HomeMy WebLinkAbout05-18-15, Story Mill, Fisher et al ComplaintEdward P. Moriarity
Shandor S. Badaruddin
MORIARITY & BADARUDDIN, PLLC
736 South Third Street West
Missoula, Montana 59801
Telephone: 406-728-6868
Facsimile: 406-728-7722
Email: ed@mbblawfirm.com
shandor@mbblawfirm.com
Attorneys for Plaintiff
GALLATIN COUNTY CLERK
OF DISTRICT COURT
JENNIFER 88R/,`mop
1014 DEC 31 PA 3 18
FILED
QY
DFr"UTY
MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT
COUNTY OF GALLATIN
LESLEY FISCHER, SANDRA FISCHER,
CAROLINE BOWEN, PETE McGOVERN,
EILEEN McGOVERN, EDWARD
MORIARITY, KATHERINE MORIARITY,
and JOHN DOES 1-30,
Plaintiffs,
V.
CITY OF BOZEMAN, GALLATIN
COUNTY, STATE OF MONTANA, GOLF
COURSE PARTNERS, INC., and JOHN
DOES 1-20,
Defendant.
CAUSE NO: 2)r 14_ ggLi
COMPLAINT
(TORT- NON -MOTOR VEHICLE)
AND REQUEST
FOR JURY TRIAL
O'du'n"'rz°'ro 1044ue
COMES NOW the Plaintiffs, by and through their counsel and herein in submit
this Complaint against the Defendants on the grounds and for the following reasons:
I. PARTIES,
A. Plaintiffs
Lesley Fischer and Sandra Fischer are residents of Bozeman, Gallatin County,
State of Montana, and reside at 610 St. Andrews Drive in the City of Bozeman, 59715,
which is located in Bridger Creek III (hereinafter may be referred to as BC. III), a
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subdivision that is adjacent to the Bozeman Landfill. The building permit for their
property was issued on March 16. 2001. The Certificate of Occupancy was issued by the
City of Bozeman Department of Building Inspection for the Fischer home on October 26,
2001. The Plaintiffs Lesley Fischer and Sandra Fischer bring this Complaint as
individuals and as representatives of their entire family.
2. Caroline Bowen is a resident of Bozeman, Gallatin County, State of Montana, and
resides at 972 St. Andrews Drive in the City of Bozeman, 59715, which is located in
Bridger Creek III, a subdivision that is adjacent to the Bozeman Landfill. The building
permit for her property was issued in March of 2004 and the home was completed in
December 2004 and a certificate of occupancy was issued. The Plaintiff Caroline Bowen
brings this Complaint as an individual and as the representative of her entire family.
3. ' Pete McGovern and Eileen McGovern are residents of Bozeman, Gallatin County,
State of Montana, and reside at 801 Turnberry Court in the City of Bozeman, 59715,
which is located in Bridger Creek III, a subdivision that is adjacent to the Bozeman
Landfill. The building permit for their property was issued on April 7, 2004. The
Plaintiffs Pete McGovern and Eileen McGovern bring this Complaint as individuals and
as representatives of their entire family.
4. Edward Moriarity and Katherine Moriarity are residents of Bozeman, Gallatin
County, State of Montana, and reside at 973 St. Andrews Drive in the City of Bozeman,
59715, which is located in Bridger Creek III, a subdivision that is adjacent to the
Bozeman Landfill. The building permit for their property was issued to JMB, Inc., d/b/a
Pro -Builder in 2005. The new home was purchased by Plaintiffs on September 24, 2007
and it has been their principal home ever since. The Plaintiffs Edward Moriarity and
Katherine Moriarity bring this Complaint as individuals and as representatives of their
entire family, including but not limited to Pauline Wagner.
5. Plaintiffs are individuals who own property and live in the Bridger Creek III
Subdivision. Plaintiffs either bought their property and built homes, or brought the
property with new homes constructed thereon, in BC. 111. The Plaintiffs acquired their
homes with the intention to reside therein, so they could have safe, peaceful enjoyment of
life, improve the quality of their life, take advantage of the equality of opportunity and to
secure the blessings of liberty and the protection of their investment, not only for them
but for their future generations, on this represented safe, healthy property that had been
permitted, regulated and approved by the City of Bozeman, Gallatin County, and the
State of Montana (hereinafter may be collectively referred to as "Defendant
Governmental Entities"), as said Plaintiffs had been so promised by the Constitution of
the State of Montana.
B. Defendants
6. Defendant City of Bozeman (the City) is a municipal corporation located within
Gallatin County, and the State of Montana. It operates by and through individuals elected
by its voters, and has duties and responsibilities as set forth in law.
7. Defendant Gallatin Comity is a County Government in the State of Montana, in
which is located the City of Bozeman. It operates by and through individuals elected by
its voters, and has duties and responsibilities as set forth in law.
8. Defendant State of Montana is a State Government that has multiple departments
all under the State Government. The State of Montana operates by and through
individuals elected by its voters, and has duties and responsibilities as set forth in law.
The State of Montana operates by and through its many state agencies, including but not
limited to the State of Montana Department of Environmental Quality (hereinafter DEQ),
an the State of Montana Department of Public Health and Human Services (hereinafter
DPHHS), but the State is responsible for all acts and omissions of the State Entities, and
is further responsible for the exercise of valid police powers which it has delegated to the
Counties and Cities in Montana, including but not limited to the regulation to the
development of subdivisions and the development of land.
9. The DEQ has regulatory over -site at Montana Landfills, including but not limited
to the Bozeman Landfill.
10. The City of Bozeman, Gallatin County, and the State of Montana will be referred
to collectively as the "Defendant Governmental Entities." The City of Bozeman may be
referred to "City" and Gallatin County maybe referred to as "County".
11. The City owns and operates the Bozeman Sanitary Landfill (`Bozeman Landfill'),
located on Story Mill Road in the City of Bozeman, Gallatin County, State of Montana.
12. The Bozeman Sanitary Landfill was started in 1969, accepting City and County
solid wastes.
13. The original cell of the Bozeman Landfill was unlined and operated until June
1997 when anew lined 15.3 acre cell was constructed.
14. The Defendants knew that the Bozeman Landfill produced hazardous substances
including vapors, chemicals, VOC's and other toxic chemicals that posed an
unreasonable risk of harm to BC III if it was approved.
15. The entire Bridger Creek subdivision, including but not limited to Bridger Creek
III, is located within the defendant City, Gallatin County, and the State of Montana.
16. The application process for the approval of Bridger Creek Phase III was
commenced in 1998 and the subdivision was not approved and the final plat was dated
December 10, 1999.
17. City Sewer and water were put into BC III in order to attempt to prevent the dis-
approval of BC III by any and all of the "Defendant Governmental Entities".
18. The City granted building permits before building could commence, and
certificates of occupancy were required before owners could take up residence in the
homes in BC III.
19. The Defendants Golf Course Partners, Inc., (hereinafter may be referred to as
"developers"), is a Montana Corporation authorized to do business in the State of
Montana, with its principal place of business listed as 9315 Cougar Drive, Bozeman,
Montana. and its President is listed as Rex B. Easton. They are the developers of Bridger
Creek 1, II, and III located in Bozeman, Gallatin County, Montana and was the developer
of Bridger Creek III when it was approved and the final plat recorded on April 17, 2000.
