Brian K. Gallik Oallik Law Fmn, P.e. P.O. Box 70 Bozeman, MT 59771 (406) 404-1728 [email protected]John M. Kauffman Kasting, Kauffman and Mersen, P.C. 716 South 20th Avenue, Suite 101 Bozeman, MT 59718 (406) 586-4383 [email protected]Kellie G. Sironi Attorney at Law P.O. Box 81646 Billings, MT 59108 (406) 860-9476 [email protected]Anorneys for the Plaintiffs GAllATltI Cl)UNTY CLERK OF DISTRICT COURT JENNIFER !015 JAN 13 Prl 2 19 FILED til BY .vI!f[.JL_ DEPUTY MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY "'MIKEL & CHARLES DAENEN, individually & ) on behalf of their minor children J.D., S.D., & L.D.;) Cause No. DV -, S- d=:LB ./OAYLE HOKANSEN, GARRY SPITZER; &) ...BRENDAN KELLEHER, individually &,."on behalf) of their minor children D.K. andK.K;'CATHY) COMPLAINT AND DEMAND MCNALLY,jndividually & on behalf 9fher minor) FOR JURy TRIAL child C.M.; 'SUE & CARL OLS]3N; YSSA & ) A'EROMEPATION;-LORI&DONNRYDBERG; ) AuLrn &{IM VERELLEN, individually & on ) behalf of their J11inor children D.V. & E.V.; & ) [?'\ ..1.ssue[) .,sLOANE & t{OSEPH KITOWSKI, individually & ) r,.;,..J on behalf of their minor children D.K. and S.K.. ) ) Plaintiffs, ) ) "CITY OF BOZEMAN, a municipality, '6O'LF COURSE PARTNERS, INC., and JOHN DOES 1 ) through 10, ) ) Defendants. )
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Brian K. GallikOallik Law Fmn, P.e.P.O. Box 70Bozeman, MT 59771(406) [email protected]
JohnM. KauffmanKasting, Kauffman and Mersen, P.C.716 South 20th Avenue, Suite 101Bozeman, MT 59718(406) [email protected]
Kellie G. SironiAttorney at LawP.O. Box 81646Billings,MT 59108(406) [email protected]
Anorneys for the Plaintiffs
GAllATltI Cl)UNTY CLERKOF DISTRICT COURTJENNIFER
!015 JAN 13 Prl 2 19FILED til
BY .vI!f[.JL_DEPUTY
MONTANA EIGHTEENTHJUDICIALDISTRICT COURT, GALLATIN COUNTY
"'MIKEL & CHARLES DAENEN, individually & )on behalf of their minor children J.D., S.D., & L.D.;) Cause No. DV - , S - d=:LB./OAYLEHOKANSEN, GARRY SPITZER; &)...BRENDAN KELLEHER, individually &,."on behalf)of their minor children D.K. andK.K;'CATHY) COMPLAINT AND DEMANDMCNALLY,jndividually & on behalf9fher minor) FOR JURy TRIALchild C.M.;'SUE & CARL OLS]3N; YSSA & )A'EROMEPATION;-LORI&DONNRYDBERG; )AuLrn &{IM VERELLEN, individually & on )behalfof theirJ11inor children D.V. & E.V.; & ) [?'\ ..1.ssue[).,sLOANE & t{OSEPH KITOWSKI, individually & ) r,.;,..Jon behalf of their minor children D.K. and S.K.. )
)Plaintiffs, )
)
"CITY OFBOZEMAN, a municipality, '6O'LFCOURSE PARTNERS, INC., and JOHN DOES 1 )through 10, )
)Defendants. )
Plaintiffs Mikel Daenen, Charles Daenan, individually and on behalf of their minor
children J.D., S.D. and L.D. (collectively "Daenens"), Gayle Hokensen ("Hokensen"), Garry
Spitzer ("Spitzer"), Abi Kelleher and Brendan Kelleher, individually and on behalf of their
minor children D.K. and K.K. (collectively "Kellehers"), Cathy McNally, individually and on
behalf of her minor child, C.M. ("McNallys"), Sue Olsen and Carl Olsen ("Olsens"), Alyssa
Patton and Jerome Patton ("Pattons"), Lori Rydberg and Donn Rydberg ("Rydbergs"), .
individually, Julie Verellen and Jim Verellen, individually and on behalf of their minor children
D.V. and B.V. ("Verellens"), and Sloan Kitowski and Joseph Kitowski individually and on
behalf of their minor children D.K and S.K ("Kitowskis )(a11, collectively, the "Plaintiffs") file
this Complaint against Defendants City ofBozeman. (the "City"), and Golf Course Partners, Inc.
