Burley v. Burlington Northern & Santa Fe Railway Co.

February 7 2012

OP 11-0021

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 28

DAVE BURLEY and JEANNIE BURLEY,

Plaintiffs and Petitioners,

v.

BURLINGTON NORTHERN & SANTA FE
RAILWAY COMPANY, a foreign corporation,
f/k/a BURLINGTON NORTHERN RAILROAD
COMPANY, a Delaware Corporation,

Defendants and Respondents.
_________________________________________

DIANA AND KENNETH MERIDETH,

Plaintiffs and Petitioners,

v.

BURLINGTON NORTHERN & SANTA FE RAILWAY
COMPANY, a foreign corporation, f/k/a BURLINGTON
NORTHERN RAILROAD COMPANY, a Delaware Corporation,

Defendants and Respondents.

_________________________________________

DANA NELSON,

Plaintiff and Petitioner,

v.

BURLINGTON NORTHERN & SANTA FE RAILWAY
COMPANY, a foreign corporation, f/k/a BURLINGTON
NORTHERN RAILROAD COMPANY, a Delaware Corporation,

Defendants and Respondents.

ORIGINAL PROCEEDING: Certified Question, United States District Court
District of Montana
 Hon. Richard F Cebull, Presiding Judge

COUNSEL OF RECORD:

For Petitioners:

A. Clifford Edwards (argued); A. Christopher Edwards; Triel D. Culver;
Edwards, Frickle & Culver, Billings, Montana

Michael D. Cok (argued), Julieann McGarry, Theodore R. Dunn, Cok
Kinzler, PLLP, Bozeman, Montana

For Respondent:

Brooke C. Kuhl (argued); J. Daniel Hoven; Carlo Canty; Browning,
Kaleczyc, Berry & Hoven, PC, Helena, Montana

Carl P. Gilmore, K&L Gates LLP, Seattle, Washington

Paul J. Lawrence, Pacifica Law Group LLP, Seattle, Washington

For Amici Curiae:

Hertha L. Lund, Lund Law, PLLC, Bozeman, Montana
(for Montana Farm Bureau Federation)

Patrick M. Sullivan; John P. Davis; T. Lee Bruner; Poore, Roth & Robinson,
P.C., Butte, Montana
Mark Staples, Staples Law Firm, P.C., Helena, Montana
(for Montana Mining Association, Montana Petroleum Marketers and
Convenience Store Association, Town Pump, Inc., Rocky Mountain Oil, Inc.,
and Atlantic Richfield Company)

Mark M. Kovacich; Tom L. Lewis; J. David Slovak; Lewis, Slovak,
Kovacich & Marr, PC, Great Falls, Montana
(for Livingston Property Owners)

Argued: September 14, 2011
Submitted: September 22, 2011
Decided: February 7, 2012

Filed:

__________________________________________
Clerk

2
Justice Brian Morris delivered the Opinion of the Court.

¶1 The United States District Court for the District of Montana certified the following

question to this Court:

¶2 With respect to the continuing tort doctrine, does Montana law, as applied to the facts

set forth in Magistrate Judge Ostby’s Findings and Recommendations, toll the statute of

limitations for property damage claims of nuisance and/or trespass resulting from

contamination which has stabilized, continues to migrate, and is not readily or easily

abatable?

¶3 Claims related to property contamination that involve issues of statutes of limitations,

continuing torts, and the nature of damages, routinely face resolution in state courts of

appeals. These cases often find their way to the state appellate courts through certified

questions from federal courts. See e.g. Hoery v. United States, 64 P.3d 214 (Colo. 2003);

Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782 (Wash. 1985). We address a similar

certified question in the instant case.

¶4 We accepted the certified question from the U.S. District Court and now answer the

certified question with a qualified yes. We reject the U.S. District Court’s formulation that

the contamination need be “readily or easily abatable” in order to constitute a continuing tort.

Contamination that has stabilized in terms of quantity or concentration, but continues to

migrate will toll the statute of limitations until the harm no longer reasonably can be abated.

The injury should be classified as permanent once a determination has been made that the

nuisance no longer reasonably can be abated. The limitations period begins to run when

3
abatement is not reasonable or complete abatement cannot be achieved, and a permanent

injury exists.

FACTUAL AND PROCEDURAL HISTORY

¶5 Burlington Northern & Santa Fe Railway Company (BNSF) and its predecessors

operated the Livingston Rail Yard (Yard) in Livingston, Montana, for nearly a century until

its closure in 1987. BNSF’s operations released hydrocarbons and toxic solvents into the

environment surrounding the Yard. These toxic pollutants migrated off the Yard into the

groundwater below, onto the soil, and into the air above the neighboring properties.

¶6 The Montana Department of Environmental Quality (DEQ) conducted an

investigation and remediation project in accordance with Montana’s Comprehensive

Environmental Cleanup Responsibility Act (“CECRA”), § 75-10-701 et seq., MCA. BNSF

has attempted to remediate some of the pollution through monitored natural attenuation.

Monitored natural attenuation involves monitoring the levels of contamination in the

groundwater. Sunburst Sch. Dist. No. 2 v. Texaco, Inc, 2007 MT 183, ¶ 16, 338 Mont. 259,

165 P.3d 1079. DEQ tested the soil of landowners around the Yard in 1992 and discussed

the results with them.

¶7 This present group of claims comprises one of several lawsuits over BNSF’s actions

in Livingston. The State of Montana, through DEQ, filed federal and state claims in federal

district court in 1988. This action included a claim under CECRA. BNSF and DEQ entered

into a partial consent decree in 1990. Mont. v. BNSF, U.S. District Court, CV 88-141-H-

CCL (April 27, 1990). The decree required BNSF to conduct a remedial investigation. The

decree did not apply to “ ‘a claim by a person other than the parties’ ” to the consent decree.
4
Mont. Dept. of Envtl. Quality v. BNSF, 623 F.3d 1312, 1315 (9th Cir. 2010) (quoting

Modified Partial Consent Decree).

¶8 A group of landowners and the City of Livingston filed a separate suit in a Montana

district court in 2007. The City of Livingston and the landowners sought to recover the costs

of restoring the property to its pre-contaminated condition. The U.S. Court of Appeals for

the Ninth Circuit recently denied BNSF’s attempt to enjoin the suit in federal district court to

protect the consent decree. DEQ, 623 F.3d at 1316-17.

¶9 Plaintiffs Dave and Jeannie Burley, Dana Nelson, and Diana and Kenneth Merideth

(collectively Property Owners) own property adjacent to the Yard. The Property Owners

separately sued BNSF in 2007 and 2008 in federal court for damages to their property based

on claims of nuisance, negligence, strict liability, trespass, wrongful occupation, unjust

enrichment, restoration damages, constructive fraud/misrepresentation, and misconduct in

federal court. All of these claims seek damages for contamination that has migrated from the

Yard to parcels owned by the Property Owners.

¶10 BNSF filed a motion for summary judgment on the basis that the applicable statute of

limitations barred the separate claims filed by Property Owners. U.S. Magistrate Judge

Carolyn S. Ostby recommended that the U.S. District Court grant BNSF’s motion in an order

dated March 2, 2010. The Magistrate Judge found that BNSF’s contamination from the Yard

had reached the properties at issue decades ago and determined that the claims had accrued

by the 1990s. The Magistrate Judge further determined that Property Owners had actual

knowledge of the contamination. The Magistrate Judge refused to apply the continuing tort

exception. The Property Owners filed objections with the U.S. District Court.
5
¶11 The U.S. District Court declined to adopt the Magistrate Judge’s recommendation of

summary judgment. This Court earlier had granted a petition for writ of supervisory control

in Anderson v. BNSF, No. OP 10-0195. The District Court for the First Judicial District,

Lewis and Clark County, had dismissed on statute of limitations grounds a nearly identical

claim in Anderson as that presented here. The Magistrate Judge found persuasive the

reasoning of the state district court in Anderson in light of the “strikingly similar” facts and

claims as those presented by Property Owners. As a result, the U.S. District Court certified

to this Court the question of whether the continuing tort doctrine should apply to the claims

presented by Property Owners.

DISCUSSION

¶12 The U.S. District Court asks how the continuing tort doctrine would apply to a

particular scenario with three elements. These three elements include the fact that the

pollution has stabilized in terms of concentration levels, that the contamination continues to

migrate, and that the parties dispute the ease of abatability of the contamination. We pause

briefly to review basic principles of Montana law implicated by the certified question. We

first address the contours of nuisance and trespass actions under Montana law. These

principles, in turn, guide our application of the statute of limitations analysis.

Limitations on Actions for Nuisance and Trespass

¶13 A nuisance action includes “all wrongs which have interfered with the rights of a

citizen in the enjoyment of property.” Haugen v. Kottas, 2001 MT 274, ¶ 15, 307 Mont. 301,

37 P.3d 672; § 27-30-101, MCA. The Court defines a trespass as an intrusion on a party’s

right to exclusive possession of his property. Tally Bissell Neighbors, Inc. v. Eyrie Shotgun
6
Ranch, LLC, 2010 MT 63, ¶ 38, 355 Mont. 387, 228 P.3d 1134; Restatement (Second) of

Torts § 163 cmt. d (1965). A typical trespass or nuisance is complete when committed. The

statute of limitations begins to run at that time. 58 Am. Jur. 2d Nuisances § 296.