20. The Defendant developers applied for the creation of the BC III, and put pressure
on the "Defendant Governmental Entities" in getting the BC III subdivision approved.
21. Since a governmental entity can only operate through individuals. the Defendant
Governmental Entities are liable under the doctrine of respondent superior for all the acts
and omissions committed within the scope of their employment by the Defendant
Governmental Entities Actors ("Actors") including but not limited to the agencies,
entities, departments, agents, contractors, sub -contractors, hired companies, elected
personnel, department heads and employees, agency heads and employees, City
employees and elected personnel. Gallatin County employees and elected personnel, and
State Employees and elected personnel, who were, or are, directly or indirectly involved
in the acts and omissions set forth in the facts alleged in this Complaint, which acts and
omissions occurred within the scope and course of their employment.
22. The Defendant John Does are individuals or entities, yet unknown to Plaintiffs,
who have contributed to causing Plaintiffs' damages alleged herein. The Defendant
JOHN DOES I-V; JANE DOES VI -X; ABC CORPORATIONS XI -XV and XYZ
PARTNERSHIPS XVI-XXII, are believed to be individuals and/or entities who are
residents of or do business in City of Bozeman, Gallatin County, State of Montana, or
who have caused or contributed to events that underlie this lawsuit. The true names of
such defendants are unknown at this time and the Plaintiffs will, upon ascertaining the
true names of said defendants, seek leave of Court to amend this Complaint.
23. As a condition precedent required by the laws of the State of Montana, the County
of Gallatin, the City of Bozeman, and any other interconnected or interrelated
governmental entities, the Plaintiffs herein have filed the Required Notices of Claim
("NOC") to which the Defendant Governmental Entities have a duty, and are required to
fully and completely investigate in order to protect the City, County and State. The
Defendant governmental entities have failed to meet their required duties, have failed to
investigate, have failed to provide for the health and safety of the Plaintiffs, and have not
even looked into the status of the health and welfare, property rights, and the
constitutional and statutory rights of the Plaintiffs.
24. Said Defendants did not even respond to the Plaintiffs Notice of Claims, other
than the State of Montana who did acknowledge in writing that it received the NOC. The
Governmental Entities Defendants each simply let the 120 day response period run
without any meaningful response. They simply invited the Plaintiffs to file suit even
though the Plaintiffs attempted to get the matter resolved with Defendants.
25. The Defendant Developers, after creating Bridger Creek I, and Bridger Creek II,
took negligent, irresponsible, careless, reckless, acts and omissions that exposed the
Plaintiffs to an unreasonable risk of harm by creating the Bridger Creek III subdivision
next to and in the path of the Bozeman Landfill; by knowing the unreasonable risk
existed; by working with the Defendant Governmental Entities, who also knew the
unreasonable and unsafe conditions existed, to get the BC III subdivision approved,
licensed, and developed for profit; by wrongful, negligent, irresponsible, careless,
reckless acts and omissions that expanded the tax base of the Defendant governmental
entities, putting pressure on the governmental Defendants to wrongfully annex, approve,
permit, control and create a subdivision that was an unreasonable risk of harm to the
Plaintiffs and that unlawfully took, and wrongfully deprived the Plaintiffs of their home,
property, health and safety; that caused the Plaintiffs to directly and proximately suffer
the losses, the intentional and negligent emotional harm and suffering they endured, the
loss of property and enjoyment of life and the damages they suffered and incurred, as set
forth below.
26. The Defendant Governmental Entities and their actors attempted to claim the acts
and omissions did not occur on their watch; that they arrogantly, irresponsibility,
wrongfully and negligently did not even read the history and documents pertaining to the
creation, establishment, licensing, permitting, using, regulating, over -seeing, exercising
and delegating police powers over, the Bozeman Landfill; and then they negligently and
irresponsibility operated, monitored, maintained, controlled, continued and expanded, the
Bozeman Landfill; and even though they are legally accountable for all of the wrongful,
negligent and irresponsible acts and omissions of all of the past and present governmental
entities and their actors that are part of the proximate cause of the injuries of damages of
Plaintiffs, all of the said Defendants have failed to meet their duties as they relate to the
Plaintiffs, wrongfully denied their acts and omissions, and undertook a deliberately
misleading public relations campaign attempting to put the Plaintiffs in a false light, and
they continued to ignore their duty to adequately and faithfully perform their sworn
duties as elected officials and the duties they are paid to perform as actors for the
Defendant governmental entities that have caused and continue to cause injury and
damages to the Plaintiffs.
II. JURISDICTION AND VENUE
27. Defendants are located in the State of Montana, the capital of which is Helena,
Montana the location of the Montana Department of Environmental Equality; the other
Defendants are located in Gallatin County, Montana or in the City of Bozeman, Montana
that is located in Gallatin County, the State of Montana.
28. Most of the acts and omissions set forth in this Complaint took place in the City
of Bozeman, Gallatin Comity, State of Montana.
29. The Plaintiffs' injuries occurred in Bozeman, Gallatin County, State of Montana.
30. Jurisdiction is proper in this Court pursuant to Mont. Code Ann. § 3-5- 302.
31. Venue in Gallatin County is proper pursuant to Mont. Code Ann. §§ 25-2- 122,
25-2- 11 7, and 25-2-126.
III. FACTS COMMON TO ALL CAUSES OF ACTION
32. The Plaintiffs incorporate by reference all of the allegations set forth in
paragraphs 1 through 31 above.
32. The Constitution of the State of Montana, in the preamble states:
We the people of Montana grateful to God for the quiet beauty of our state, the
grandeur of our mountains, the vastness of our rolling plains, and desiring to
improve the quality of life, equality of opportunity and to secure the blessings of
liberty for this and future generations do ordain and establish this constitution.
33. The Constitution of Montana, in the ARTICLE lI DECLARATION OF RIGHTS,
sets forth in:
a. Section 1.: POPULAR SOVEREIGNTY. All political power is vested in and
derived from the people. All government of right originates with the people, is founded
upon their will only, and is instituted solely for the good of the whole;
b. Section 3. INALIENABLE RIGHTS. All persons are born free and have
certain inalienable rights. They include the right to a clean and healthful environment and
the rights of pursuing life's basic necessities, enjoying and defending their lives and
liberties, acquiring, possessing and protecting property, and seeking their safety, health
and happiness in all lawful ways. In enjoying these rights, all persons recognize
corresponding responsibilities.