(the "Developer"), and JOHN DOES 1 through 10 (all collectively, the Defendants") and allege
as follows:
NATURE OFTHEACTION.
The Plaintiffs are individuals (and their minor children) who bought property and/or live
in the Bridger Creek Subdivision (the "Subdivision''). Plaintiffs bought in the Subdivision
based on the understanding and expectation that they would live in a safe area ofBozeman,
Montana. They rightfully expected that the Developer, when planning, submitting, and
marketing the Subdivision for sale, and the City, when reviewing and conditionally approving
the Subdivision, would act consistent with their legal duties and/or police powers to protect and
promote the public health, safety, and the general welfare. SeeMCA § 76-3-102(1).
Their expectations stem, in part, from the inalienable rights afforded Montana citize.o;s in
our Constitution, including, "the right to a clean and healthful environment and the rights of
pursing basic necessities enjoying and defining their lives and liberties, acquiring, possessing
COMPLAINT Page 2
property, and seeking their safety. health, and happiness in all lawful ways." Mont. Canst. Art.
n, § 3. It also stems from the constitutional requirement that "the State and each person shall
maintain and improve aclean and healthful environment," a requirement which applies to state
and private action. Mont. Const. Art. IX, Sec. 1; Cape France Enterprises v. Estate ofReed.
action, closure and post-elosure care, and financial responsibility." [d. It concluded, among
other things, that health risk assessments were necessary.
29. In 1991. several years before the Developer applied for and the City approved the
Subdivision, the EPA published its Final Report in support of revisions to the Code ofFederal
Regulations ("CPR") governing solid waste disposal facilities. The Bozeman LandfIll is a solid
waste disposal facility, as that tenn is used in the EPA's Final Report. The Final Report made
clear the hazards associated with landfills, including hazards associated with themigration of
toxins under adjacent properties.
30. The EPA's 1991 Final Report also addressed landfills, like the Bozeman Landfill
that had been in operation prior to regulations adopted in 1980, which banned the acceptance of
.hazardous waste in sanitary landfIlls. In response to criticisms that the list ofmonitoring
requirements for hazardous substances were too extensive, EPA wrote:
For several reasons, EPA believes that it is appropriate for constituents on appendix IT togenerally be consistent with the constituents required for compliance monitoring undersubtitle C ofRCRA. First. hazardous wastes were routinely disposed olin municipalsolid waste landfills before the amendments to ReRA were promulgated in 1980 • ...Second, municipal solid waste landfills may receive hazardous waste from small quantitygenerators (SQG) and household hazardous waste (HHW). Multiple SQG's and multiplesources of HHWmay collectively result in substantial quantities of hazardous wastes atMSWLFs. Further,MSWL.Fs may not have adequate engineering controls (e.g., either anatural or synthetic liner and a leachate collections system) to prevent hazardous wastesfrom contaminating groundwater.
31. In 1995, and following discovery ofhazardous chemicals leaking from the
Bozeman Landfill. the DEQ gave the City two years to assess and correct groundwater
contamination migrating from its Landfill.
COMPLAINT Page 9
32. In 1995, the City expanded the Landfill by opening a new cell adjacent to and up-
gradient from the Subdivision.
33. The City, on its own behalf and on behalf of the County, failed to take appropriate
measures in response to the DEQ's 1995 directives and did not adequately remove the VOCs.
34. The City's attempt to respond to the problems created by the Landfill did not, for
example, adequately address leachate or stop the flow of a toxic plume coming from the Landfill
and flowing through the property that would become the Subdivision.
C. 1996 •• The City Considers and Approves the Bridger Creek Subdivision But DoesNot Mention or Condition Approval Upon Remediation. Mitigation orWarning ofthe Known Hazard.
35. On January II, 1996, the Developer submitted its application to the City for
preliminary plat approval of Phases IT and illof the Subdivision. The Subdivision, and in
particular Phase ill of the Subdivision, is located adjacent to and down gradient from the
Landfill.
36. In its application to the City, Developer stated that Phases IT and III in the
Subdivision would include 47 single family residential lots, 1 condominium residential lot in
Phase II, and 44 single family residential lots in Phasem The Developer and the City knew
that the Developer intended that families with school age children, and other individuals, would
purchase lots in Phase ill and occupy homes on those lots.