¶14 Montana law recognizes an exception to this general rule. This exception,

denominated as the continuing tort doctrine, applies to a temporary injury that gives rise to a

new cause of action each time that it repeats. See Knight v. Missoula, 252 Mont. 232, 244,

827 P.2d 1270, 1277 (1992). Both nuisance and trespass can constitute a continuing or

ongoing tort. See e.g. Ducham v. Tuma, 265 Mont. 436, 443, 877 P.2d 1002, 1007 (1994)

(discharge of water onto plaintiff’s property constituted a continuing trespass); Nelson v.

C&C Plywood Corp., 154 Mont. 414, 434, 465 P.2d 314, 325 (1970) (dumping of glue waste

constitutes a continuing temporary nuisance). Our references to nuisances in this opinion

apply with equal force to trespass claims as well.

¶15 The Court in Graveley v. Scherping, 240 Mont. 20, 23, 782 P.2d 371, 373 (1989)

(Graveley I), applied a general definition of nuisance from American Jurisprudence that

seeks to differentiate between a permanent nuisance and a temporary nuisance. The Court

quoted extensively from the commentary that describes a nuisance as permanent where “its

construction and continuance necessarily result in an injury.” 58 Am. Jur. 2d Nuisances

§ 296. The commentary describes a nuisance as temporary when the “injury is not

complete” and the injury “depends upon its continuance and uncertain operation of the

seasons or of the forces set in motion by it.” 58 Am. Jur. 2d Nuisances § 296.

¶16 Application of the statute of limitations under Montana law depends, of course, on

whether the injury should be classified as temporary or permanent. The Court has observed
7
that statutes of limitation serve the purpose of ensuring “basic fairness” to parties. E.W. v.

D.C.H., 231 Mont. 481, 484, 754 P.2d 817, 819 (1988). Statutes of limitations achieve the

goal of suppressing stale claims. Injuries to property have a limitations period of two years.

Section 27-2-207, MCA.

¶17 A claim does not accrue under Montana law, however, until “the facts constituting the

claim have been discovered or, in the exercise of due diligence, should have been discovered

by the injured party.” Section 27-2-102(3), MCA. This provision codifies the “discovery

rule.” The discovery rule applies where the facts constituting the injury by their nature are

concealing, or the defendant has taken some action that prevents the injured party from

discovering the injury or its causes. Section 27-2-102(3), MCA.

¶18 Precisely when and how to apply the continuing tort doctrine and the discovery rule to

cases of property contamination under Montana law gives rise to the certified question. We

recognize that this distinction proves difficult to apply. We do not stand alone. One

commentator has noted that “[t]here is perhaps no more impenetrable jungle in the entire law

than that which surrounds the word ‘nuisance.’” Prosser and Keeton on Torts 616 (W. Page

Keeton, et al. eds., 5th ed., West 1984). This “jungle” proves particularly impenetrable when

it comes to the distinction between a permanent nuisance and a temporary nuisance. F.

Harper, F. James & O. Gray, The Law of Torts § 1.30 (2d ed., Aspen Publishers 1986). We

venture intrepidly into the jungle in an effort to provide guidance to the U.S. District Court

as we answer the certified question.

Analysis

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¶19 Two divergent theories have evolved with respect to the effect of stabilization,

migration, and abatability on the question of whether to toll the statute of limitations. The

first theory, supported by BNSF, regards the polluter’s cessation of dumping as the

triggering event for the running of the limitations period. See e.g. Village of Milford v. K-H

Holding, Corp., 390 F.3d 926 (6th Cir. 2004); LaBauve v. Olin Corp., 231 F.R.D. 632 (S.D.

Ala. 2005); Achee v. Port Drum Co., 197 F.Supp.2d 723 (E.D. Tex. 2002); McAlister v.

Atlantic Richfield Co., 662 P.2d 1203 (Kan. 1983). The second theory, urged by Property

Owners, looks not to the time of the polluter’s cessation of dumping, but to the continued

migration of the contamination from a polluter’s property. See e.g. Hoery v. United States,

64 P.3d 214 (Colo. 2003); Bradley, 709 P.2d 782; Arcade Water Dist. v. United States, 940

F.2d 1265 (9th Cir. 1991). The Colorado Supreme Court has taken this second approach to

an extreme by tolling the statute of limitations until every drop of pollution has been

removed from a party’s property. Hoery, 64 P.3d at 223. We analyze the two theories, and

the cases that have developed them, to discern the appropriate approach under Montana law.

Stabilization

¶20 The U.S. District Court’s certified question asks whether a contamination that has

stabilized, but continues to migrate, qualifies as a continuing tort. The Magistrate Judge

concluded that the pollution from the Yard had stabilized based on her determination that the

overall concentration of pollutants in the underground plume no longer are increasing. This

Court has grappled with the distinction between a temporary nuisance and a permanent

nuisance in Nelson, Walton v. The City of Bozeman, 179 Mont. 351, 588 P.2d 518 (1978),

Blasdel v. The Montana Power Company, 196 Mont. 417, 640 P.2d 889 (1982), Haugen
9
Trust v. Walker, 204 Mont. 508, 665 P.2d 1132 (1983), Shors v. Branch, 221 Mont. 390, 720

P.2d 329 (1986), Graveley I, and Knight. BNSF suggests that these decisions provide clear

support for its position that the stabilization of the contamination from the Yard bars the

application of the continuing tort doctrine. We address each of these cases in an effort to

chart the development of Montana law on the effect of stabilization on the question of how to

classify a nuisance.

¶21 The concept of an injury having “stabilized” first appears in Blasdel. The Court faced

the issue of when the limitations period should start to run “in an inverse condemnation case

of invasion by underground seep.” Blasdel, 196 Mont. at 425, 650 P.2d at 894. Water tables

in the vicinity of Flathead Lake rose several feet after the Montana Power Company (MPC)

constructed Kerr Dam in 1939. Blasdels first complained about damage from the rising

water tables in 1941. MPC denied any liability. These problems increased in 1948 and 1957

to the point that Blasdels again raised the issue with MPC. MPC still denied any liability.

MPC attributed the rising water tables to increased levels of precipitation in the area.

Blasdel, 196 Mont. at 420-21, 650 P.2d at 891-92.

¶22 Blasdels finally filed their action for a permanent taking against MPC in 1960.

Blasdel, 196 Mont. at 421, 650 P.2d at 892. The trial court found MPC liable for the

damages caused by the higher water table. The trial court rejected MPC’s claim that the

statute of limitations barred Blasdels’ 1960 complaint. The trial court determined that

Blasdels “could not with reasonable certainty ascertain permanent damage” until the growing

season of 1959-1960. Blasdel, 196 Mont. at 424-25, 650 P.2d at 893-94.

10
¶23 MPC argued on appeal that Blasdels’ cause of action for a permanent taking arose in

1941 when they first complained of rising water tables. MPC made no effort in the trial

court to prove a date of permanent injury due to its strategy of denying any damage. MPC

contended that the Blasdels’ cause of action ripened, if it ever did, at the time of their first

complaints in 1941. The Court refused to penalize Blasdels for waiting to file its action for a

permanent taking until the water table had “stabilized” in 1960, thus making the damage

“permanent.” Blasdel, 196 Mont. at 426, 650 P.2d at 894. The Court instead held that

Blasdels’ cause of action for a permanent taking did not accrue until the water table had

“stabilized” in 1960. Blasdel, 196 Mont. at 426, 650 P.2d at 894.

¶24 Blasdel’s discussion of stabilization comports with the facts of the case: the water

table fluctuated in the years following construction of Kerr Dam. It made little sense to

require Blasdels to file an inverse condemnation action until they could determine the extent

of the taking of their property worked by the rising groundwater tables caused by Kerr Dam.

The Court makes no mention of whether the injury in Blasdel could be abated in light of the

unique factual and legal posture. The rising water table and accompanying harm to Blasdels

likely would not recede absent a decision by MPC to remove Kerr Dam. Similarly, Blasdels

filed a claim for inverse condemnation. Inverse condemnation by its very nature

contemplates a permanent taking of property. United States v. Clarke, 445 U.S. 253, 257,

100 S. Ct. 1127, 1130 (1980). Financial compensation provides the sole remedy for a

permanent taking of property. Clarke, 445 U.S. at 257, 100 S. Ct. at 1130.

¶25 The question of whether a nuisance had “stabilized” likewise emerges in Haugen

Trust. Warners owned a house in a new subdivision. Warners suffered flooding in their
11
basement in 1978 and 1979. They traced flooding to the water levels in ponds constructed

by the developer. Warners partially blocked the flow of water from the ponds during the

summers of 1979, 1980, and 1981 by placing a cap across a culvert at the outlet. The

obstruction caused the pond water to stagnate and attract mosquitoes. A neighbor removed

the culvert cap in response. Haugen Trust, 204 Mont. at 510, 665 P.2d at 1134.