34. Continuing in part the Montana Constitution then sets forth:
a. Section 4. INDIVIDUAL DIGNITY;
b. Section 6. FREEDOM OF ASSEMBLY;
C. Section 7. FREEDOM OF SPEECII, EXPRESSION, AND PRESS;
d. Section 8. RIGHT OF PARTICIPATION;
C. Section 9. RIGHT TO KNOW. No person shall be deprived of the right to
examine documents or to observe the deliberations of all public bodies or agencies of
state government and its subdivisions, except in cases in which the demand of individual
privacy clearly exceeds the merits of public disclosure;
f. Section 10. RIGHT OF PRIVACY. The right of individual privacy is
essential to the well-being of a free society and shall not be infringed without the
showing of a compelling state interest;
g. Section 16. THE ADMINISTRATION OF JUSTICE. Courts of justice
shall be open to every person, and speedy remedy afforded for every injury of person,
property, or character.......... Right and justice shall be administered without sale, denial,
or delay;
h. Section 17. DUE PROCESS OF LAW. No person shall be deprived of
life, liberty, or property without due process of law;
i. Section 18. STATE SUBJECT TO SUIT. The state, counties, cities,
towns, and all other local governmental entities shall have no immunity from suit for
injury to a person or property;
j. Section 27. IMPRISONMENT FOR DEBT. No person shall be
imprisoned for debt except in the manner provided by law, upon refusal to dcliver up his
estate for the benefit of his creditors, or in cases of tort, where there is strong presumption
of fraud;
k. Section 29. EMINENT DOMAIN. Private property shall not be taken or
damaged for public use without just compensation to the full extent of the loss having
been first made to or paid into court for the owner. In the event of litigation, just
compensation shall include necessary expenses of litigation to be awarded by the court
when the private property owner prevails;
1. Section 34. UNENUMERATED RIGHTS. The enumeration in this
constitution of certain rights shall not be construed to deny, impair, or disparage others
retained by the people.
35. Under the color of law and operating through various elected officials, various
divisions, departments, and agencies, the Governmental Entity Defendants, ie., the State
of Montana, the County of Gallatin, and the City of Bozeman, have the power to and
have passed laws, rules, regulations, administrative rules, policies and procedures,
ordnances, and directives that must be followed where applicable by each within their
jurisdiction as they pertain to the Bozeman Landfill, and which should be in accordance
with the above Constitutional Rights of the Plaintiffs, including but not limited to the
Constitution of the United States of America and the Constitution of the State of
Montana, including but not limited to those rights set forth above.
36. Each of the defendant governmental entities has a duty to run, administer, and
operate, within its various jurisdictions, and its various subdivisions, in the best interests
of the people, and in a manner to preserve the health and safety and welfare of the people
of Montana.
37. The Defendant State of Montana has a duty to oversee and regulate the Bozeman
Landfill and to exercise its police powers to enforce laws, rules, regulations,
administrative rules and procedures, directives, policies and procedures pertaining to the
Constitution, the Laws of the State, including the regulations of the State of Montana
Department of Environmental Quality (hereinafter DEQ), and the State of Montana
Department of Public Health and Human Services (hereinafter DPHHS), as they pertain
to or overlap with the oversight, operation, and regulation of the Bozeman Landfill
especially as they concern the health and safety and welfare of the people of Montana,
including, but not limited to the Plaintiffs.
38. The other defendant governmental entities named are Gallatin County and the
City of Bozeman and the same is true for their duties and responsibilities as they pertain
to the Bozeman Landfill or overlap with the oversight, operation, and regulation of the
Bozeman Landfill especially as they concern the health and safety and welfare of the
people of Montana, including. but not limited to the Plaintiffs.
39. When the Defendant Governmental Entities, by their acts and omissions, fail in
this duty to the plaintiffs they shall and must be held accountable to the plaintiffs for said
actions and said governmental entities shall have no immunity from suit for injury to a
person or property.
40. The Defendant Governmental Entities waived any immunity from suit that could
be in any way applicable because they choose to utilize taxpayer money to purchase
insurance with the intended purpose to have coverage for all of the acts and omissions set
forth in this complaint.
41. Specifically, the defendant City of Bozeman, the defendant County of Gallatin,
and the defendant State of Montana used the money of its taxpayers and paid it over to
various insurance carriers, and/or other entities called Interlocal Authorities, such as
Montana Municipal Interlocal Authority ("MMIA") - formally operating as Montana
Municipal Insurance Association; or insurance companies operating as excess carriers,
such as XL Group and/or XL Group Insurance Reinsurance ("XL"), and Indian Harbor
Insurance Company ("Indian Harbor"); all of whom who keep said insurance premiums
for their own use and operations, and profit sharing — even if some the Interlocal
Authorities attempt to claim not to make a profit.
42. The premiums are paid by the defendant city, by the defendant county, and by the
defendant state, and are never returned to the defendant governmental entities and are
utilized for the alleged protection of the Government Taxpayers in order to insure that if
the acts and omissions committed by the defendant Governmental Entities and actors as
set forth above, as they related to the Bozeman landfill, occur the Governmental
Taxpayers do not have to be held accountable for the acts and omissions of the
Governmental Actors who by their constitutional and statutory duties negligently, created
an unreasonable risk of harm to the plaintiffs by exposing them to a dangerous, and/or
inherently dangerous, instrumentally, the dangerous defective Bozeman landfill.
43. When the Defendant Governmental Entities breach this duty, including but not
limited to the duty of protection of the health and safety and welfare of the plaintiffs, and
in the process of breaching and not meeting their duties their acts and omissions expose
the Plaintiffs to unreasonable risk of harm, personal injury, economic loss, loss of
enjoyment and quality of life, and other resulting damages set forth below, they must be
held accountable and must be responsible for their acts and omissions.
44. The Defendant Governmental Entities had, and have, a duty to meet the standard
of reasonable care required to keep the Plaintiffs safe from the unreasonable risk of harm
caused by all of the defendants' acts and omissions as they relate to the Bozeman
Landfill.
45. In the 1970's, the federal government was given authority over landfills per
provisions as they relate to the Clean Water Act of 1970. These were updated in the
1980's including 1984, and by the 1990 EPA Act. The 1984 law said the Government
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"shall promulgate" final rules by March of 1988, but the agency did not propose the rules
until August 1988. The final rules were issued on September 11, 1991 under pressure
from a lawsuit filed by the Sierra Club, the Natural Resources Defense Council and
Friends of the Earth. The 1990 law, entitled the Environmental Protection Act
(hereinafter "EPA") of 1990, contained regulations regarding how a landfill should be
monitored and operated.
46. The Environmental Protection Act set forth a requirement that all landfills
monitor ground water, to detect leakage of lead, plastics or other chemicals, including
VOC's and other pollutants, into the water. Ground water is sampled by drilling wells.
Under the rules, the owners must monitor dump sites for 30 years after they cease
operation, to prevent water pollution and other health hazards.
47. In 1969, prior to the 1970 federal regulations going into place, the defendant City
of Bozeman broke ground on their landfill so they could attempt to claim grandfather
status and evade the EPA regulations. This type of action was in violation of their oath,
duty, and responsibility to the residents of the City, the County, and the State.
48. The Bozeman landfill was not properly licensed under the old regulations and in
1977 the Montana State Legislature passed the Solid Waste Management Act which dealt
with the classification and licensing of all refuse disposal areas in the State. The
classification dealt specifically with the soils type and hydrogeology of the site, in
essence, the physical capability of the site to prevent pollution problems.
49. The City of Bozeman sent in their application for a license and was turned down
because their application was incomplete on February 8, 1978. The Solid Waste
Management Bureau and the Environmental Sciences Division, the predecessors of the
present DEQ, advised they would have the State Soil Conservation Service evaluate the
landfill site and gave the Bozeman Landfill a one-year conditional license.
50. On October 1, 1979 the State Soil Conservation Service advised their preliminary
observations were that the potential for leachate production was high and the ground
water pollution potential was moderate to high and that additional testing had to be
conducted before a license could be issued.
51. The Bozeman City Engineer responded with a letter dated November 2, 1979
setting forth reasons why the State Soil Conservation Services were conservative and the
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water was okay. His basis was proven incorrect by the tests later conducted.