37. Montana law requires applications to subdivide property, like the one submitted
byDeveloper for the Subdivision, to address and satisfy the mandates of the Montana
Subdivision and Platting Act, MCA §§76-3-101, et. seq. (the "Act").
38. The purpose of the Act was, and is, to promote the public health, safety, and
general welfare by regulating the subdivision ofland. MCA § 76-3-102(1). In addition to the
COMPLAINT Page 10
Act, the City promulgated and adopted regulations to, in part, further the public health, safety,
and general welfare purposes of the Act.
39. At the time of its application, the Developer and City knew about VOCs leaking
from the Landfill into the groundwater that flowed through the propeny of the proposed
Subdivision. Defendants also knew that groundwater below the Subdivision was shallow and the
soils were loamy.
40. As part of the review process, the City required and the Developer commissioned,
various reports as pan of the required environmental assessment for subdivision review.
including aGeotechnical Investigation Report, certified by a registered engineer in the State of
Montana, for review and approval by the 9ty Engineer, which included, as required issues of
study, groundwater depth, on·site soils investigation. and existing groundwater monitoring
investigations. See, e.g., City ofBozeman, Project Engineer's Memo to Development Review
Committee, dated February 28.1996. '15. pp. 1-2.
41. City staffmembers also recommended a buffer zone between the Landfil I and the
Phase II and illdevelopment (only for purposes of blowing garbage and odor), but the Developer
objected to the buffer zone. stating that it "[b]elieves that the requirement to provide a ...
building setback adjacent to the landfill is a"taking" of property without just compensation."
The City declined to impose the 100-foot buffer zone as a condition to plat approval.
42. The application of the Developer contained groundwater and information
concerning the geology of the Subdivision. Although the Developer knew of the existence of the
contaminated groundwater flowing beneath the proposed subdivision. its application for
subdivision approval said nothing about the existing environmental contamination.
COMPLAINT Page 11
43. The City ofBozeman, through its planning and engineering departments,
reviewed the Application and, despite knowing of the existence of hazardous chemicals below
the proposed subdivision, the City's report on the subdivision said nothing about the existing
pollution and VOCs that were being transported from the LandfilHnto the groundwater, and then
flowing under the Subdivision and migrating upward through the soil at levels that exceeded
EPA standards. Thus, although the City required reports on geology, groundwater and
groundwater monitoring, which would lead a reasonable person to believe that the City was
properly discharging its duty to evaluate and impose conditions to mitigate public health and
safety issues associated with the proposed Development, tbe City imposed no conditions with
respect to eliminating, mitigating, or warning of the existing pollution, within the approved
development, that was known to be hazardous to human health and the Developer also failed to
undertake any such actions.
44. On September 3. 1996 and despite the dangers associated with the toxic plume
and the City's knowledge of the existence of that toxic plume under the proposed development,
the City gave the Developer conditional preliminary plat approval for Phases n and m. None ofthe conditions involved remediating ormitigating the VOCs leaking from the Landfill, nor did it
require the Developer to notify potential buyers of the land in the Subdivision about the VOCs.
45. The Developer knew about the leaking VOCs from the Landf1l1 and that those
VOCs were traveling in the groundwater through the property constituting Phase ill of the
Subdivision. Developer also knew, or should have known, that the Landfill would cause public
health and safety concerns to any person purchasing lots in Phase ffi. Cj..
COMPLAINT Page 12
46. Prior to and during the process in which the Developer sought approval of Phases
n and ill of the Subdivision, the City knew, or should have known, that hazardous wastes were
routinely dumped into the Landfill and that the wastes could and did migrate into the
groundwater creating a health hazard for those who lived on property down gradient from the
Landfill. It knew, or should have known, that the health hazards could create bodily injury and
property damage to those down gradient from the Landfill as well as be a public and private
nuisance.
47. The City should have denied the application for subdivision, or at a minimum,
imposed as a conditions of approval, before lots could be marketed and sold, that the Developer
remediate the environmental hazards andlor notify potential purchasers of lots in the Subdivision
that a toxic plume was traveling through the property thatwould becoIl1e part of the Subdivision
and would create health hazards to owners and occupiers of the property.
48. The Developer had a duty to warn ofhazardous conditions known by it and
existing on the subject property.