¶26 Warners filed a complaint in 1982 against the developer. The developer moved to

dismiss Warners’ complaint as barred by the two-year statute of limitations. The developer

pointed to the fact that Warners had filed the complaint in 1982, but alleged damages only

for the years 1978 and 1979. The trial court granted the motion. Haugen Trust, 204 Mont. at

511, 665 P.2d at 1134. This Court reversed on the grounds that the damage caused by the

flooding had not “stabilized.” Haugen Trust, 204 Mont. at 513, 665 P.2d at 1135.

¶27 The Court reasoned that Warners’ basement continues to flood “periodically” and that

the extent of the damage to Warners’ basement “varies from occurrence to occurrence.”

Haugen Trust, 204 Mont. at 513, 665 P.2d at 1135. This variance depends on the precise

level of the water in the basement and the condition of the basement at the time of each

flood. The Court failed to explain the “condition” of the basement, but presumably it refers

to the extent to which Warners have finished the basement, what personal items the Warners

might have stored in the basement at the time of the next flood, and whether the basement

had dried completely since the previous flooding.

¶28 The Court concluded its analysis with discussion of the fact that the nuisance “is

apparently abatable” as demonstrated by the effect of the corrective actions taken by

Warners to block the water flow into the ponds in 1980 and 1981. Haugen Trust, 204 Mont.
12
at 513, 665 P.2d at 1135. The Court once again posed the question of whether a nuisance

had “stabilized” in the context of fluctuating groundwater levels. The Court refused to

classify the nuisance as permanent when the nuisance had not yet “stabilized.” Haugen

Trust, 204 Mont. at 513, 665 P.2d at 1135. More importantly, the Court relied upon the

“apparently abatable” nature of the nuisance to classify it as having a continuing and

temporary character. Haugen Trust, 204 Mont. at 513, 665 P.2d at 1135.

¶29 Other Montana cases also have seized upon the abatable nature of the nuisance in

choosing to classify it as having a continuing and temporary character. For example, a

plywood company in Nelson converted a saw mill adjacent to Nelsons’ property into a

plywood manufacturing plant in 1960. The plywood company proceeded to dispose of glue

waste through a drainage ditch on its property that eventually emptied into a slough on

plaintiffs’ property. Nelson, 154 Mont. at 416-17, 465 P.3d at 315. Nelsons noticed

discoloration and an offensive odor in their well water later that year. Nelson, 154 Mont. at

417, 465 P.3d at 315. Tests revealed that Nelsons’ water well contained an extremely high

level of phenols. Nelson, 154 Mont. at 417-18, 465 P.3d at 316. The plywood company

denied any responsibility, but dammed the drainage ditch and built a concrete tank to trap the

glue waste in 1965. Phenol levels in Nelsons’ well water dropped to zero after the plywood

company built the tank. Nelsons sued in 1965. Nelson, 154 Mont. at 416-17, 465 P.3d at

315-16.

¶30 The jury returned a verdict in plaintiffs’ favor. The plywood company argued on

appeal that the two-year statute of limitations should have barred plaintiffs’ claim. The

Court rejected it. The glue waste constituted a continuing temporary nuisance based on the
13
fact that the nuisance caused by the glue waste at all times had been “removable.” Nelson,

154 Mont. at 434-35, 465 P.3d at 325. In other words, the Court relied on the fact that the

plywood company could have abated the nuisance at all times, and, thus, the nuisance

created by the glue waste could not be deemed permanent.

¶31 Walton determined a nuisance to be of a continuing nature when the City of Bozeman

relocated an irrigation ditch and constructed a storm sewer as part of a public works project.

The project caused annual flooding of Walton’s crops. Walton first complained of the

problem in 1967. Severe flooding in 1976 finally prompted Walton to file an action against

the City of Bozeman. Walton, 179 Mont. at 355, 588 P.2d at 521.

¶32 The City of Bozeman defended on the grounds that any claim by Walton arose upon

completion of the project in 1967. The Court noted, however, that Walton claimed damages

for his hay crop that traditionally have been classified as “temporary and consequential.”

Walton, 179 Mont. at 355, 588 P.2d at 521. The Court refused to bar Walton’s claim based

on the running of the limitations period due to the fact that the City “at all times . . . could

have abated the nuisance by taking curative action.” Walton, 179 Mont. at 356, 588 P.2d at

521. The Court failed to define what type of “curative action” would have been required to

abate the nuisance. The Court nevertheless declined to classify the nuisance as permanent in

light of the fact that the nuisance “was so terminable.” Walton, 179 Mont. at 356, 588 P.2d

at 521.

¶33 In Shors, a developer in 1978 placed a locked gate across a road designed to give lot

owners access to the Middle Fork of the Flathead River. 221 Mont. at 395-96, 720 P.2d at

242-43. One of the lot owners, Shors, filed an action against the developer in 1982. The
14
developer argued that the two-year statute of limitations barred the claim. Shors, 221 Mont.

at 396, 720 P.2d at 243. This Court disagreed. The presence of a gate blocking access to a

river constituted a continuing tort in light of the fact that the defendants readily could have

abated the nuisance by removal of the gate. Shors, 221 Mont. at 397, 720 P.2d at 243-44. A

new cause of action arose each day that the gate obstructed Shors’s free use of his easement.

Shors, 221 Mont. at 397, 720 P.2d at 244.

¶34 Neighboring landowners in Graveley I sought damages for the death of their cattle

due to defendants’ alleged negligence in allowing lead from ruptured batteries stored on

defendants’ property to migrate throughout the property. Defendants’ house burned to the

ground on September 30, 1984. Graveley I, 240 Mont. at 21, 782 P.2d at 372. The fire

exposed lead batteries stored inside the foundation walls. Graveley Ranch held a grazing

lease for the property on which the burned house sat. Graveley Ranch’s cattle soon “were

looking very bad and were losing weight.” Graveley I, 240 Mont. at 21, 782 P.2d at 372.

¶35 Graveley Ranch traced these symptoms and the eventual deaths of 27 cows and 11

calves in 1985 and 1986 to the leaking lead batteries. Graveley I, 240 Mont. at 21-22, 782

P.2d at 372. Graveley Ranch relied upon a letter dated November 4, 1985, from the Montana

Department of Health and Environmental Services that allegedly pinpointed the foundation

of defendants’ destroyed home as the source of the lead that had poisoned plaintiffs’ cattle.

Graveley I, 240 Mont. at 21, 782 P.2d at 372.

¶36 Graveley Ranch filed an action for damages on October 29, 1987. Defendants raised

the statute of limitations as a defense. Graveley I, 240 Mont. at 21, 782 P.2d at 372. The

trial court refused to toll the limitations period due to Graveley Ranch’s knowledge of the
15
actual cause of the injury to their cattle before November 4, 1985. Graveley I, 240 Mont. at

22, 782 P.2d at 373. The trial court relied upon a letter from Graveley Ranch’s counsel to

defendants dated September 25, 1985. The letter cited confirmation from the Department of

Health and Environmental Sciences (Department) that the batteries were the source of the

lead that had leached through groundwater to vegetation to which Graveley Ranch’s cattle

had access through the grazing lease. Graveley I, 240 Mont. at 22, 782 P.2d at 373.

¶37 This Court reversed. The Court acknowledged that the nuisance had “stabilized” in

the sense that defendants had stopped adding to the pile of leaking batteries. The Court

concluded, however, that the nuisance continued each day even without the defendants’

addition of any more leaking batteries on the plaintiffs’ land. Graveley I, 240 Mont. at 25,

782 P.2d at 375. The Court thus deemed the nuisance from the leaking batteries to be of a

continuous temporary nature in light of the fact that the nuisance “is continuing until it is

abated.” Graveley I, 240 Mont. at 25, 782 P.2d at 375. The Court explained that “[i]f

defendants have made no effort to remove the hazardous materials from the fire site, a new

cause of action may arise each time a cow becomes ill or dies as a result of lead poisoning.”

Graveley I, 240 Mont. at 25, 782 P.2d at 375.

¶38 BNSF points to the fact that the Court in Graveley v. Scherping, 247 Mont. 310, 806

P.2d 29 (Graveley II), following remand, affirmed dismissal of plaintiffs’ complaint. The

Court noted that it had not been made aware that plaintiffs had constructed a fence around

defendants’ burned out house on October 1, 1985. This fence accomplished the same

purpose of removing the batteries – keeping the cattle away from the toxic material. As a

result, the limitations period began to run once the nuisance had been abated through the
16
fence that kept the cattle away from the toxic material. Graveley II, 247 Mont. at 312, 806

P.2d at 30.

¶39 Finally, the Court in Knight faced the question of whether dust arising from a dirt road

constructed in 1957 constituted a temporary nuisance or a permanent nuisance at the time

that Knight filed his complaint in 1984. The City of Missoula in 1957 annexed a portion of

the land over which Pineridge Drive traversed. Knight, 252 Mont. at 237, 827 P.2d at 1272-

73. Knight alleged that dust from the dirt road constituted a continuing nuisance that

invaded his property each summer. The trial court dismissed the claim based on the fact that

the dust from the dirt road constituted a permanent nuisance. The trial court reasoned that

Knight’s complaint sought to remedy the same problems with the road that he first had raised

in 1957. Knight, 252 Mont. at 244, 827 P.2d at 1277.