52. In a certified letter dated May 21, 1980 the Solid Waste Management Bureau
Environmental Sciences Department explained that the State has not been able to get the
required information from the City and that the state's requests for a groundwater
monitoring plan and supplemental soils and groundwater information had gone
unanswered. Because the landfill was operating without a license the City was given 30
days in which to provide the information or all future subdivision requests in the
Bozeman vicinity would be denied.
53. A report prepared by Hydrometrics from Helena Montana dated July 3, 1980 says
that M.K. Botz, P.E. Hydrologist -Engineer says about the landfill site "it is my opinion
that it is a suitable Class II site." He then goes on to state: "This site, however, does have
the potential for generating small quantities of leachate and must be carefully operated
and monitored to insure protection of water resources. I believe if recommendations in
this report are followed, the landfill site can be used and will not cause adverse impacts
on either surface water or groundwater." He makes these statements after admitting in
his report- "Groundwater conditions in the area are poorly known." In his report he
admits there are two streams "Chum Creek" and "Spring Creek" which incised the land
surface, there was annual precipitation between 20 and 25 inches, and that the principal
recharge source probably is from infiltration from streams and infiltration into
unconsolidated sediments along the mountain front east of the landfill site. His
inadequate tests of the sub -surface characteristics of site material were based upon two
test pits dug with a backhoe one 11 feet deep and the second 12 feet deep. In the first pit
he states that no wet soil or groundwater was present but says the material excavated
from the test well was moist. In the second pit he reports the pit was moist to very moist,
but not wet and no groundwater was encountered. He f ether reports that "On the west
end of the site, there are several small seeps near the landfill toe. Water was exiting the
landfill at this point with a flow of less than 1 gpm and water appeared to be a medium
strength leachate. On the south edge of the completed landfill, an estimated 1 to 2 gpm
of water was flowing from the interface between two horizontal layers of solid waste." ..,
"Water exiting the landfill appeared to be low to moderate strength leachate." .... "The
20 —acre completed landfill apparently is generating small quantities of leachate." This is
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clear evidence the Bozeman Landfill was negligently monitored and maintained and that
defendants were aware of the situation.
54. There is no evidence that the recommendations of the July 3, 1980 report were
ever followed. The water flows in the report are proven incorrect in later analysis with the
plume flowing south to southwest thus in a direct line from the landfill into and through
BC III. The leachate in the July 3, 1980 was never measured or tested; and the BC III
subdivision never existed in 1980.
55. On November 23, 1981 license number 196 was issued by the state to the City of
Bozeman for Group II and III waste only and site monitoring as per the October 2, 1981
Soil Conservation Report was required.
56. On May 31, 1984 it was reported that the "landfill was on 200 acres of which only
60 acres were usable due to the high groundwater on the remainder." "That the site had
adequate capacity for the next five to eight years." "That high groundwater at the landfill
is causing the need for monitoring wells, remedial action, a new site." It also reports that
the public "... doesn't complain about the landfill because it is surrounded by agricultural
land." It goes on and addresses the need for consolidation between the city and county
and states "City has passed a resolution to encourage the county to handle a landfill for
city garbage." The defendant city and county negligently were never able to get together
to resolve this joint landfill problem which both had an ongoing duty to resolve for the
protection of their electors.
57. On July 18,1986 the city received a copy of the plans for expansion of its landfill
from the area immediately west of the present site prepared by Damschen and Associates
in Helena. The plan calculates the then existing landfill would be full in two years
therefore the expanded landfill would start to receive waste in 1988 with an expected
useful life, depending upon which plan the city adopted, to end in either 1996 or in 2000.
58. In June of 1992 Damschen & Associates, Inc., issued a final report on a "Solid
Waste Analysis" prepared for the City of Bozeman & Gallatin County that summarized
the alternatives, made recommendations, gave their comments, reported on the feedback
from the city and county on November 13, 1991 and again on May 22, 1992. On
November 13, 1991 the city agreed with the Consultant's recommendations that were for
"the city and county to begin investigations to locate a new county landfill site. In the
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interim period it was agreed by the local officials that the city should continue to operate
the existing landfill site until such time as a new county landfill was located and the "time
was right' to begin to use it." On May 22, 1992 the city indicted that "the City's existing
site is limited to approximately 20 years." "That they should continue to use the existing
landfill site and coordinate the process of siting a new landfill with the county when the
"time is right."
59. On March 8, 1996 the DEQ received a Closure and Post-closure Plan prepared by
Damschen & Associates, Inc., on behalf of the Bozeman Landfill reporting that in the
Spring of 1996 the City will move into the 15.3 acre expansion area and " the landfill has
an expected remaining life of approximately nine and a half years. During the post-
closure life of the facility, the City will retain ownership and access will be restricted to
the site. However, portions of the closed areas may be leased for dryland farming
operations to neighboring farmers." "The existing waste area will reach capacity within
the next six months." They then reported: "The expansion area has an estimated capacity
of nine years." So in September 1996 the City planned to move to the last 15.3 acres of
useable landfill with an expected life of 9 years — until 2005.
60. The new 15.3 acre cell was reported to have a composite liner, with only a 10 year
warranty, and a leachate collection system. The old cell was unlined.
61. A January 21, 1999 letter from the chief financial officer regarding the RCRA
Subtitle D, therein the city stated: "The City of Bozeman has no (2) RCRA hazardous
waste management facilities;" The city reported post closure costs for 30 year monitoring
cost of $1,920,000 and an estimated closure cost for the 15.3 acre cell of $933,000 for a
total of $2,853,000. The above was the October 22, 1998 projected costs, if the landfill
was closed in 1999. This misleading attempted financial justification for not closing the
landfill in 1999 totally disregards health and safety since in 1999 there were known
hazards and there were no homes in BC III.
62. A June 9, 1999 letter from the DEQ discussed the May 18, 1999 inspection of the
Bozeman Landfill which said, in part: "...yet the program remains concerned with some
ground water VOC/Fe contaminant levels at most of your boundary monitoring wells.
Given the immediate proximity of your facility to some drinking water supply wells, we
have begun to discuss possible next steps in delineating the plume and helping you to
14
fully remediate your ground water contaminants. I remind you that your corrective
measures assessment period expires in December of this year (1999). The purpose of
carrying out inspections is to protect human health and the environment by ensuring
compliance with State rules and regulations."
63. During the above time period the City was considering the permitting of the BC
III subdivision and it is revealing that the DEQ did not mention this issue when they were
concerned about the immediate proximity of the facility to some drinking water supply
wells.
64. The city incorrectly made the decision not to close the landfill in 1999 for
economic reasons. The economic factors do not rise to the constitutional and legal
mandate that the City evaluation must be guided by, the need to protect human health and
the environment.
65. The City did not comply with the State rules and regulations, and did not meet the
corrective measures. The DEQ inspection found that the ongoing corrective measure
assessment VOC plume appears to be spreading, and the LFG extraction has not
impacted ground water VOC plume as expected, and that the corrective measure
assessment was ongoing. The City misrepresented the use of the surrounding land, and
there are no known records that show they disclosed the fact they were involved with the
BC III subdivision to the DEQ, especially when the DEQ reported to the City on
February 1, 2000 that the December 1999 parameter measured at concentrations for
tetrachloroethene and vinyl chloride groundwater protection standards for December
1999.