49. Despite the foregoing, none of the Defendants notified any of the Plaintiffs of the
dangers from the migrating toxic plume that travels through land Plaintiffs were purchasing in
the Subdivision and the subdivision review process and approval created a false sense of security
in that the City would not, pursuant to its police powers and duties owed to third parties, approve
a development that was hazardous to human health.
50. The City and the Developer ignored the known and foreseeable dangers to all
those who would purchase lots in Phase ill of the Subdivision and those who would live in
homes built in Phase mof the Subdivision.
COMPLAINT Page 13
51. The Defendants failed to properly consider the facts regarding the toxic plume
when reviewing and approving Phases II andm of the Subdivision or require proper remediation
or mitigation ofknown risks. Rather, they approved the Developer's request for final plat of
Phases n and ill of the Subdivision, allowing the Developer to sell lots to members of the public.despite the dangers hidden to the public. but well-known by the Defendants.
52. The City's review and approval of the Subdivision created a false sense of
security that the property was safe to purchase and live on.
53. The Developer marketed and sold lots in the Subdivision to the public without
disclosing the hidden dangers it knew about.
54. In approving the Subdivision, the City acted against its Sanitation Manager's
advice.
55. The City, on its own behalf and the County's behalf, petitionedMDEQ for
closure of amonitoring well within the Subdivision that showed unsafe and elevated VOC
levels.
56. TheMDEQ improperly approved the request to close the monitoring well.
57. By approving Phasemof the Subdivision for preliminary and ultimately finalplat, the City and the Developer allowed the public, including the Plaintiffs, to believe
purchasing land in Phase ill and living on the property was safe for human habitation.
58. The Developer and the City should have disclosed to potential buyers of lots
within the Subdivision the known groundwater contamination and VOC leaks from the Landfill.
The City should not have approved preliminary or final plat for Phase ill of the Subdivision
based upon what they knew, or should have conditioned approval of the subdivision upon proper
remediation of the property and warnings to the consuming public.
COMPLAINT Page 14
59. The City, ignoring the dangers (to both health and property value) to those
individuals and families who would reside in Phase ill of the Subdivision, approved building
permits and certificates of occupancy and failed to inform those individuals and families of the
known dangers of the toxic plume underneath the ground.
60. It was reasonable for the Plaintiffs to believe that the City would perform its
duties and prevent a subdivision from being approved that was not safe for human habitation, but
the City failed in exercising its duties.
61. Itwas reasonable for the Plaintiffs to believe that the City would properly perfonn
its duties and not allow a toxic plume to escape the Landfill and adversely affect their properties,
but the City failed in exercising its duties.
62. Itwas reasonable for the Plaintiffs to believe that the Developer would represent·
the correct and true state of the Property. within the Subdivision. when applying for Subdivision
approval. marketing property within the Subdivision. and selling property to the Plaintiffs within
the Subdivision.
63. VOC gasses within the contaminated groundwater under Phase illof the
Subdivision are a nuisance and trespassing on Plaintiffs' properties and, for those that have
homes. invading their homes. VOCs can persist for decades after a release as there is little
oxygen or bacteria in groundwater to break them down. Accordingly, this is a continuing
nuisance and continuing trespass.
64. The unlawful presence of VOC gasses in, on, and around the Plaintiffs' properties
are causing them damages in an amount to be determined at trial.
65. In 2007, the City. on its own behalf and the County's behalf, sent MDEQ a letter
requesting amodification ofPermit No. 2951-03.
COMPLAINT Page 15
66. In 2008. the City, on its own behalf and the County's behalf, closed the Landfill
under the review and approval of the MDEQ.
61. Despite the closure of the Landfill. the toxic plume, including the VOCs from the
toxic plume, continues to enter upon the Plaintiffs' properties.
68. Prior to purchasing their properties, the Plaintiffs had no knowledge of any toxic
plume migrating from the Landfill to the properties in the Subdivision they were going to
purchase. nor did they have knowledge of the VOCs, the poisoned groundwater, the leaking
Landfill, or the results from any monitoring test that the City and MDEQ and the Developer had
seen.
69. At the time the Plaintiffs purchased their properties or homes in the Subdivision,
it was not reasonable, nor was it the practice, for a party to test for VOCs before purchasing
property or a home in the Subdivision.