¶40 This Court reversed. The City of Missoula “could have and may readily abate the

problems” through a variety of means, including paving the road. Knight, 252 Mont. at 245,

827 P.2d at 1278. As a result, the Court deemed the dust from the dirt road to constitute a

continuing nuisance. The limitations period would toll “until the nuisance is abated.”

Knight, 252 Mont. at 245, 827 P.2d at 1278. The Court reached this conclusion based upon

what it considered to be a similar analysis in Graveley I and Walton. Knight, 252 Mont. at

244-45, 827 P.2d at 1277-78. The Court cited Graveley I’s discussion of removing the

batteries to abate the nuisance. Knight, 252 Mont. at 244-45, 827 P.2d at 1277-78. With

respect to Walton, the Court discussed the fact that the flooding was “terminable by taking

curative action.” Knight, 252 Mont. at 244-45, 827 P.2d at 1277-78.

¶41 We discern one consistent theme in reviewing the historic decisions of this Court that
17
evaluate whether a nuisance should be classified as temporary or permanent: whether the

injury is sufficiently complete to ascertain permanent damages. Alleged “stabilization” of

the nuisance, on its own, rarely determines permanency of the injury. Blasdel and Haugen

Trust equate “stabilized” with groundwater tables reaching equipoise following a change in

water flows caused by construction of a dam or ponds. In the other cases, however, the

nuisance had “stabilized” only in the sense that the nuisance would not abate without some

action by the tortfeasor. This action could involve the relatively straightforward act of

removing the offending gate in Shors or removing the leaking batteries in Graveley I. On the

other hand, the action could require more strenuous efforts, such as some vaguely defined

“curative action” by the City of Bozeman in Walton to halt the continued flooding of

plaintiffs’ crops, the City of Missoula’s paving of a dirt road in Knight, or the plywood

company’s construction of a dam and underground storage tank to trap glue waste in Nelson.

All of the nuisances at issue in these cases would remain, or in other words, be permanent,

without some outside action to abate.

¶42 Although the Magistrate Judge did not analyze each of these Montana cases, she

relied upon the Ninth Circuit decision, Montana Pole & Treating Plant v. I.F. Laucks & Co.,

993 F.2d 676 (9th Cir. 1993), to bar the Property Owners’ claims. Montana Pole, in turn,

relied upon this Court’s decision in Blasdel for its analysis of whether the contamination at

issue constituted a temporary nuisance or a permanent nuisance. 993 F.2d at 680. As we

have discussed, however, Blasdel derived its determination that the nuisance had “stabilized”

from the particular facts of the case. The Court refused to bar the property owners’ inverse

18
condemnation action that they had brought more than 20 years after MPC had caused the

harm through its construction of Kerr Dam. Blasdel, 196 Mont. at 426, 650 P.2d at 894.

¶43 Montana Pole operated a wood treatment plant in Butte, Montana, for nearly a

century. Mont. Pole, 993 F.2d at 677. Montana Pole used penta, a chemical preservative,

which contaminated property on and near the treatment plant. Montana Pole dumped penta

into an unlined ditch and allowed two open-air pits to overflow over a period of almost forty

years. The penta migrated into nearby Silver Bow Creek. Mont. Pole, 993 F.2d at 677.

¶44 The court determined that a polluter cannot contaminate land continuously and then

claim that that pollution qualifies as a continuing tort caused by the manufacturer of the

contaminant. Mont. Pole, 993 F.2d at 678. The court rejected Montana Pole’s reliance on

Lahman v. Rocky Mountain Phosphate Co., 161 Mont. 28, 504 P.2d 271 (1972).

Neighboring property owners in Lahman complained of noxious smoke emissions emanating

from a phosphate manufacturing plant. The defendant phosphate plant took measures to

reduce the emissions after receiving complaints. The property owners filed a nuisance action

four and a half years after the first emissions. Lahman, 161 Mont. at 29-30, 504 P.2d at 272.

As noted by the court in Montana Pole, the trial court in Lahman submitted the cause to the

jury to consider damage claims during the two years before Lahman filed suit. Mont. Pole,

993 F.2d at 678.

¶45 Montana Pole distinguished Lahman on three grounds. First, the nuisance in Lahman

originated on property of the defendant phosphate plant. Second, the nuisance was

temporary and recurring. And finally, the nuisance was abatable by the phosphate plant.

Mont. Pole, 993 F.2d at 678. None of the defendant chemical companies in Montana Pole
19
had control over the release of the waste penta. Montana Pole exercised complete control

over the use of penta at the treatment plant. The penta did not emanate from property owned

or controlled by the defendant chemical companies. Montana Pole dumped the penta on its

own property. And the defendant chemical companies could not abate the release of the

penta. Only Montana Pole, as exclusive users of the penta, could abate its release. Mont.

Pole, 993 F.2d at 678.

¶46 Montana Pole differs from the instant case in similar ways that the Ninth Circuit

deemed significant in distinguishing Lahman. BNSF, and BNSF alone, used the chemicals

in its operations at the Yard that caused the contamination. Property Owners played no role,

either actively or passively, in causing the contamination. BNSF, like Montana Pole,

exercised exclusive control over the disposal of the waste. Property Owners again played no

role disposing of the contamination from the Yard. Finally, only BNSF could halt the

dumping of the chemicals. Property Owners had no hand in BNSF’s operations at the Yard.

BNSF has directed the attempted remediation of the contamination from the Yard. BNSF

proposed monitored natural attenuation to DEQ as the preferred cleanup method. Property

Owners have not participated in the remediation. These distinctions render Montana Pole of

limited relevance in our analysis.

¶47 The Magistrate Judge also pointed to the Ninth Circuit’s interpretation of Montana

law in Montana Pole to justify her reliance on the discovery rule codified at § 27-2-102(3),

MCA. The Ninth Circuit affirmed the district court’s determination that Montana Pole had

known about the pollution years before it filed suit. This knowledge of the pollution

potentially implicated the discovery rule. Mont. Pole, 993 F.2d at 678. The Ninth Circuit
20
did not deem the discovery rule issue to be dispositive, however, as it proceeded to decide

whether a continuing nuisance had taken place. Mont. Pole, 993 F.2d at 679. We likewise

do not deem the discovery rule dispositive in this case due to the potential application of the

continuing tort exception. As discussed further below, the discovery rule definitively would

bar a property contamination tort action at the expiration of the limitations period only where

the injury had become permanent in the sense that the injury no longer reasonably could be

abated, or had abated to a point where permanent damages could be ascertained.

¶48 BNSF further contends that allowing continuing tort claims to apply to stabilized

pollution that began well before the statute of limitations period would deny defendants

finality. BNSF cites our refusal to toll the statute of limitations in Montana Petroleum Tank

Release Compensation Board v. Federated Service Insurance Co., 2008 MT 194, 344 Mont.

45, 185 P.3d 998, to illustrate its point. The Montana Petroleum Tank Release

Compensation Board (Board) reimbursed several petroleum facilities for their cleanup

expenses after the discovery of oil leaks. Mont. Petroleum, ¶ 6. The Board later filed four

separate subrogation claims against the facilities’ insurers. Mont. Petroleum, ¶ 6. The Board

waited approximately ten years after it first began making payments to the facilities before it

sought reimbursement against the insurers. Mont. Petroleum, ¶¶ 7-10. An eight-year statute

of limitations applies to contract suits in Montana. Mont. Petroleum, ¶ 11; § 27-2-202(1),

MCA. The Court determined that “a rule that delays the commencement of the period of

limitations until a claim under a contract is made and denied would effectively nullify the

purpose of any statute of limitations.” Mont. Petroleum, ¶ 19.

21
¶49 The background to Montana Petroleum and Property Owners’ claim both involve the

contamination of the property. The similarities end there. Montana Petroleum involved a

contract dispute between the Board and several insurance companies. Mont. Petroleum, ¶ 6.

The Board sought a new tolling exception to the limitations period for contract actions.

Mont. Petroleum, ¶ 16. We declined to recognize a new exception in the context of a

contract dispute. Mont. Petroleum, ¶ 18.

¶50 No doubt existed that the Board knew about the facts of the contamination, the timing

of the release, and the extent of the contamination. The Board advanced the costs associated

with the cleanup of the contamination. Mont. Petroleum, ¶ 6. The Board inexplicably

waited beyond the eight-year statute of limitations for contract actions to seek subrogation

from the polluters’ insurers. Mont. Petroleum, ¶ 16. Here the extent of the contamination

from the Yard, the questions of whether the contamination continues to migrate, and whether

the contamination can be abated remain hotly debated. The same factors promoting finality

in Montana Petroleum do not exist.

