                                                                                               06/23/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                                           Case Number: OP 16-0555


                                         OP 16-0555
                                                                           FILED
 ATLANTIC RICHFIELD COMPANY,                                                JUN 2 3 2020
                                                                        Bowen Greenwood
                                                                      Clerk of Supreme Court
              Petitioner,                                                State of Montana



       v.
                                                                     ORDER
 MONTANA SECOND JUDICIAL DISTRICT
 COURT,SILVER BOW COUNTY,THE HON.
 KATHERINE M. BIDEGARAY,

              Respondent,


       On May 22, 2020, the Suprerne Court of the United States issued its remittitur
advising of its judgment in the aforesaid cause which affirmed, in part, and reversed, in
part, the decision ofthis Court entered December 29, 2017. This Court's decision, as well
as that of the Supreme Court, addressed only landowners' claim for restoration damages.
Landowners' claims for other types of compensatory damages under Montana law,
including loss of use and enjoyment of property, diminution in value, incidental and
consequential damages, annoyance and discomfort, and any relief other than restoration
damages, remain unaffected by our grant of supervisory control and the Supreme Court's
decision regarding the writ.
         Respecting landowners' claim for restoration damages, the Supreme Court
concluded    the   claim    had    not   been     brought in    federal    court   under      the
Comprehensive Environmental         Response,       Compensation,    and     Liability      Act,
42 U.S.C. §§ 9601-9675,(CERCLA)and that, as a result, landowners were not precluded
from bringing their state claim for restoration damages under Montana law in state court.
Atl. Richfield Co. v. Christian,     U.S.       , 140 S. Ct. 1335 (2020). The Supreme Court
concluded, however, that landowners were Potentially Responsible Parties (PRPs) under
CERCLA and needed approval by the Environmental Protection Agency (EPA) before
undertaking any remedial action at a location designated as within a Superfund site.
Atl. Richfield Co., 140 S. Ct. at 1352. The Supreme Court explained that "no potentially
responsible party may undertake any remedial action at the facility unless such remedial
action has been authorized by the [EPA]." Atl. Ricqield Co., 140 S. Ct. at 1352
(quoting 42 U.S.C. § 9622(e)(6)). The Suprerne Court held that "[t]he damages issue
before the Court is whether Atlantic Richfield is also liable for the landowners' own
remediation beyond that required under the Act.- The Supreme Court answered "yes," so
long as the landowners "first obtain EPA approval for the remedial work they seek to carry
out." Atl. Richfield Co., 140 S. Ct. at 1355. Any further remedial action for which
Atlantic Richfield rnay be liable must first be authorized by the EPA as "such action cannot
be taken in the absence of EPA approval." Atl. Richfield Co., 140 S. Ct. at 1357. The
Supreme Court concluded that the "approval process, if pursued, could ameliorate any
conflict between the landowners' restoration plan and EPA's Superfund cleanup, just as
Congress envisioned." Atl. Richfield Co., 140 S. Ct. at 1357. In the absence of EPA
approval of the current restoration plan, the Supreme Court declined to entertain Atlantic
Richfield's claim that CERCLA otherwise preempts the plan.
         Accordingly, this Court remands this matter to the District Court for further
proceedings on landowners' claim for restoration damages consistent with this order and
the decision of the Supreme Court.
         The Clerk is directed to provide copies of this order to all parties and the presiding
judge.
         DATED this e---1 day of June, 2020.
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