70. The City and the Developer had superior knowledge to the Plaintiffs and failed to
protect the Plaintiffs or disclose to the Plaintiffs the risks they knew about before Plaintiffs
purchased their properties or built homes in Phase illof the Subdivision.
71. In April 2013, the City released a 174-page December 2012 report of groundwater
monitoring activities completed by its contractor. Tetra Tech, Inc. (the "December 2012
Report").
12. TheDecember 2012 Report revealed historical data as far back as 1994 ofhigh
levels ofVOCs in the soils below the properties in Phase ill and other properties in the
Subdivision.
73. Following the December 2012 Report, and for the first time, the City notified
Plaintiffs, among others, of VOCS leaking from tbe Landfill into the Subdivision.
COMPLAINT Page 16
74. The City tested the Plaintiffs' homes and other locations, which tests conftrmed
VOCs in the groundwater mnning through the Plaintiffs' properties.
75. VOCs leaking from the Landflll are in the properties owned by the Plaintiffs and,
for those that have homes, in their homes.
76. Some voe levels were high enough to require the immediate design andinstallation ofmitigation systems.
77. The VOC's discovered under the Plaintiffs' properties resulted from voeescaping and migrating from the Landfill.
78. The VOC levels discovered under the Plaintiffs' properties are dangerous to the
Plaintiffs' health and safety and adversely impact the value of the Plaintiffs' property.
79. The VOCs discovered in the Plaintiffs' properties can accumulate and, for those
that have bought or built homes, they accumulate under their homes and migrate through floors
up into the homes.
80. The City-attempted mitigation efforts on the Plaintiffs' properties have not
removed VOC contamination.
81. The City has not contained VOC migration from the leaking Landftll.
82. The MDEQ bas not enforced its requirement that the City implement corrective
measures to protect the Plaintiffs from VOC contamination.
83. The VOCS adversely impact the Plaintiffs' property values and ability to ftnance
their properties. In addition, the VOCS increase the risks of illness, cancer, death, and genetic
damage from exposure.
COMPLAINT Page 17
84. The Plaintiffs have suffered and continue to suffer damage from the actions of the
Defendants, including suffering diminished property values, involuntary exposure to toxic
substances, health emotional distress, the need to restore their property, and other damages.
85. Each day the City, refuses to prevent VOCs from migrating ooto the Plaintiffs'
property, the'Plaintiffs suffer a new injury.
86. The Plaintiffs. and other landowners in the Subdivision, through their respective
counsel tendered claims against the City and State pursuant to MCA §2-9-301 and the substance
of those claims, including the claims of the other landowners, are incorporated by reference. The
City and State denied the claims ofall landowners. including the Plaintiffs.
COUNT ONE (NEGLIGENCE)
87. Plaintiffs incorporate the foregoing allegations herein, as if set forth in fulL
88. The City. on its own behalf and on behalf of the County, and the County itself
owed various duties that include but are not limited to the duty to operate the Landfill in a
manner that would prevent the build up, escape, andlor migration ofVOCs from the Landfill
onto the Plaintiffs' properties.
89. The City had various duties that include, but are not lirilited to, the duty to only
approve applications for subdividing property, like the Subdivision, if the subdivided property
being made available for sale is not contrary to the safety and health of those who may purchase
property in the subdivision and to deny subdivision applications, like the Subdivision, that pose
threats to the health and safety of the people who may buy the subject property. In the
alternative, it had a duty, consistent with its policy powers to protect human health, to condition
approval of the subdivision upon remediation of the known substances that were, and are,
hazardous to human health.
COMPLAINT Page 18
90. The Developer had various duties to submit a subdivision application for the
Subdivision that properly evaluated. protected and promoted the safety and health of those who
may purchase property in the subdivision, including remediation of known hazards andlor to
warn of the existence of the known hazards.
91. The City had various duties to notify Plaintiffs of the dangers posed by the
migrating toxic plume and to represent the sale of property in the Subdivision with full and
complete disclosure of the safety and health risks associated with the property.
92. The City had a duty to notify those individuals who sought building and
occupancy permits of the dangers posed by the migrating toxic plume from the Landfill before
issuing the permits.
93. The Developer had various duties to market the property for sale in the
Subdivision and to close any sale of property within the Subdivision with full and complete
disclosure of the dangers posed by the migrating toxic plume and intrusion ofVOCS into
and any and all safety and health risks associated with the property. including vapor intrusion.