66. During this period of time the application of the defendant developer for the
approval of Bridger Creek III was granted, approved, and the final plat recorded on April
17, 2000.
67. November 2, 2000 the City staff presented cost evaluations to the City Manager
and City Commissioners on the options of expanding the landfill north of Churn Creek,
or on installing a transfer station, both with recycling facility options. At the same time
the city continued discussions and work with the County regarding a proposed county
wide solid waste district. A memo dated August 20, 2002 summarized the Transfer
Station Site Selection Process Summary.
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68. In 2000, the city gave a 10 -day to 2 -week notice about a meeting to expand the
landfill. The people fought with the city about the expansion until 2007 when the landfill
was closed. The state told the city if they expanded they would have to relicense and
everyone knew the landfill would not be able to be licensed under the current EPA
regulations.
69. The county and state informed the city on multiple occasions that the landfill was
toxic and out of compliance with the EPA standards.
70. The city has been informed on multiple occasions that the well/groundwater was
contaminated. The water was about 50x the EPA allowable levels of contamination.
71. When any issues were brought up from the past the general response would either
be "that was not on my watch" or "I never saw that document" or some other various
excuse without addressing the issue. There were no monitoring or regulations put into
place by the city regarding the waste management system, including how it would be
managed.
72. The defendants did as they pleased; they did not even attempt to take steps to
protect the health and safety of the people; they contended they would have the problem
solved, by burning methane, an expensive and unproductive venture, and the problem
would be solved in time, ten to 15 years; this experiment was costly to the taxpayers but
provided a divergence to the defendants who negligently ignored the problem and over
protest kept the Landfill open past its scheduled closing time further exposing the
Plaintiffs to additional harm.
73. There was some resistance by the Defendant State of Montana to permitting the
Bridger Creek 111 subdivision due to the water levels and the VOCs which were flowing
through and escaping from the landfill.
74. The City argued with the DEQ, in part because they were in the process of
responding to a Corrective Measure from the Defendant Montana DEQ, and also in part
due to alleged threats of legal action by the Defendant Developer for a "taking action" if
the Bridger Creek III subdivision was not approved and permitted.
75. Divergence was again needed and Defendant City negotiated a two-year
conditional plan to extract the mcthanc gas, contending that it would also burn off the
VOC's even though there was limited or no scientific support for the City's position.
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76. Defendant City of Bozeman permitted the sub -division of Bridger Creek III and
negligently made the decision to intentionally expose the Plaintiffs to a substantial risk of
harm by approving the process of developing the subdivision in the path of what the
Defendant Governmental Entities knew, or should have known, was the un -stoppable
path of the V OC's.
77. The approval of the BC III subdivision led to the present location of
approximately 26 homes, or vacant lots, that are presently without any saleable value, and
have become traps for the VOC's which have infected the subdivision and are causing
harm to the Plaintiffs.
78. The approval of the subdivision (BC III) in 2000 was a direct causation of the
harm to the Plaintiffs.
79. The defendants, who had a duty to protect the Plaintiffs from harm, ignored their
duty, instead they created an unreasonable risk of harm, permitted the exposure of the
Plaintiffs, failed to remedy the known danger, created another distraction, borrowed
money on the taxpayers credit to experiment with another unproven, untested plan, which
has not even been properly approved, and in the process negligently ignore their sworn
duty and cause further harm, injury, and damages to the plaintiffs.
80. These acts and omissions are negligent errors and omissions of the defendants.
81. The Plaintiffs having already suffered economic, physical and emotional injuries
they know they will suffer further economic injuries, further physical injuries, further
emotional injuries, further loss of enjoyment of life, and a further diminishment of their
quality of life, and therefore are entitled to their past, present, and future damages as
guaranteed by the constitution including but not limited to their inalienable rights and the
administration of justice.
82. In the summer of 2013, more than twenty years after the issues with migrating
chemicals became known to the City, the City alerted the residents of BC III of the
dangers to their health and that of their families, which the defendants had not disclosed
and took improper steps to keep from the plaintiffs until in a public meeting the
defendants disclosed that their homes acted as catchments for the VOCs off -gassing from
the poisoned groundwater and that elevated unsafe VOC levels had been identified in test
wells placed near the Plaintiffs' homes.
17
83. The defendants acts and omissions continued after the 2013 disclosures and they
committed errors and omissions that caused further damage and emotional pain and
suffering.
84. The plume of toxic chemicals continues to flow onto Plaintiffs' properties daily.
Each day that the City fails to stem the flow of toxic chemicals and onto Plaintiffs'
property Plaintiffs suffer a new injury. And, because the City has yet to undertake efforts
to stop the flow of toxic chemicals, Plaintiffs will continue to be injured in the future.
85. The cocktail of toxic and neurotoxin chemicals flowing onto Plaintiffs' properties
are adverse to Plaintiffs' health, have caused and likely will cause further exposure to the
health and safety of the plaintiffs' and can cause short and long-term illness, including
but not limited to cancer.
86. In addition to posing a direct threat to Plaintiffs' health and wellbeing, the flow of
toxic and neurotoxin chemicals has and will forever dramatically reduce the value and
marketability of Plaintiffs' properties. Realtors refuse to list the poisoned properties and
Plaintiffs will be required to disclose the dangers to buyers should they be able to find
someone willing to buy their residences.
87. As a direct and proximate result of the acts and omissions of the defendants and
the acts and omissions of the Actors for whom the defendants are liable under
Respondent Superior, the Plaintiffs were injured and suffered the damages set forth
below.
IV. CLAIMS FOR RELIEF
COUNT ONE — NEGLIGENCE
AGAINST ALL DEFENDANTS
88. The Plaintiffs incorporate by reference all of the allegations set forth in
paragraphs 1 through 87 above.
89. The Defendant Governmental Entities together with the Actors for whom they are
liable, along with the Defendant Developer, had a duty of reasonable care to the Plaintiffs,
as set forth in this Complaint, including but not limited to the Constitutional and
Statutory duties and responsibilities alleged in this complaint.
90. The Defendants breached their duty of care to the Plaintiffs.
91. That as a direct and proximate result of the breach of duties the Plaintiffs suffered
injures and resulting damages for which the Defendants are liable.
fE
92. The Defendants breached their duties of care to the Plaintiffs by their acts and
omissions as set forth above including but not limited to:
a. failing to abide by their duties and responsibilities as elected officials and
actors, as defined above;
b. failing to perform to the oath of office they took dealing with their election
and their employment responsibilities;
C. failing to follow the Constitution of the United States, the State of
Montana, the statutes of the United States and the State of Montana, the ordinances of the
City of Bozeman, and all laws, rules, regulations, policies, procedures, and all applicable
standards of employment;
I failing to create a safe, licensed, and approved landfill in 1969 and instead
improperly starting a landfill for the purpose of avoiding regulations that would have
required a safe healthy landfill..