¶51 The mere fact that the concentration levels of the contamination have “stabilized,”

without more, fails to support a bar to application of the continuing tort exception to the

statute of limitations. Montana cases make clear that stabilization alone does not trigger the

running of the limitations period. In fact, the Court in Haugen Trust ended its analysis with

the discussion of the fact that the nuisance posed by the groundwater “is apparently

abatable.” 204 Mont. at 513, 665 P.2d at 1135. Haugen Trust in no sense stands alone in

looking to whether the nuisance at issue can be abated in deciding whether to classify the

nuisance as permanent or temporary. See also Shors (locked gate posed temporary
22
nuisance); Graveley I (leaking lead acid batteries posed temporary nuisance); Knight (dusty

road posed temporary nuisance). We disagree with BNSF’s claim that the alleged

stabilization of a nuisance – in the form of pollution concentration levels no longer

increasing in the groundwater – provides some sort of bright line rule under Montana law on

whether to classify a nuisance as permanent or temporary. We turn then to examine the

other two factors posed by the certified question: migration and abatability.

Migration

¶52 The Property Owners’ expert testified that the soil, water, and bedrock continue to be

contaminated by the migrating pollution caused by BNSF. DEQ’s 1985 investigation into

the Yard required BNSF to examine whether the contamination had the potential to migrate

into the groundwater. According to the Magistrate Judge, BNSF began work shortly

thereafter to reduce, rather than prevent, migrating contamination entering the groundwater.

The Magistrate Judge acknowledged the migrating nature of the pollution. The Magistrate

Judge deemed immaterial the fact that the pollution continued to migrate, however, based on

her determination that the pollution from the Yard was not readily or easily abatable.

¶53 BNSF cites the reasoning of the Sixth Circuit in Village of Milford to support its claim

that the continuing migration of contamination from the Yard should not toll the limitations

period. The plaintiff in Village of Milford learned in 1989 that its municipal water supply

contained hazardous compounds. 390 F.3d at 930. K-H owned a factory uphill of the

town’s wells. Waste oil likely had leaked from a dumpster onto K-H’s property. The

company also had spread waste oil on its grounds. Village of Milford, 390 F.3d at 930.

23
¶54 K-H began remedial measures in 1994 and removed the contaminants from the soil at

the facility in 1997. Village of Milford, 390 F.3d at 931. It also installed a groundwater

interdiction system in 1999 to halt contaminants from flowing toward the town. The town

sued shortly thereafter. Village of Milford, 390 F.3d at 931. A jury found K-H liable for

trespass, but the trial court granted judgment notwithstanding the verdict for K-H, based on

its determination that the three-year statute of limitations barred the town’s claim. Village of

Milford, 390 F.3d at 931.

¶55 The Sixth Circuit applied Michigan law. The court acknowledged that plaintiffs could

receive damages for the limitations period if injured by a continuing tort. Village of Milford,

390 F.3d at 933. The court rejected the town’s argument, however, that migrating pollution

constituted a new cause of action. The town failed to present evidence to suggest that K-H

continued to release pollutants after March 1, 1996. Village of Milford, 390 F.3d at 933.

The court concluded that “the seepage of more water without further acts by the defendant

does not constitute an additional tort.” Village of Milford, 390 F.3d at 933. The three-year

statute of limitations under Michigan law barred the town’s claim. Village of Milford, 390

F.3d at 933.

¶56 The court drew largely upon the permanent tort standard from Horvath v. Delida, 540

N.W.2d 760 (Mich. Ct. App. 1995). The court in Horvath determined that in a cause of

action for flooding, overflow, or seepage that damages property, the cause of action accrues

when the land is “visibly damaged.” Horvath, 540 N.W.2d at 762. The Sixth Circuit relied

upon the Michigan standard related to flood damage and applied it to groundwater

contamination. Village of Milford, 390 F.3d at 933. The court used that definition to
24
determine that “[e]ven if further migration occurred, it was not a new act of trespass.”

Village of Milford, 390 F.3d at 933. See also Achee, 197 F.Supp.2d at 729-30 (dismissing

claim as time barred when plaintiffs failed to present any evidence that the pollution

continued to migrate onto plaintiffs’ property); LaBauve, 231 F.R.D. at 655-56 (applying

Alabama law to determine that a continuous tort requires repetitive acts or ongoing

wrongdoing).

¶57 Property Owners urge us to adopt a more flexible standard for pollution that continues

to migrate. They point to the Colorado Supreme Court’s decision in Hoery as a model.

There the court answered a certified question from the Tenth Circuit regarding continuing

torts. The certified question and factual background closely mirrored that asked by the U.S.

District Court in the instant case. The question asked: “[d]oes the ongoing presence of those

toxic chemicals on plaintiff’s property constitute continuing trespass and/or nuisance under

Colorado law?” Hoery, 64 P.3d at 215.

¶58 The plaintiffs in Hoery bought a residence near Denver with a groundwater well.

Pollution from a then shuttered, but previously active, military base had contaminated their

well with trichloroethylene. The toxic plume continued to migrate under their property and

entered the family’s groundwater on a daily basis. Hoery, 64 P.3d at 216. The court

reasoned that the pollution remained on the plaintiff’s property and the pollution continued

to migrate daily onto the plaintiff’s property. The court determined that any continuing

wrongful property invasion constitutes a continuing trespass or nuisance. Hoery, 64 P.3d at

223. The court stated, “alleged migration and ongoing presence of toxic chemicals on

25
Hoery’s property each constitutes a continuing trespass and nuisance under Colorado law.”

Hoery, 64 P.3d at 216.

¶59 The California courts in Starrh and Starrh Cotton Growers v. Aera Energy, LLC, 63

Cal. Rptr. 3d 165, (Cal. 5th App. Dist. 2007), analyzed a similar situation. The plaintiff in

Starrh, a cotton grower, sued an oil company due to the migration of wastewater produced

from the oil company’s production activities on its land. The oil company produced 6-9

barrels of wastewater for every barrel of oil. The oil company discharged this highly saline

wastewater into unlined percolation ponds. The wastewater subsequently migrated into the

aquifer beneath the cotton grower’s property. The oil company defended against the claim,

in part, by arguing that the trespass had become permanent, and, therefore, barred by the

statute of limitations. Starrh, 63 Cal. Rptr. 3d at 171.

¶60 The court recognized that whether the trespass “can be discontinued or abated”

represented the key distinction between a permanent trespass or nuisance and a continuing

trespass or nuisance. Starrh, 63 Cal. Rptr. 3d at 173. In this regard, the court rejected the oil

company’s contention that its construction and initial use of the ponds in the 1950s and

1960s constituted the trespass. The court reasoned that the oil company’s wastewater that

continues to permeate through the ponds “is the trespass.” Starrh, 63 Cal. Rptr. 3d at 173.

And the harm caused by the trespass can be abated “by some means.” These means included

the oil company’s reduction in its reliance on the ponds to dispose of the wastewater or its

complete discontinuance of the practice. Either option would result “in a lessening of the

impact on the underlying aquifers.” Starrh, 63 Cal. Rptr. 3d at 174.

26
¶61 The court further compared the continuing migration of the oil company’s wastewater

to the initial burial of telephone lines at issue in Spar v. Pacific Bell, 1 Cal. Rptr. 2d 480

(Cal. App. 2nd 1991). The court in Spar determined that permanent structures, like

pipelines, wells, and telephone lines, cannot qualify as a temporary or continuing nuisance.

Spar, 1 Cal. Rptr. 2d at 484. This distinction between the intentional installation of

permanent structures, but on the wrong party’s property, and the accidental release of

pollution and accompanying unintended migration onto a neighboring party’s property,

compares favorably with the Colorado court’s analysis in Hoery. The court in Spar further

buttressed its permanent nuisance conclusion on the fact that the public utility at issue could

have kept the telephone facilities on the property by paying just compensation. 1 Cal. Rptr.

2d at 483. As we noted in Sunburst, however, Montana law provides for no express power

of eminent domain for polluters and we have declined to find an implied right. Sunburst, ¶

47.

¶62 The Hoery court allowed only one exception to its rule regarding continuing torts.

This exception involves a continuing property invasion that constitutes a socially beneficial

structure—such as a pipeline, an irrigation ditch, or railway line. This type of permanent

structure, intentionally built, but inadvertently placed onto a party’s property, becomes a

permanent tort under Colorado law. Hoery, 64 P.3d at 220; see also Spar, 1 Cal. Rptr. 2d at

484 (determining that permanent structures could not qualify as continuing temporary

nuisances). The court emphasized that Colorado’s public policy, by contrast, supports

discontinuing “both the continuing migration and the ongoing presence of toxic chemicals”

on a party’s property. Hoery, 64 P.3d at 223.
27
¶63 Washington law likewise provides that a contamination tort “continues until the

intruding substance is removed.” Bradley, 709 P.2d at 791 (Wash. 1985). Particulate matter

blew from the smokestacks of a copper smelter for almost one hundred years in Bradley.

709 P.2d at 784. Plaintiff owned neighboring land affected by this nearly century-long

contamination. Plaintiff brought a nuisance and trespass action against the refinery.