94. The City had duties to ensure and enforce proper operation, testing, monitoring,
mitigation. remediation and closure of the Landfill and prevent any VOCmigration therefrom.
95. The Defendants each owed the foregoing duties to Plaintiffs.
96. The Defendants each breached their duties to the Plaintiffs.
97. The Defendants' breach of their duties have caused damages to the Plaintiffs,
including property devaluations and unreasonable risks to their health and safety.
98. The Defendants are liable to Plaintiffs for compensatory, restorative and punitive
damages where allowable; in amounts to be determined at trial.
COMPLAINT Page 19
COUNT TWO (NUISANCE).
99. Plaintiffs incorporate the allegations in paragraphs 1-98 as if set forth in full.
100. The VOCs leaking from the Landfill have contaminated and polluted and,continue to contaminate and pollute the groundwater in the Plaintiffs' properties and are a
nuisance that improperly invades Plaintiffs' right to use and enjoy their properties.
101. Such nuisance is a private nuisance. In the alternative, it is a public nuisance
especially injurious to Plaintiffs.
102. Said nuisance (private and/or public) is a continuing nuisance.
103. The Defendants are each strictly liable for the damages resulting from the
nuisance, without regard to their negligence. Alternatively, the Defendants were each negligent
as set forth above, and thus are liable for all damages caused by them.
104. Plaintiffs are entitled to an injunction, requiring Defendants to each abate the
nuisance thyy created by: (1) ceasing to allow VOCs from escaping the Landfill; and (2) cleaning
up the contamination which already exists under the Subdivision to restore it to its condition
without the invasion of the VOCS from the Landfill.
105. Plaintiffs are entitled to an award of damages, including: (1) compensatory
damages for harm suffered; (2) prospective compensatory damages for harm which will be
suffered in the future; (3) stigma damages; and (4) restoration/remediation damages; and (5)
where allowed, punitive damages.
COUNT THREE (STRICT LIABILITY)
106. Plaintiffs incorporate the allegations in paragraphs 1-105 as if set forth in full.
COMPLAINT Page 20
107. In their ownership, operation, monitoringand/or financial beneficialuseof the
Landfill, the City, hadunder its control hazardous substances,which were allowed to escape
from the Landfill into thegroundwater and travel to and through the Plaintiffs’ properties.
108. Defendantproximately caused injury anddamage to Plaintiffs asallegedabove.
109. Defendant is strictly liable toPlaintiffs in anamount tobedetermined at trial.
COUNTFOUR [TRESPASS).
110. Plaintiffs incorporateparagraphs 1-109asif set forth in full.
111. The escapingVOCs from the Landfill havebeen, andcontinue to be,unlawfully
trespassingon Plaintiffs’ properties.
112. TheescapingVOCs from the Landfill that are in and onPlaintiffs’ properties
constitute, andhaveconstituted, anintrusionupon their propertieswithout their consent,
resultingharmto the Plaintiffs
113. TheCity is responsible for the unlawful trespass of VOCs on to Plaintiffs’
properties.
114. The trespassing VOCs are interferingwith the useandenjoymentby the
Plaintiffs’ of their properties.
115. As aresult of theDefendant’s trespasses, the Plaintiffs are entitled to anawardof
compensatory, restorative,andpunitivedamages and an injunctionasmoreparticularly
described in precedingparagraphs.
W116. Plaintiffs incorporate the allegations in paragraphs 1-115asif set forth in full.
117. Article H, Section 3of the Constitution of the Stateof Montana recognizes that
certain inalienable rights of Montanacitizens, including “the right to aclean and healthful
COMPLAINT Page21
environment and the rights of pursingbasic necessities enjoyingand defining their lives and
liberties, acquiring, possessingproperty, and seeking their safety, healthandhappiness in all
lawfulways.”
118. Article IX,Section 1of theMontanaConstitutionprovides that the Stateandeach
person shall maintain and improve a clean andhealthful environment. Cape FranceEnterprises
v. Estate of Reed,2001MT 139,'1132, 305Mont. 513,29 P.3d 1011(2001).
119. Defendants’ actions, and inactions, asset forth above,violate the Plaintiffs’
constitutional right to aclean andhealthfulenvironment and improperly infringes upon the
ability to enjoy their property. It also constitutes aviolation of the Defendants’ duties to
maintain and improveaclean andhealthful environment.
120. Defendants havedegraded or improperly allowed the improperdegradation of the
environment to the Plaintiffs’ detriment, including the contaminationandpollutionof
groundwater and the Plaintiffs’ properties.