C. failing to follow applicable laws, rules, regulations, standards, and
procedures which would have timely made the Bozeman landfill a safe healthy operation,
especially after 1978 the law required all landfills be licensed, and operated as per
applicable laws;
failing to properly and safely locate the Bozeman Landfill on land that was
qualified for a landfill rather than the location where the landfill was placed (on unstable,
wet, low water table land. and with streams that they knew or should have known would
prevent cleats water), especially when the defendants knew, or should have known, that of
the 200 acres purchased for the landfill only 60 acres was potentially useable for that
purpose, and that the 60 acres was questionable, as has been proven, and that the land had
been plotted by the City of Bozeman and Gallatin County, as residential land;
g. failing to properly create, operate, supervise, oversee, control, monitor,
inspect, approve, regulate, land planning, and licensing the Bozeman landfill as required,
including but not limited to proper planning, design, engineering, construction,
installation, operation, mitigation, and compliance with regulatory corrective measures;
h. failing to communicate, inform, cooperate, and make proper disclosures to
each other as governing bodies and to each of the Defendant Governmental Entities as
required;
WI
i. failure to perform their governmental functions as required;
j. failure to hold open meetings; to provide truthful and honest information,
to deny the Plaintiffs' right to know and to be informed, to treat Plaintiffs' as persons
who have a right to be provided straight forward facts rather than filtered information
intended to dilute the truth and hide what is really going on behind the governmental gate
of secrecy;
k, failure to properly conduct required public hearings and meeting wherein
critical decisions are to be made, which by statute require public input based on
disclosure of governmental information which must be shared with the people who have
a right to know the facts so they can adequately participate in the public hearing;
1. failure to communicate with the Plaintiffs and the public who has a right
to know, including but not limited to the fact the defendants had a specific duty under
Montana land use and environmental statutes, including County and City land use laws to
protect the health and safety of landowners near the Bozeman Landfill, including BC III,
and all governmental defendants had a specific duty under Montana land use and
environmental statutes to protect the health, safety and property rights of landowners near
the landfill that applied for land use, building permits and/or certificates of occupancy;
in. failure to conduct themselves as public officials and employees, rather
than as "spin doctors" attempting to be advocates against the Plaintiffs and not giving the
public credit for having an intelligence;
n. failure to properly investigate the NOC's filed be the Plaintiffs' as a
condition precedent to this complaint;
o. failure to identify and treat the NOC's for what they were, taxpayers
claims the governmental defendants were required to investigate and determine if they
had factual merit, not just instruments to be sent to insurance carriers so a couple of year
dispute between the governmental defendants and the carriers could be waged, resulting
in an excuse for not addressing the Plaintiffs critical issues of public health and safety
which must be reviewed in detail so the Plaintiffs can be given an answer as to their
safety and welfare;
P. failure to address the NOC's on their merits, when instead the defendants
used them as a tool to paint the Plaintiffs in a false light, as individuals who were trying
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to get money from the taxpayers;
q. failure to review all of the facts around the Bozeman Landfill, including
the actual documents, writings, commission records, county records, state records,
subdivision records, monitoring records, etc., so corrective measures can be taken for the
protection of the public, as opposed to unproven actions taken in the past, 1988, where a
path was developed that let to millions of dollars of taxpayer money being spent for
failed experiments, 1995 — 2000, the establishment of BC III subdivision knowing it
would cause a unreasonable risk of harm to the Plaintiffs, and any others in BC III;
r. failure to take proper steps to protect the safety health and welfare of the
public in the defendant governmental entities acts and omission from 2000 to 2013
wherein they: misrepresented the Bozeman Landfill as being safe; where they tried to
expand the landfill; where they refused to act on viable alternatives, such as the Logan
landfill (in part due to political squabbles between the governmental entities); when they
permitted Defendant Developers to put in the BC III subdivision (a clearly negligent
governmental action); placing Plaintiffs and other inhabitants of said subdivision in
irreplaceable harms ways subject to an unreasonable risk of harm (URH); delay in
making the unreasonable risk to Plaintiffs known, the failure to warn; spin doctoring how
the URH was made know;
S. failure to create a licensed and approved landfill, ensure that the Landfill
was planned, designed, engineered, constructed, installed, and monitored in such a way
as to prevent toxic chemicals from escaping the Landfill, forming a toxic plume that
migrated onto Plaintiffs' land;
t. failing to properly mitigate the toxic chemicals that were escaping the
Landfill;
U. continuing to operate the Landfill without proper mitigation methods to
prevent the escape of toxic chemicals;
V. defendants made and continue to make misrepresentations, both direct and
implied, that the purchasing of lots and the building of homes in BC III is safe, and that
the role played by the Defendants, including the Developing Defendant, in the approval
and permitting of the BC III subdivision and the approval of building permits, proves
there are unreasonable risks of harm to the Plaintiffs, including that there is no danger
21
from the toxic plume of VOC's and other toxic chemicals and neurotoxins migrating
from the Bozeman Landfill;
W. failing to follow statutory and regulatory duty to prevent the migration of
toxic chemicals from the Landfill when Defendants had knowledge that residences were
being constructed in the path of the toxic plume;
X. approving Plaintiffs' building permits and certificates of occupancy in
spite of the Defendants knowledge that Plaintiffs' homes were being constructed directly
atop a cocktail of toxic chemicals flowing from the Landfill;
Y. failing to warn residents and potential residents and to be forthright with
them about of the dangers posed by the toxic plume migrating from the Landfill; and
Z. at the time the governmental defendants became aware of the fact that
VOCs were found and, and on or before they undertook the specific duty to prevent the
escape of said V OC's and other toxic chemicals and neurotoxins from the Bozeman
Landfill that did occur, and having under taken said duty had the responsibility to
perform this duty in compliance with all existing standards of care.
93. As a direct and proximate result of all of the Defendants negligent acts and
omissions, and the acts and omissions of their actors for whom they are liable the
Plaintiffs have sustained injuries and damages as set forth below.
V. CLAIMS FOR RELIEF
COUNT TWO — NEGLIGENCE PER SE
AGAINST ALL DEFENDANTS
94. The Plaintiffs incorporate by reference all of the allegations set forth in
paragraphs 1 to 93 above.
95. The Defendants are further liable to the Plaintiffs under negligence per se since
the negligence of all of the Defendants resulted, where applicable, from a violation of law
as set forth above in this complaint including, but not limited to, the Montana Hazardous
Waste Act, § 75-10-401 el seq., Mont. Code Ann., and the Montana Water Quality Act, §
75-5-101 et seq. Mont. Code Ann.
96. Plaintiffs are adversely affected citizens of Montana and are members of the
group that the laws were designed to protect.
97. The harm suffered by Plaintiffs as a result of the Defendants activities is the kind
of harm that the laws were designed to prevent.
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98. As a direct and proximate result of all of the Defendants negligent acts and
omissions, and the acts and omissions of their actors for whom they are liable the
Plaintiffs have sustained injuries and damages as set forth below.
VI. CLAIMS FOR RELIEF
COUNT THREE — TRESPASS
AGAINST ALL DEFENDANTS
99. The Plaintiffs incorporate by reference all of the allegations set forth in
paragraphs 1 to 98 above.
100. At all times relevant to this Complaint Plaintiffs were in possession of property
located within BC Ill.
101. The Defendants willful and wanton, careless, and negligent acts caused a direct,
physical invasion of Plaintiffs' properties that has interfered with Plaintiffs' exclusive use,
enjoyment and protection of their properties, and their right to a clean and healthful
environment.
102. The Defendants have not stopped the plume of VOC's and other toxic chemicals
and neurotoxins that continues to flow onto Plaintiffs' properties.