Bradley, 709 P.2d at 784. The federal district court certified the question to the Washington

Supreme Court to determine how the limitations period should apply. Bradley, 709 P.2d at

784. The court determined that a continuing trespass or nuisance repeats each day until the

refinery removes the offensive substance from the plaintiff’s property. Bradley, 709 P.2d at

791.

¶64 The Ninth Circuit, applying California law, reached a similar conclusion. The United

States government in Arcade operated a laundry at an Air Force Base that discharged waste

into a neighboring groundwater well. 940 F.2d at 1265. The Ninth Circuit reversed the

federal district court dismissal of the water district’s claim as time-barred. Arcade, 940 F.2d

at 1269. The Ninth Circuit determined that “it is [the] leaching of contaminants, not the

operation of the laundry, that is relevant in characterizing the nuisance.” Arcade, 940 F.2d at

1268. The fact that the United States had stopped the operation of the laundry had nothing to

do with the continued injury suffered by the plaintiffs. Arcade, 940 F.2d at 1269. The Ninth

Circuit concluded that “should Arcade prevail, Arcade may bring successive actions for its

periodic damages so long as the nuisance continues but remains impermanent.” Arcade, 940

F.2d at 1269.

28
¶65 BNSF claims that the California Supreme Court later overruled Arcade in Mangini v.

Aerojet-General Corp, 912 P.2d 1220 (Cal. 1996). Plaintiffs in Mangini sued Aerojet, a

large industrial manufacturer of solid fuels. Plaintiffs had acquired a ranch formerly leased

by Aerojet. Mangini, 912 P.2d at 1221. Plaintiffs lacked knowledge of chemical

contamination on the land before purchasing it. Mangini, 912 P.2d at 1222. They acquired

notice, however, after the State of California filed two lawsuits concerning the

contamination. Plaintiffs sued Aerojet decades after they found out about the contamination.

Mangini, 912 P.2d at 1222.

¶66 The court presented to the jury at trial, as an element of the plaintiffs’ cause of action,

the question of whether the contamination constituted a continuing nuisance. The court

instructed the jury that plaintiffs had the burden of establishing that the nuisance could be

abated. Mangini, 912 P.2d at 1225. Plaintiffs failed to present evidence regarding the

abatability of the contamination on their property, and the jury found for Aerojet due to

plaintiffs’ failure to establish this element of its claim. Mangini, 912 P.2d at 1226. The

California Supreme Court affirmed the verdict. Mangini, 912 P.2d at 1230. The court agreed

that “plaintiffs’ complete failure to offer substantial evidence of the cost and reasonableness

of remediation leads ineluctably to the conclusion that the nuisance at issue is ‘permanent’

for statute of limitations purposes.” Mangini, 912 P.2d at 1223 n. 2.

¶67 We disagree with BNSF’s interpretation of Mangini. The court determined that the

plaintiffs had failed to present sufficient evidence that the nuisance reasonably could be

abated to support their claims of continuing nuisance. The plaintiffs failed to meet their

burden of persuasion in the trial. Mangini, 912 P.2d at 1221. Starrh supports this
29
interpretation: “Our conclusion is consistent with Mangini, which did not change existing

law. Instead, Mangini applied well-established principles to a somewhat unique factual

situation and concluded that the only available test—the reasonable-abatement test—had not

been proven.” Starrh, 63 Cal. Rptr. 3d at 173. The California court in Mangini did not

modify application of the continuing tort doctrine discussed in Arcade.

¶68 We face a choice between the two camps into which current law pertaining to

migrating property contamination falls. The first group, occupied by Colorado’s Hoery,

California’s Starrh, Washington’s Bradley, and the Ninth Circuit’s Arcade, considers

migrating property contamination to constitute a continuing temporary tort. Each entry of

pollution onto a party’s property caused by its migration constitutes a new cause of action.

The second viewpoint, as expressed by the Sixth Circuit in Village of Milford and the

Michigan court in Horvath, considers the defendant’s actions, and not the further movement

of the defendant’s pollution. The statute of limitations begins to run once the defendant

ceases to act.

¶69 Graveley I supports the notion that a tortfeasor need not add to the nuisance for it to

be classified as continuing. The Court determined that the nuisance continued each day even

without the defendant’s addition of more leaking batteries. Graveley I, 240 Mont. at 25, 782

P.2d at 375. Not all of the Montana nuisance cases that we have discussed herein, however,

address directly the effect of the continuing migration of a nuisance on the question of

whether to classify the nuisance as temporary or permanent.

¶70 For example, the gate in Shors involved a permanent structure that did not move. The

Court nevertheless classified the nuisance as temporary due to the fact that the developer
30
could have removed the gate to abate the nuisance. Shors, 221 Mont. at 397, 720 P.2d at

243-44. Likewise the dust at issue in Knight annually blew onto Knight’s property during

the summer months. This fact played little role in the Court’s determination that the

nuisance was of a continuing and temporary nature. The Court instead focused on the fact

that the City of Missoula could abate the nuisance. Knight, 252 Mont. at 245, 827 P.2d at

1278.

¶71 Many of the other cases, however, involved the migration of water, Walton, 179

Mont. at 355, 588 P.2d at 521 (stormwater run-off due to reconfiguration of drainage ditch),

Blasdel, 196 Mont. at 421, 650 P.2d at 892 (rising water table caused by Kerr Dam), and

Haugen Trust, 204 Mont. at 513, 665 P.2d at 1135 (rising groundwater from newly

constructed ponds), or the migration of water contaminated with some pollutant, Nelson, 154

Mont. at 417, 465 P.2d at 315 (wastewater contaminated with glue waste infiltrating well

water) and Graveley I, 240 Mont. at 25, 782 P.2d at 375 (battery acid transported through

groundwater). With the exception of Blasdel, the Court classified each nuisance as

continuing and temporary until abated. The Court further noted in each instance that the

nuisance could be abated through some sort of “curative action.” See e.g. Walton, 179 Mont.

at 355, 588 P.2d at 521 (City of Bozeman at all times could have taken “curative action”);

Haugen Trust, 204 Mont. at 513, 665 P.2d at 1135 (culvert cap temporarily had solved the

problem). The rising water table in Blasdel obviously could not be abated. The Court

declined to label the tort as permanent and thereby trigger the running of the statute of

limitations, however, until the water table had “stabilized.” Blasdel, 196 Mont. at 426, 650

P.2d at 894.
31
¶72 We similarly decline to follow the reasoning that once the tortfeasor has stopped

adding to the nuisance the injury should be deemed permanent. MPC constructed Kerr Dam

in 1939. It took no further steps to cause an increase in the water table. This Court

nevertheless determined that the injury in the form of the rising water table triggered by the

1939 construction of Kerr Dam had not “stabilized” and thereby become a permanent injury

until 1960. Blasdel, 196 Mont. at 426, 650 P.2d at 894. The landowner in Graveley I and II

added no more leaking batteries to the pile stored in the burned out foundation exposed by

the 1984 fire. The nuisance retained its continuing and temporary character until the

plaintiffs abated the nuisance by fencing their cattle out of the affected area in 1985.

Graveley II, 247 Mont. at 312, 806 P.2d at 30-31. Likewise the City of Bozeman in Walton,

179 Mont. at 355, 588 P.2d at 521, the City of Missoula in Knight, 252 Mont. at 245, 827

P.2d at 1278, and the developer in Haugen Trust, 204 Mont. at 513-14, 665 P.2d at 1135,

undertook no further actions related to the nuisance following the completion of their various

construction projects. The Court in all three cases nevertheless focused on the continuing

effect of the tortfeasors’ conduct rather than on the initial creation of the nuisance.

¶73 The reasoning and outcomes of these Montana cases leads us to conclude, as further

explained below, that a nuisance of a continuing temporary nature includes migrating

pollution. A defendant’s failure to stop the continuing migration of a nuisance onto a

plaintiff’s property, where it reasonably can be stopped, constitutes a continuing property

invasion. Hoery, 64 P.3d at 222. We decline to adopt the Sixth Circuit’s reasoning in

Village of Milford. 390 F.3d at 933. The migrating pollution in the instant case, though

stabilized in terms of concentration levels, fits Montana’s historical definition of a
32
continuing temporary injury. To classify as permanent a nuisance that continues to migrate

could bar a plaintiff from bringing a nuisance action, even if the contamination from a

defendant’s tortious actions continues to affect different parts of her land each day. Haugen

Trust, 204 Mont. at 513, 554 P.2d at 1135. The fact that a nuisance continues to migrate

constitutes an important factor under Montana law in evaluating whether the pollution should

be treated as a continuing trespass or nuisance. Graveley I, 240 Mont. at 25, 782 P.2d at 375.

Abatability

¶74 We turn, finally, to the king of our nuisance jungle: whether the degree of difficulty to

abate a nuisance should determine whether to classify the nuisance as temporary or

permanent. This question looms large over our analysis. The fact that the nuisance at issue

could be abated in some fashion permeates this Court’s historical nuisance cases. The

“curative action” by the City of Bozeman to stop the stormwater run-off from flooding the

property owner’s field in Walton and the culvert cap used in Haugen Trust to solve

temporarily the basement flooding caused by the construction of ponds at a new subdivision

serve as prime examples. The Court in both instances relied upon the fact that both

nuisances could be abated to classify the nuisances at issue as continuing and temporary.

