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.”

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.

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.

Source: Montana Law Week

INTERPLEADER: Investment entity granted interpleader in Tribal Court dispute over funds in account, awarded fees & costs… Best.

Edward D. Jones seeks an interpleader to join Lisa Copiskey and Dennis Bohnert because they have claims against each other which may expose Jones to double or multiple liability based on their competing claims for funds in a Jones account. Jones asserts the following, which neither Defendant disputes: Blackfeet Tribal Court issued an order prohibiting Jones from using, reducing, diminishing, transferring, disposing of, and/or in any respect dissipating any funds in Bohnert’s Jones account. Bohnert and Copiskey have appealed several Tribal Court orders relating to distribution of the funds and have disputed its jurisdiction at various times. In light of her appeals, Copiskey has asked Jones not to distribute funds to Bohnert until the appeals are resolved and all underlying claims are heard by Tribal Court. Bohnert has disputed Tribal Court jurisdiction, alleged procedural errors, and disputed Copiskey’s right to execute against the funds.

In Bohnert’s argument to this Court, most of which is inconsistent and difficult to follow logically, he seems to want to have his cake and eat it too: to require Jones to follow Tribal Court orders which favor him, but not follow Tribal Court orders which favor Copiskey. This is patently absurd and points up the problem Jones seeks to solve with this interpleader. None of Bohnert’s arguments, even were they logical, go to the questions this Court must answer. His counterclaim flies in the face of the policy reasons for Rule 22 and is unsupported by the law. There are no legal claims — nor do there appear to be any specific allegations — in support of his counterclaim. Bringing a valid interpleader shields a plaintiff from liability for counterclaims where they are based on a plaintiff bringing an interpleader rather than having to choose between competing claimants. Comyne (ED Wis. 2002).

The Court may in its discretion award attorney fees & costs in bringing the interpleader against the stake. Soha (Mont. 1981). Jones appears to be a disinterested stakeholder, which the parties concede. It is entitled to an award of fees & costs from the stake.
Jones and the parties agree that it has in its possession or control money which is the subject of litigation, held in trust for Bohnert. §25-8-101. The funds in the Bohnert account are ordered to be deposited with the Court. Jones is dismissed with prejudice following payment of the funds into the Court’s registry and determination of fees & costs following a hearing.

Bohnert and Copiskey are ordered to interplead and litigate among themselves their claims to the funds. Jones is discharged from any liability on account of Defendants’ claims in interpleader.

Source: Liz Kearney, Enterprise Staff Writer

The Gardiner Water and Sewer District has filed a lawsuit against the National Park Service over the amount of arsenic flowing into the District’s sewage treatment plant.
In the lawsuit, filed Dec. 21 in U.S. District Court in Billings, the Water and Sewer District alleges that wastewater coming from Mammoth Hot Springs is carrying such a large amount of naturally occurring arsenic that it will cost the district more than $2 million to remove arsenic-laden sludge from its sewage treatment ponds, per a requirement from the Montana Department of Environmental Quality.

The Gardiner Water and Sewer District has treated the sewage from Mammoth for many years, according to the complaint filed by the district’s attorney, Todd Shea, of Bozeman.
The district’s engineer believes the arsenic gets into the system through leaking pipes or manholes from within the park, “and that such conditions are likely prevalent along the route” from the park to the district’s sewage treatment plant, according to the complaint.

The complaint states that arsenic levels in drinking water in both Mammoth and Gardiner, as reported to the district by its engineer, test below the allowable limits.
The NPS needs to address the excess arsenic, the complaint states, because there’s no point in removing the sludge and replacing sewage ponds liners only to have more arsenic accumulate.

The complaint further states that the district wrote several letters to the NPS beginning in February of 2015 that went unanswered before the park agreed to contribute toward the sludge removal and lining replacement. But the park indicated it may not have any funds available until sometime in the year 2020, according to the complaint.

“Given that the District has been directed by the DEQ to dispose of the sludge and replace the liners in its treatment ponds and cannot wait for the Park Service’s responses any longer, it has been compelled to file suit,” the complaint states.

The complaint brings five charges against Yellowstone National Park:

• Breach of contract, for failing to follow through on addressing the high levels of arsenic and failing to contribute funds toward the repair process.
• Trespass. The complaint alleges the park is committing a “continuing trespass,” as the arsenic damage is ongoing and will continue until the park locates the areas of infiltration and repairs them.
• Public nuisance. The park “created a danger to public safety by permitting high levels of arsenic to flow into the District’s sewer treatment plant,” the complaint states.
• Private nuisance. The arsenic from the park forces the district to be responsible for removing and disposing of sludge with a high arsenic level.
• Negligence. The complaint alleges the park failed to monitor the condition of the pipes emptying sewage into the district’s plant, causing the district to suffer damages.

The Gardiner Water and Sewer District is asking the court to issue a mandatory injunction requiring the park to address and correct the high levels of arsenic; that the park contribute funds to the district’s sludge removal project “commensurate with their responsibility for the high levels of arsenic;” that the park pay financial damages and any other relief the court “deems to be just and proper;” and to pay attorneys’ fees and costs.

Representatives from the Water and Sewer District, Yellowstone National Park and the DEQ did not immediately return calls Monday seeking comment.

Source: Montana Law Week

Morgan Stanley recovered a $258,983.72 judgment against Paul Stafford in 8/15 in Billings Federal Court for a loan he had not repaid. Stafford requested a Hearing on Claimed Exemptions — $6,200.31 in an HSA at First Interstate Bank. The issue is whether an HSA is exempt from execution under §25-13-608(1)(f):
A judgment debtor is entitled to exemption from execution of the following:
(f) Benefits payable for medical, surgical, or hospital care to the extent they are                      used or will be used to pay for the care;

It is clear that this section does not specifically exempt HSAs. If the Legislature intended them to be exempt, it could have put them in the law. Further, while HSAs may be used for medical, surgical, or hospital care, they are not required to be used for those purposes; they may be used to pay for long-term care insurance or for health insurance if the person is receiving unemployment comp. 26 USC §223(d)(2)(C)(ii). Most importantly, they may be used for non-medical purposes, although subject to a 20% tax. 223(f)(4)(A). Primarily due to this last exemption, the Court does not find that 25-13-608(1)(f) exempts HSAs from execution. Although a penalty may be imposed, they may be used for non-medical purposes. This fact, coupled with the fact that the Legislature has not specifically exempted HSAs, leads to the conclusion that they are subject to execution. Morgan Stanley’s writ of execution on the $6,200.31 in Stafford’s HSA is allowed.