101. The Defendants continued and daily trespasses, since its commencement until the
present day, are a direct and proximate cause of injuries and damages to Plaintiffs as
herein alleged, and each day that the Defendants allow the VOC's and other toxic
chemicals and neurotoxins in the plume to flow onto Plaintiffs' properties, Plaintiffs
suffer another injury through no fault of their own.
104. As a direct and proximate result of all of the Defendants acts and omissions, and
the acts and omissions of their actors for whom they are liable the Plaintiffs have
sustained injuries and damages as set forth below.
VII. CLAIMS FOR RELIEF
COUNT FOUR - PRIVATE NUISANCE
AGAINST ALL DEFENDANTS
105. The Plaintiffs incorporate by reference all of the allegations set forth in
paragraphs 1 to 105 above.
106. The Plaintiffs are property owners in BC III and are members of the public who
reside, work, conduct their personal and business affairs, and have proprietary interests in
certain real and personal property in and around the BC Ill subdivision that is affected by
23
the Defendants nuisance and Plaintiffs also have rights incidental to that property,
including the right to the exclusive use and quiet enjoyment of the property.
107. The Defendants negligent acts and omissions violate § 27-30-101, Mont. Code
Ann., et seq., and constitute a common law nuisance that has resulted in contamination
and special, actual, imminent, substantial, and impending harm to Plaintiffs.
108. The Defendants have a duty not to create a nuisance incidental to the Plaittifs
property.
109. The Defendants have breached their duty and have created a nuisance that is
injurious to Plaintiffs' health, safety, comfort, and right to enjoy a clean and healthful
environment; that is offensive to the senses; that unreasonably interferes with their use
and enjoyment of their property; and that forever diminishes their real property values.
110. As a direct and proximate result of the nuisance created by the Defendants
unlawful acts and omissions including but not limited to the toxic contamination that
resulted therefrom, Plaintiffs have suffered and continue to suffer damages and detriment
as herein alleged.
111. As a direct and proximate result of all of the Defendants acts and omissions, and
the acts and omissions of their actors for whom they are liable the Plaintiffs have
sustained injuries and damages as set forth below.
VIII. CLAIMS FOR RELIEF
COUNT FIVE - WRONGFUL OCCUPATION OF
LAND AGAINST ALL DEFENDANTS
112. The Plaintiffs incorporate by reference all of the allegations set forth in
paragraphs 1 to 111 above.
113. The V OC's and other toxic chemicals and neurotoxins in the toxic plume that was
created by and is permitted to flow onto each of the Plaintiffs' properties and properties
adjacent to, and in the near vicinity of Plaintiffs properties was created by the Defendants
and is permitted to exist by the Defendants and flows from the Bozeman Landfill and
continues to flow onto Plaintiffs' properties every day.
114. The City has made no substantial efforts to adequately stem the flow of VOC's
and other toxic chemicals and neurotoxins in the toxic plume that presently, and have
since their creation, constituted a clear and present danger to the Plaintiffs.
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115. Through these unlawful VOC's and other toxic chemicals and neurotoxins in the
toxic plume the Defendants have wrongfully and negligently occupied, and continue to
wrongfully occupy Plaintiffs' real property in violation of Montana common law and
Mont. Code Ann. § 27-1-3 18.
116. As a direct and proximate result of all of the Defendants continuing acts and
oinissions, and the continuing acts and omissions of their actors for whom they are liable
the Plaintiffs have sustained injuries and damages as set forth below.
IX. CLAIMS FOR RELIEF
COUNT SIX - NEGLIGENT MISREPRESENTATION
AGAINST ALL DEFENDANTS
117. The Plaintiffs incorporate by reference all of the allegations set forth in
paragraphs 1 to 116 above.
118. All of the Defendants were, or should have been aware of toxic chemicals leaking
from the Landfill at least as early as 1988.
119. The Governmental Defendants having been made aware of said toxic chemicals
per studies, documents, and/or other forms of information disclosed to these said
Defendants in the ordinary course of business as owners of the Bozeman Landfill and as
approvers of subdivisions including but not limited to BC III.
120. Notwithstanding that knowledge, the Governmental Defendants have
misrepresented the existence of the VOC's and other toxic chemicals and neurotoxins in
the toxic plume known by said Defendants, and took no steps to notify the landowners
directly threatened by the VOC's and other toxic chemicals and neurotoxins in the toxic
plume.
121. In contrast, the Governmental Defendants explicitly and implicitly represented
that the land was fit for habitation and approved and platted the Phase III neighborhood.
122. The Developing Defendants having been made aware of said toxic chemicals per
studies, documents, and/or other forms of information disclosed to them as developers of
13C III in their ordinary course of business.
123. Notwithstanding that knowledge, the Developing Defendants have misrepresented
the existence of the VOC's and other toxic chemicals and neurotoxins in the toxic plume
known by, or which should have been known by said Developing Defendants, and said
Defendants took no steps to notify the Plaintiffs who were directly threatened by the
25
VOC's and other toxic chemicals and neurotoxins in the toxic plume. In contrast, the
Developing Defendants explicitly and implicitly represented that the land was fit for
habitation and approved and platted the BC III neighborhood, got it to be an approved
subdivision, in part by putting pressure on the other Defendants, and made a profit on BC
III.
124. The representations that land was fit for habitation were untrue.
125. The representation was made for financial gain and with the intent to induce
reliance on the part of the potential residents of BC III, including the Plaintiffs herein.
1.26. Plaintiffs were unaware of the falsity of the representation and reasonably relied
on the Developing Defendants to apply for and obtain a subdivision approval for BC III,
and that the Governmental Defendants never would have granted the BC III subdivision
with the existing condition and that they would have denied and/or withhold approval for
a subdivision that was threatened with toxic chemicals before it was even platted.
127. Plaintiffs' reasonably relied on the Governmental Defendants to disallow the
creation and planning of BC III when it was apparent to the City that a plume of toxic
chemicals threatened the anticipated residents of BC III.
128. Notwithstanding the Governmental Defendants knowledge of the VOC's and
other toxic chemicals and neurotoxins in the toxic plume flowing from the Landfill and
the dangers it posed to those building directly below and adjacent to it; the Governmental
Defendants approved Plaintiffs' building permits and certificates of occupancy, again
representing the land was fit for habitation.
129. The representation that land was fit for habitat ion was untrue.
130. The representation was made with the intent to induce reliance on the part of
Plaintiffs.
131. Plaintiffs were unaware the representations were false and reasonably relied on
the Governmental Defendants to withhold approval for building permits and certificates
of occupancy that allowed them to build directly atop a toxic plume owned by the City of
Bozeman and known to the Governmental Defendants.
132. Through their actions and approvals, the Defendants negligently misrepresented
to Plaintiffs that they were building and living in a clean and healthful environment that
posed no unreasonable risk to Plaintiffs' health.
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133. The Defendants made these negligent and/or fraudulent misrepresentations
despite their knowledge that Plaintiffs' health was at all times threatened by the VOC's
and other toxic chemicals and neurotoxins ht the toxic plume flowing from Bozeman
Landfill.
134. As a direct and proximate result of the Defendants negligent and/or fraudulent
misrepresentations, Plaintiffs have suffered and will continue to suffer damages as set
forth below including but not limited to: unreasonable interference with the use and
enjoyment of their properly; diminishment of the value of their property; physical
injuries; mental injuries; loss of their homes; loss of enjoyment of life: Loss of happiness;
loss of privacy; and frustration, inconvenience, trouble, and vexation.