Walton, 179 Mont. at 355, 588 P.2d at 521; Haugen Trust, 204 Mont. at 513, 665 P.2d at

1135.

¶75 The U.S. District Court posited the “readily or easily abatable” standard to evaluate

whether a tort qualifies as permanent or temporary under Montana law. Pursuant to the

court’s formulation, a nuisance or trespass that takes a long time to clean up, or would entail

great expense, would not be classified as readily or easily abatable, and, therefore, would be
33
deemed permanent. BNSF expert reports indicate that the future migration of the

contamination onto the Property Owners’ parcels could be contained. They further indicate,

however, that the contamination level may never be able to reach zero. BNSF equates the

Yard site to the situation faced by the Kansas Supreme Court in McAlister.

¶76 There a farmer sued for temporary damages to his water well caused by the

defendant’s oil fields. The farmer alleged “that not less than 150 nor more than 400 years

will pass before the well water will be fit for drinking.” McAlister, 662 P.2d at 1212. The

farmer provided no indication that the pollution could be abated and the defendants had

discontinued oil well operations in the 1940s. The court determined that under these

circumstances the injury had become “fixed” and “the property will always remain subject to

that injury.” McAlister, 662 P.2d at 1212.

¶77 The Tenth Circuit distinguished McAlister in Miller v. Cudahy Co., 858 F.2d 1449

(10th Cir. 1988). Both cases applied Kansas law. The neighboring farmers in Miller alleged

that salt mining by Cudahy Co. had caused the pollution of an underground aquifer that

flowed under their farms. The pollution allegedly prevented the farmers from using water in

the aquifer to irrigate their crops. The trial court determined that the pollution emanating

from the salt plant constituted a continuing, abatable nuisance that caused temporary

damages. The trial court found Cudahy Co. liable for $3.06 million in actual damages and

$10 million in punitive damages. Miller, 858 F.2d at 1451.

¶78 The Tenth Circuit rejected Cudahy Co.’s attempt to analogize its defense to the one

adopted by the court in McAlister. Cudahy Co. admitted to having polluted the aquifer and

claimed that the pollution would last indefinitely. The Tenth Circuit recognized, however,
34
that “the cleanup process can be accelerated by intervention measures” and could be

achieved within a reasonable time. Miller, 858 F.2d at 1455.

¶79 Property Owners contend that BNSF’s preferred choice of remediation—monitored

natural attenuation—distorts the length of time that it will take to abate the harm from the

Yard, and, correspondingly, distorts the Magistrate Judge’s determination that their injuries

from the Yard cannot be deemed temporary. Property Owners further allege that the

abatability time drastically will reduce if the federal court requires BNSF to apply a more

aggressive abatement technique. They acknowledge that a more aggressive technique would

be more expensive for BNSF. The trier of fact must weigh these factors to determine

whether a nuisance could be abated. We reach again the question of the degree of difficulty

required to abate the nuisance.

¶80 The U.S. District Court derived the “readily abatable” standard from the Court’s

decision in Graveley I. 240 Mont. 20, 782 P.2d 371. Graveley I and other Montana cases

that have discussed readily or easily abatable nuisances used that language more to describe

the facts of those cases than to establish a standard. The Court in Graveley I determined that

the harm in the form of the leaking batteries “could have been readily abated” simply by

removing the ruptured batteries and cleaning the foundation walls. Graveley I, 240 Mont. at

24, 782 P.2d at 374. The Court did not define the parameters of Montana law with respect to

the distinction between temporary and permanent injuries. The Court described the ease

with which the defendants could have abated their nuisance as a factor in classifying the

injury as temporary in nature.

35
¶81 The U.S. District Court similarly applied the “easily abatable” language from Shors.

Removal of the gate represented an obvious and simple solution to abating that injury.

Shors, 221 Mont. at 397, 720 P.2d at 243-44. The Court’s choice of words, “easily abated,”

once again described the facts of that case. Our other cases that have addressed continuing

nuisances have not used the words “readily” or “easily” when describing the abatement

standard. For example, the Court in Walton noted that “the City could have abated the

nuisance by taking curative action.” 179 Mont. at 356, 588 P.2d at 521. The Court failed to

identify the type of “curative action” and the Court failed to categorize the ease of

abatability.

¶82 Haugen Trust likewise rejected the notion that the injury could be classified as a

permanent nuisance on the grounds that “the nuisance is apparently abatable.” 204 Mont. at

513, 665 P.2d at 1135. The Court did not specify how “apparent” the abatability must be.

The Court simply repeated the well-accepted rule that the nuisance must be abatable in order

to constitute a continuing tort. Haugen Trust, 204 Mont. at 514, 665 P.2d at 1135. We agree

with the Property Owners that “readily or easily abatable” fails to capture the parameters of a

continuing tort under Montana law.

¶83 Restatement (Second) of Torts defines an “abatable physical condition” as an

abatement that could “be accomplished without unreasonable hardship or expense.”

Restatement (Second) of Torts § 839 cmt. f (1979); Mangini, 912 P.2d at 1227. Similarly,

the court in Spaulding v. Cameron, 239 P.2d 625 (Cal. 1952), recognized that “abatable”

means reasonably abatable. This concept of “reasonably abatable” resonated with the court

in Mangini more than four decades later. Mangini made clear that a nuisance must be
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regarded as permanent and the plaintiff relegated to a single cause of action and a single

limitations period where as a practical matter abatement would be “inappropriate or unfair.”

Mangini, 912 P.2d at 1228.

¶84 This Court has adopted the measure of damages for a temporary injury to property

from the Restatement (Second) of Torts. Restatement (Second) of Torts § 929(1) (1979);

Lampi, ¶ 32. An injury qualifies as temporary if the “tortfeasor could restore the destroyed

property to substantially the condition in which it existed before the injury.” Lampi, ¶ 32;

Sunburst, ¶ 31. We have adopted other sections of Restatement (Second) of Torts. See e.g.

Sunburst, ¶ 36 (adopting § 929 for calculating damages to real property); Crisafulli v. Bass,

2001 MT 316, ¶ 23, 308 Mont. 40, 38 P.3d 842 (adopting § 316, imposing liability on a

parent for acts of a child); Brandenburger v. Toyota Motor Sales USA Inc., 162 Mont. 506,

513 P.2d 268 (1973) (adopting § 402(A), imposing strict liability on defective product

sellers).

¶85 American Jurisprudence’s reasonableness standard for abatement of continuing

nuisances similarly provides that a nuisance continues “if abatement is reasonably and

practicably possible or where it is abatable at a reasonable cost.” 58 Am. Jur. 2d Nuisances

§ 27. We have adopted other sections of American Jurisprudence related to nuisance claims.

See e.g. Haugen, ¶ 15 (adopting § 1 to define nuisance in Montana); Wilhelm v. Great Falls,

225 Mont. 251, 256, 732 P.2d 1315, 1318 (1987) (adopting § 221 to establish that

contributory negligence can be a defense in a nuisance action).

¶86 Other jurisdictions have applied a reasonably abatable standard. The court in Beck

Development Co. v. Southern Pacific Transportation Co. used a multi-factor analysis to
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determine whether the oil pollution could be abated at a “ ‘reasonable cost by reasonable

means.’ ” 52 Cal. Rptr. 2d 518, 559 (Cal. 3rd App. Dist. 1996) (quoting Mangini, 912 P.2d

at 281). The California court constructed “fundamental considerations” to apply to the

reasonableness of abating a nuisance. These considerations included feasibility, alternatives

to abatement, the cost and time involved, competing interests, and a cost-benefit analysis of

abatement. Beck, 52 Cal. Rptr. 2d at 559-60.

¶87 Another California court, in Starrh, described the possibility of abatement as a

standard in which “it must be possible to clean up the toxic materials without unreasonable

hardship or expense.” 63 Cal. Rptr. 3d at 172. The court discussed the “evolving tension

between economic interests and environmental protection.” Starrh, 63 Cal. Rptr. 3d at 174.

This Court in Sunburst recognized these tensions when it declined to cap restoration

damages at the market value of the property: “[a] potential tortfeasor would have an

incentive to disregard or discount risks of contamination or pollution to neighboring property

owners.” Sunburst, ¶ 46. BNSF urges this Court to set, in effect, a similar limit on a

polluter’s liability by requiring remediation only if the harm could be abated easily or

readily.

¶88 We agree that “ ‘little or no incentive to make remedial efforts’ ” would exist once a

court classifies a nuisance as permanent. Starrh, 63 Cal. Rptr. 3d at 174 (quoting Baker v.