121. Plaintiffs are entitled to damages from the DefendantsandanOrder compelling
the Defendants to remedy the damages caused through the clean~up of the contaminated soils and
groundwater, or for damages in anamount sufficient to fully remediate the contamination.
122. Defendants, in pollutingandcontaminatingPlaintiffs’ lands,groundwater and
homes,have violated and continue to violate the Plaintiffs’ fundamental constitutional right to a
clean andhealthy environment.
123. As aresult of the Defendants’ constitutional violations, the Plaintiffs are entitled
to damages, restitution, restoration, and/or other compensatiou in amounts aswill bejust to fully
compensate the Plaintiffs and/or deter the Defendants from conducting themselves in the same or
COMPLAINT Page22
similar way the future, includinganawardof interest onall such sums to avoid injustice and
vindicate their constitutional right to aclean andhealthy environment.
COUNTSIX sPUmTIVEDAMAGES).
124. Plaintiffs incorporate the allegations in paragraphs 1-124asif set forth in full.
125. TheDeveloperacted with actual fraud or actual malice by misrepresenting the
condition of the property in the Subdivision that it marketedand sold to Plaintiffs.
126. TheDeveIOper actedwithmaliceby havingknowledgeof facts or intentionally
disregarding facts that created ahighprobability of injury to the Plaintiffs and the environment
andeither deliberately proceeded to act in conscious or intentionaldisregard of the high
probability of injury to thePlaintiffsand the environment, or deliberately proceeded to actwith
indifference to the highprobability of injury to the Plaintiffs, the environment, and the Plaintiffs’
fundamental right to aclean andhealthful environment.
127. Plaintiffs are entitled to anawardof punitive damages against theDeveloper, in
anamount to bedeterminedby thejury, sufficient to punishand deter the Developer fromsuch
future conduct.
COUNTSEVEN RSECONDEMNATIO .
128. Plaintiffs incorporate the allegations in paragraphs 1-127asif 'set forth in full.
129. ThePlaintiffs’ properties are privately owned.
130. By allOwing themigrationof leakingVOCs onto the Plaintiffs’ properties and in
their homes theCity has taken the Plaintiffs’ properties without just compensation.
131. The City has adversely affected the useandmarketability of the Plaintiffs’
properties.
COMPLAINT Page.23
132. The Plaintiffsare entitled to damages from the City equal to just compensation for
the improper taking.
COUNTEIGHTgMEDICALMONITORINGI.
133. Plaintiffs incorporate the allegations in paragraphs 1-132asif set forth in full.
134. ThePlaintiffs havebeenexposed tohazardous substances through the negligence
and/or recklessnessof the Defendants.
135. As afactual and legal result of this exposure, the Plaintiffs suffer anincreasedrisk
of contracting aserious latentdisease.
136. The increasedrisk of contracting adisease or illnessmakesperiodic diagnostic
medicalexaminations reasonably necessary andmonitoringand testingprocedures exist which
make the early detection and treatment of the diseasepossible andbeneficial.
137. Accordingly, Plaintiffsare entitled to recover from the Defendantsdamages for
the cost of present and future periodic diagnostic medicalexaminations asaresult of their
exposure to aknownhazardous substance(s) in order to provideearly detection of any illnesses
causedby exposures to the contaminants, includingVOCs, releasedby theDefendants.
‘ Plaintiffs also seek annoyance and discomfort damages andpunitivedamages in connectionwith
medicalmonitoring.
COUNTNINE CTIO .
I38. Plaintiffs incorporate the allegations in paragraphs 1‐138 asif set forth in full.
139. As aresult of the toxic contamination that continues to leak andmigrate from the
Landfill on adaily basis,Plaintiffs continue to beexposed to toxic materials and their property
continues to be invaded. ‑
COMPLAINT Page24
140. The continued exposure to toxic materials of Plaintiffsand their families is
causing long-termirreparabledamages that cannot becured by periodic damage awards or
periodic court orderedcleanup.
141. As such, there is noadequate remedy at law andonly aninjunctionpreventing the
releaseof anymoreVOCs from the Landfill into the groundwater will protect the Plaintiffs and
their families from future harm.
COUNT TEN {COESQMERPROTECTIQNA g fl .
142. Plaintiffs incorporate the allegations in paragraphs l - l 4 l asif set forth in full.