HELENA - Montana will seek an appeal of a federal judge's ruling that the state can't force Atlantic Richfield Co. to pay for pollution damage that occurred near Anaconda prior to 1980, a top attorney for the state says.
"Clearly this is not the last word on this issue," Chris Tweeten, chief civil counsel for the state Department of Justice, said Wednesday.
Tweeten said state lawyers intend to draft an appeal to the 9th U.S. Circuit Court of Appeals, asking it to reconsider this week's decision by U.S. District Judge Sam Haddon.
However, Tweeten said the precise nature of the appeal is still being decided.
In his ruling, Haddon said that while the federal Superfund law can force companies to clean up mine waste dating back a century or more, the law states companies can't be forced to pay for restoration of environmental damages that occurred prior to the law's passage in 1980.
Montana's attorney general said the ruling could undermine future claims for millions of dollars in damages caused by decades of mining and smelting in the Clark Fork River Basin.
Tweeten noted that Haddon's ruling mentioned that other federal courts have interpreted the law differently on whether companies should pay damages for pollution that initially occurred before 1980.
"There is great debate within the Superfund community on what this may mean," he said.
Haddon's ruling concerns about 11,000 acres of land near Anaconda that the state said was damaged by years of smelting emissions. The areas are Mount Haggin south of Anaconda, the old smelter hill, and Stucky Ridge north of town. The state sought $47.5 million in damages.
But the ruling also could affect unresolved portions of the state's long-standing action against Arco, which bought the old Anaconda Co. properties in Butte and Anaconda in the late 1970s.
The state has outstanding damage claims for harm caused to the Clark Fork River and to the aquifer under portions of Butte.
Haddon's ruling does not affect a 1999 settlement between Arco and the state, when the company agreed to pay $260 million for mining and smelting pollution in the Clark Fork basin.