Burbank-Glendale-Pasadena Airport Auth., 705 P.2d 866, 872 (Cal. 1985)). This ability for

a tortfeasor to avoid remedying a plaintiff's harm due to a court deeming an injury

permanent, rather than temporary, conflicts with the overriding philosophy of tort law. The

reasonably abatable standard, by contrast, comports with the general standards of tort law.
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Tort law seeks to “put an injured person in a position as nearly as possible equivalent to his

position prior to the tort.” Restatement (Second) of Torts § 901 cmt. a (1979); Lampi, ¶ 21;

Sunburst, ¶ 32. A defendant’s abatement of property damage substantially would restore the

plaintiff’s property back to the condition in which it existed before the injury. Restatement

(Second) of Torts § 929(1) (1979). This reasonable abatement standard further accomplishes

the companion goal of bringing finality to a dispute for purposes of the statute of limitations.

Linder v. Missoula Co., 251 Mont. 292, 298, 824 P.2d 1004, 1007 (1992).

¶89 We adopt the reasonably abatable standard for continuing torts as announced in

Restatement (Second) of Torts § 839. The ease with which a tortfeasor could abate the harm

represents merely one element to consider. Courts should evaluate whether it would be

reasonable for the tortfeasor to abate the harm taking into account all factors, including the

ease with which the harm could be abated. Other factors include the cost of the abatement,

the type of property affected, the severity of contamination, and the length of time necessary

to remediate such pollution. See Beck, 52 Cal. Rptr. at 559-60.

¶90 The reasonableness test for an abatable nuisance accords with this Court’s decision in

Burk Ranches v. State of Montana, 242 Mont. 300, 790 P.2d 443 (1990). The Court

determined that potential abatement must “be an actual possibility within reasonable

capabilities of the parties.” Burk Ranches, 242 Mont. at 306-07, 790 P.2d at 447. The words

“actual possibility” imply a reasonableness standard. More importantly, the Court

recognized the “reasonable” capabilities of the parties. Although Burk Ranches addressed

the appropriate measure of damages, the reasonableness standard that the Court espoused

also applies to potential abatement.
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¶91 The trier of fact must determine whether the cost of abatement would be reasonable

under the circumstances. Reasonableness generally presents a question of fact for the trier of

fact to weigh the evidence and judge the credibility of the witnesses. Dean v. Austin Mut.

Ins. Co., 263 Mont. 386, 389, 869 P.2d 256, 258 (1994). None of the insurance related

exceptions, Redies v. Attorneys Liability Protection Society, 2007 MT 9, ¶¶ 32-33, 335 Mont.

233, 150 P.3d 930, apply to the question of the reasonableness of a proposed abatement.

This reasonableness question must be decided by the trier of fact.

¶92 We recognize the potential inconvenience to a district court of having the jury resolve

factual disputes that implicate a potentially dispositive statute of limitations affirmative

defense. A district court may be required to hold in abeyance any ruling on the statute of

limitations affirmative defense until the jury first determines whether the nuisance

reasonably can be abated and thereby the nuisance qualifies as a continuing tort. The court

would address whether the limitations period had run only if the plaintiff fails to establish the

elements of a continuing tort, as determined by the jury, and corresponding tolling of the

limitations period.

¶93 This process imposes no novel or unique burden. In fact, the tolling provisions

contained in § 27-2-102(3), MCA, support this approach. As we noted in Blackburn v. Blue

Mountain Women’s Clinic, 286 Mont. 60, 951 P.2d 1 (1997), the self-concealing nature of a

claim could trigger the tolling provision of § 27-2-102(3), MCA. There a patient alleged that

a medical clinic had failed to disclose the risks of abortion and had failed to reveal the truth

about the transmission of HIV. The district court dismissed the claim based on the running

of the three-year negligence statute of limitations. This Court reinstated the patient’s
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negligence claim to allow the patient the opportunity to demonstrate to the jury that “she

exercised due diligence sufficient to trigger the tolling provision of § 27-2-102(3), MCA.”

Blackburn, 286 Mont. at 79-80, 951 P.2d at 34-35.

¶94 We likewise addressed in Textana, Inc. v. Klabzaba Oil & Gas, 2009 MT 401, 353

Mont. 442, 222 P.3d 580, the interplay between a claim of fraudulent concealment and a

statute of limitations affirmative defense. Klabzaba’s counterclaim alleged breach of

contract. Textana, Inc. raised a statute of limitations affirmative defense. Klabzaba alleged

that Textana Inc.’s fraudulent concealment had prevented it from discovering the breach of

contract claim. Textana, ¶¶ 24-25. The district court determined that the question of when

Klabzaba discovered the alleged breach of contract should be submitted to the jury in light of

the existence of sufficient facts to raise a question of fraudulent concealment. Textana, ¶ 36.

We affirmed. We agreed with the district court that the record revealed sufficient evidence

of potential fraudulent concealment to support the district court’s decision to send the statute

of limitations question to the jury. Textana, ¶ 40. See also Fasch v. Weeden Constr., 2011

MT 258, 362 Mont. 256, 262 P.2d 1117 (determining that the district court improperly had

resolved factual disputes that should have gone to the jury in order to reach the legal question

of whether the defendant owed a duty of care to the plaintiff).

¶95 A plaintiff would have to establish sufficient evidence of the potential reasonableness

of the proposed abatement to send the statute of limitations question to the jury. The district

court retains the ability to grant summary judgment where the plaintiff fails to establish a

genuine issue of fact. Although a plaintiff may be able to clear this threshold in many cases,

Mangini illustrates that the plaintiff will not always meet this burden. 912 P.2d at 1226. A
41
district court retains the discretion to administer its docket in the most efficient manner

through the use of pretrial hearings, special verdict forms, or other mechanisms contemplated

by M. R. Civ. P. 16.

¶96 BNSF poses one final obstacle on the path out of our nuisance jungle. BNSF argues

that the nuisance must be abatable completely in order to qualify as temporary. We disagree.

The Starrh court and other jurisdictions have recognized that even abating harm “by some

means” would lessen the injury to plaintiffs. Starrh, 63 Cal. Rptr. 3d at 174. Mangini

accepted the general proposition that “something less than total decontamination may suffice

to show abatability.” Mangini, 912 P.2d at 1226.

¶97 The D.C. Circuit in Beatty v. Washington Metropolitan Area Transit Authority

(WMATA), 860 F.2d 1117, 1124 (D.C. Cir. 1988), likewise determined that a nuisance is

abatable if it can be reduced. Vibrations emanating from subway trains operated by

WMATA caused damage to plaintiff’s house situated 65-80 feet away from the tracks.

Beatty, 850 F.2d at 1119. WMATA countered that the subway system constituted a

permanent nuisance. Beatty, 850 F.2d at 1120. The court concluded that evidence presented

by plaintiff showed that the WMATA indeed could dampen the vibrations. The court also

determined that genuine issues of material fact existed as to whether the nuisance was

permanent or continuing. Beatty, 850 F.2d at 1122.

¶98 We disagree with BNSF that abatement of an injury represents an all or nothing

proposition. Black’s Law Dictionary defines “abatement” as “[a] reduction, a decrease, or a

diminution.” Black’s Law Dictionary 15 (4th ed., West 1968). An abatable nuisance does

not have to be capable of complete eradication. As we have recognized, a defendant’s
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abatement of property damage substantially would restore the plaintiff’s property back to the

condition in which it existed before the injury. Restatement (Second) of Torts § 929(1)

(1979). We do not require complete restoration. We agree with the D.C. Circuit that to

equate abatability only to nuisances that can be removed entirely “does violence to the law of

nuisance.” Beatty, 860 F.2d at 1124. A tortfeasor should not avoid liability for his

contamination simply because his misdeeds cannot be undone completely. The degree of

abatement determines instead whether permanent damages can be ascertained. When no

further abatement is reasonable, the injury is complete, and the injury is permanent. The trier

of fact must consider whether the reduction or decrease in the nuisance would be reasonable

based on the same factors that we earlier have discussed, ¶ 89, regarding abatability.

CONCLUSION

¶99 We close with one final effort to trace the contours of the proper application of the

continuing tort doctrine under Montana law. Contamination that has stabilized in terms of

quantity or concentration, but continues to migrate, will toll the statute of limitations until the

harm no longer reasonably can be abated. Once a determination has been made that the

nuisance no longer reasonably is abatable, however, the injury should be classified as

permanent. Under those circumstances, a plaintiff would be required to bring an action

within the limitations period when the plaintiff knows, or reasonably should know, of a

permanent injury.

¶100 This reasonably abatable standard for continuing torts follows the theory behind

nuisance and trespass law in Montana and further promotes the principle that tort law seeks

to restore the injured party as closely as possible to the injured party’s pre-tort position.
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Restatement (Second) of Torts § 901 cmt. a (1979); Lampi, ¶ 21; Sunburst, ¶ 32. A tortfeasor

who impairs the property rights of another should not prevail simply because its pollution or

interference with another’s property takes a lengthy amount of time or a large amount of

money to abate. The trier of fact must determine whether further abatement would be

reasonable under the evidence presented. This formulation balances the need for finality

with a tortfeasor’s obligation to restore substantially the injured party to his pre-tort position.

Lampi, ¶ 32.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BLAIR JONES
District Court Judge Blair Jones sitting
for Justice Michael E Wheat

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