardiner along Highway 89. Court documents say they got designs for the subdivision and water and sewer lines approved by the Montana Department of Environmental Quality in 1993.

An existing sewer line that served Mammoth and Gardiner was going to serve the subdivision, but the water line needed to be extended. According to court documents, the Bergs built the extension on the slope between the highway and the Yellowstone River but never built a retaining wall, which was required by the DEQ to stabilize the hillside.
In 2007, an engineering firm warned the water district that the water line might rupture because of erosion caused by the lack of a retaining wall. Court documents say that the engineering firm warned the district that the pipe’s failure could bust the sewer line as well, and potentially result in “millions of gallons of raw sewage” being washed into the Yellowstone River.

Court documents say the water district decided to disconnect the Bergs’ water line and install a new one above the subdivision. Around the same time, DEQ asked the Bergs to confirm whether the water line was built according to the plans, which included a retaining wall. That led to DEQ revoking their permit for the subdivision in 2009.

The Bergs later sued the water district in Park County District Court, arguing that the district’s decision to abandon their water line was detrimental to their subdivision. They asked for upward of $2 million in damages.

The water district denied their claims and in turn countersued the Bergs. Park County District Judge David Cybulski ruled in their favor in late August.

The Bergs’ notice of appeal to the Supreme Court was filed in early October. Formal briefs that lay out their argument will follow.

$666,534.11 Judgment in Favor of Water District against Subdivision Developers

Source: Montana Law Week

WATER EASEMENT TRESPASS/NUISANCE: $622,196.56 damages, $29,991 attorney fees, $14,346.55 costs to Water District against subdivision developers for failure to build retaining wall to prevent erosion of earth protecting water & sewer lines consequently requiring new water line to town… $278,521.81 damages to homeowners… Cybulski.
Max & Sue Berg own Fort Yellowstone subdivision in Gardiner. Max Berg owned Berg Excavation for 25 years and has experience building subdivisions, water lines, sewer lines, roads, and retaining walls. Bergs applied in 1992 for the subdivision with water & sewer to be supplied by what is now known as Gardiner-Park Co. Water & Sewer Dist. The sewer line was an existing line serving Gardiner and Mammoth, but a water line extension needed to be constructed by Bergs to serve the subdivision. The DEQ-approved plans provided that a water line would be on a steep slope between Hwy 89 and the Yellowstone River. A road would be built between the water line and river to provide access to condos along the river. A retaining wall was to be built between the road cut and water line to stabilize the slope. Max Berg installed the water line and road in 1995, but did not install a retaining wall. A year after activating the water line, the Water Dist. noticed that he had punched in a road under the line. The Manager explained that the road “destabilized the slope. The main was essentially along a cliff face.” Despite this, Bergs did not install a retaining wall. Bergs sued Gaston Engineering in 1999 alleging negligence in locating the water line and road below it which resulted in Bergs being “forced to import and place fill as well as build a retaining wall.” Bergs and Gaston settled in 11/00. Great West Engineering warned in 5/07 that the water line was in jeopardy of rupturing because of erosion due to lack of a retaining wall. The District advised Bergs that it planned to disconnect the line and install a new one in the highway right of way. DEQ issued Bergs a violation letter in 3/08 for failure to construct the retaining wall, followed by multiple communications. In 4/08 Bergs advised that they had retained an engineer to design & install gabion basket walls instead of a retaining wall. DEQ approved the substitution. As of 7/09, the gabion baskets had not been installed. DEQ issued a notice of revocation to Bergs pertaining to the subdivision in 10/09 for failure to install the retaining wall. Bergs appealed. Board of Environmental Review affirmed the revocation. Bergs sued the Water Dist. in 12/08 for inverse condemnation, trespass, and quiet title. The District counterclaimed alleging trespass and nuisance and requesting injunctive and declarative relief. The District requests summary judgment.
Bergs trespassed on the District’s easements by causing erosion of the earth cover below the water & sewer lines resulting in no longer having the cover required by its easements. The trespasses also include Berg performing excavation work within the easement areas without permission and leaving boulders on the sewer line easement. The trespass is continuing by virtue of the continued erosion.

Bergs’ conduct that caused erosion of the earth supporting the lines amounts to a public nuisance. The eroding condition of the slope continues to be “injurious to health” “so as to interfere with the comfortable enjoyment of life.” §27-30-101(1). The Gardiner community was “affected” by the eroding condition and installation of a new water line at a cost of $100,000. At the very least, a “neighborhood” of Gardiner was “affected” in that the line installed by Bergs had to be abandoned and a new line installed in the highway right of way. The ongoing threat to the existing sewer line and abandoned water line continues to “affect” at the very least a “neighborhood” of Gardiner. Subdivision lot owners McInerney and Hoffers previously sued Bergs for failing to install a retaining wall resulting in inability to build on any properties. The Court granted summary judgment for them. Bergs created a private nuisance to the Water District by diminishing and damaging its rights to the water and sewer lines. Judgment for the Water Dist. is granted on its public and private nuisance claims.

Bergs are enjoined from causing further erosion below the water and sewer lines. The District is granted access to the Ft. Yellowstone property to inspect and maintain its lines and remediate the erosion.

Following a damages hearing, the Court awarded the Water Dist. $622,196.56 against Bergs, $29,991 attorney fees, and $14,346.55 costs, with interest at 10%.
McInerney and Hoffers were awarded $278,521.81 damages against Bergs, and the District recovered $912.50 costs against McInerney and Hoffers.