X. CLAIMS FOR RELIEF
COUNT SEVEN - INVERSE CONDEMNATION, TAKING, EMINENT DOMAIN,
INAPPROPRIATE GOVENTMENTAL ACTIONS AND VIOLATION
CONSTITUTIONAL RIGHTS AGAINST GOVERNMENTAL DEFENDANTS
135. The Plaintiffs incorporate by reference all of the allegations set forth in
paragraphs 1 to 134 above.
136. The Governmental Defendants negligent release of the VOC's and other toxic
chemicals and neurotoxins in the toxic plume flowing from Bozeman Landfill has
migrated onto Plaintiffs' property and constitutes inverse condemnation, eminent domain,
inappropriate governmental action, and a taking that violates Plaintiffs Constitutional
Rights, and it has permanently reduced Plaintiffs' property values, and subjects the
Plaintiffs to unreasonable risk of harm, and is the proximate cause of the injury to
Plaintiffs and the damages they have suffered.
t37. The Plaintiffs have suffered the damages set forth caused by all of the acts and
omissions set forth in this Complaint and their loss has been caused by the Governmental
Defendants acts and omissions, including all that are stated above, including but not
Limited to those that constitute inverse condemnation, eminent domain, inappropriate
governmental action, and a taking that violates Plaintiffs Constitutional Rights.
138. The above causes of action: inverse condemnation, eminent domain, inappropriate
governmental action, and a taking that violates Plaintiffs Constitutional Rights, are the
result of the acts and omissions of the Governmental Defendants, as set forth above.
139. The taking the property of the Plaintiffs and reducing of the property values so the
27
homes are condemned and basically do not have any value, are akin to inverse
condemnation: they cannot be sold; the realtors will not list the homes because it is not
economically feasible to expend advertising fees, selling expenses, and other costs when
the real estate market on other sellable homes is so progressive in Gallatin County,
Montana; they cannot or should not be inhabited; the Plaintiffs live in their homes mostly
because they have no choice; the governmental Defendants cannot prove that Plaintiffs
homes are inhabitable and if it is safe to live in the homes: when asked if it is safe the
Governmental Defendants say: "that is up to the Plaintiffs" even though it is a
govenunental function to make this decision; government has no problem in making a
decision that trailers are not inhabitable, especially when the government Defendant want
to use the land for a park.
140. The taking of the property I akin to eminent domain since it is the fault of the
government that the Plaintiffs was taken, it was due their inappropriate governmental
actions, their making values judgments outside the boundaries of governmental action
and making value decisions not properly considered or based on fact; at least in eminent
domain due process requires that they set forth the value of the properties and offer the
fair market value as damages and it is then up to the property owner to accept the offer or
be afforded the due process rights of contesting the value; here the government
defendants, without due process are taking the Plaintiffs property and they should be held
accountable.
141. The Government Defendants destruction of the Plaintiffs property and the injuries
caused thereby is in violation of the Plaintiffs Montana Constitutional Right s as set forth
about and also includes but is not limited to:
a. Plaintiffs have inalienable rights under the Montana Constitution that
"include the right to a clean and healthful environment and the rights of pursuing life' s
basic necessities, enjoying and defending their lives and liberties, acquiring, possessing
and protecting property and seeking their safety, health and happiness in all lawful ways."
Mont. Const. Art. 11, Sec. 3;
b. The preamble of the Constitution;
C. Section 1. Popular Sovereignty;
d. Section 4. Individual Dignity;
KI
e. Section 9. Right to Know;
f. Section 16. Administration of Justice;
g. Section 17. Due Process;
k. Section 29, Eminent Domain;
Section 34. Unenumerated Rights.
142. The Governmental Defendants, negligent, careless, reckless, Nvillful and wanton
acts and omissions poisoned Plaintiffs' properties, injure and damaged the Plaintiffs, and
the Governmental Defendants failure to wam and negligent and/or fraudulent
misrepresentations about the danger posed by the Landfill and the unreasonable risk of
Kann to which the Governmental Defendants exposed the Plaintiffs, and prevented
Plaintiffs' ability to affirmatively protect themselves and their family members further
violates the Plaintiffs Constitutional Rights and changes the whole basic concept of the
government being for the people and by the people.
143. As a direct and proximate result of the above acts and omissions of the
Governmental Defendants and the Constitutional violations of Plaintiffs' right to a clean
and healthful environment, Plaintiffs have suffered and will continue to suffer damages
as set forth below including but not limited to: unreasonable interference with the use and
enjoyment of their properly; diminishment of the value of their property; physical
injuries: mental injuries; loss of their homes; loss of enjoyment of life; loss of happiness;
loss of privacy., and frustration, inconvenience, trouble, and vexation.
XI. CLAIMS FOR RELIEF RIGHTS
COUNT EIGHT- DAMAGES
AGAINST ALL DEFENDANTS
WHEREFORE, Plaintiff prays for judgment on all counts of his Complaint
against the Defendants and each of them, for the full amount of money damages that will
reasonably compensate the Plaintiff for all damages proven to be a result of the acts and
omissions of the Defendants, including but not limited to the following:
144. The Plaintiffs incorporate by reference all of the allegations set forth in
paragraphs 1 to 143 above.
145. As a direct and proximate result of the acts and omissions set forth above against
all of the Defendants, Plaintiffs have suffered severe personal injuries including but not
limited to cancer, other very serious illnesses, body dysfunctions, system dysfunctions,
29
serious emotional suffering, emotional pain and suffering, emotional distress, that has
resulted in special and general damages including, set forth below in the prayer for relief.
V. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs request the Court grant the following relief:
Determine that the Defendant is liable for compensatory damages in an amount
that is fair and reasonable to each Plaintiff for injuries including, but not limited to:
a. The cost of stopping the toxic plume and remediating and restoring
Plaintiffs' properties to their pre -contaminated state;
b. Diminishment of property values, including permanent stigma
devaluation;
C. Loss of peace of mind, inconvenience, trouble, vexation, anger, frustration,
and fear pertaining to Defendant's contamination of Plaintiffs' properties;
d. The cost to monitor Plaintiffs 'properties in order to detect and prevent
latent damage caused by Defendants' toxic contamination:.
C. The cost to monitor Plaintiffs' health and that of their family members to
detect and proactively treat latent disease arising from exposure to the cocktail of toxic
chemicals beneath their homes.
2. Award Plaintiffs the costs of litigation and attorney fees pursuant to Article 11,
Section 29 of the Montana Constitution; the private attorney general doctrine; and as
otherwise provided by law;
3. Award Plaintiffs damages based on Defendant's trespass, wrongful occupation,
and inverse condemnation of Plaintiffs' land;
4. Award Plaintiffs prejudgment interest; and
Award any other relief to which Plaintiffs may be entitled at law or in equity.
ICU
Dated: December 31,
Edward R- Imv o nr'
Attorneys for Plaintiff
736 South Third Street West
Missoula, MT 59801-2514
Telephone: (406) 728-6868
Facsimile: (406) 728-7722
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DEMAND FOR TRIAL BY JURY
Pursuant to Mont. R. Civ. P. 38, Plaintiffs demand that a jury try all of the above
issues and allegations.
736 South Third Street West
Missoula, MT 59801-2514
Telephone: (406) 728-6868
Facsimile: (406) 728-7722
32