Browning, Kaleczyc, Berry and Hoven, P.C. (BKBH) is located in Montana's capital city of Helena, Montana. The attorneys in our environmental law practice group are among the most experienced environmental lawyers in the State of Montana.

In addition to being geographically located near the center of the state, as the State Capitol city, Helena is the location of the main offices for the State of Montana's natural resource regulatory agencies -- the Department of Environmental Quality and the Department of Natural Resources and Conservation. Additionally, the United States Environmental Protection Agency and the U.S. Fish and Wildlife Service have a significant presence with an office in Helena.

All major natural resource and environmental issues are handled through one or both of the state and federal offices in Helena. BKBH probably has the largest environmental and natural resources practice in the State with over 30% of its business being in the natural resource and environmental field.

BKBH's environmental attorney have a regional practice representing clients in cities throughout the State of Montana, including Whitefish, Kalispell, Missoula, Hamilton, Butte, Dillon, Great Falls, Cut Bank, Bozeman, Livingston, Billings, Havre, Lewistown, Glasgow, Miles City and many others. As a result, BKBH has not only worked with the state and federal agencies but with public interest groups and local governments throughout the state. The regional nature of BKBH's environmental practice has found us representing clients in other states including Idaho, Nevada, and Wyoming.

Because environmental matters often present multiple and complex problems, we recognize the value of using a multi-disciplinary approach involving the firm's administrative, corporate, governmental and technical expertise to address our clients' environmental and natural resource interests. We have extensive relations with firms that provide technical expertise in a wide range of subject matters, including remedial investigations, feasibility statements, risk assessments, and toxicology reports.

Our firm has successfully represented national and local clients on compliance and permitting issues under state and federal clean water acts, clean air acts, and solid and hazardous waste acts. In addition, we have successfully negotiated cleanup levels and methods of divisibility and allocation for state and federal superfund sites. Moreover, BKBH is qualified to provide a broad range of natural resource law services to those involved in the use, mining or development of state and federal lands. In order to be successful, it is imperative that we maintain good relationships with the regulatory agencies while pursuing cost effective solutions to our clients' environmental and natural resource problems. We often offer unique and innovative solutions to difficult regulatory issues including the drafting and lobbying of legislative modifications to existing laws and the petitioning of agencies for rule making changes.

While BKBH strives to assist its clients through negotiation, mediation, arbitration and other alternative dispute resolution methods, it is sometimes necessary to litigate issues. BKBH is particularly well suited to provide a full range of environmental and natural resource litigation services as it has practiced in administrative forums at the state and federal level, state district court, Montana Supreme Court, District Court for the District of Montana, Court of Appeals for the Ninth Circuit, Court of Federal Claims and the Court of Appeals for the Federal Circuit. BKBH attorneys have appeared in most, if not all, venues in Montana as well as many federal forums outside of Montana.

Environmental Permitting and Compliance
BKBH is experienced in assisting clients with complex regulatory issues, and business and real estate transactions complicated by environmental compliance and contamination problems. The firm has successfully guided clients through permitting and compliance projects under the Clean Air Act, Clean Water Act, Resource Conservation Recovery Act (RCRA), Federal Land Policy and Management Act (FLPMA), Endangered Species Act, and the Mineral Leasing Act (MLA). In addition, BKBH has been involved with projects subject to the Montana Environmental Policy Act (MEPA), National Environmental Policy Act (NEPA), the Hard Rock Mining Act, the Strip and Underground Mine Reclamation Act, and the Major Facility Siting Act.

BKBH is uniquely qualified to provide a wide array of services to meet all environmental permitting and compliance needs.

Superfund
In all likelihood, BKBH has more experience in dealing with state and federal superfund laws than any other law firm in Montana. The firm has represented clients at more than fifty sites which involve diesel fuel and petroleum products, wood treating substances, mine tailings, and landfills. The firm represents a variety of clients from major corporations at large sites such as the Butte-Silver Bow/Clark Fork National Superfund Site, which is the largest superfund site in the nation, to small individual land owners whose property has become contaminated by the actions of others. Of the nine federal superfund sites in Montana, BKBH represents clients at three of them. While many of the sites are of lesser size, the firm has represented a client involved in a site where the remediation of which is in excess of $40,000,000. We have extensive experience in negotiating consent decrees/settlements and voluntary cleanups with agencies and other potentially responsible parties (PRPs), in the drafting of administrative orders on consent, and in the settlement of lawsuits filed by state and federal agencies and other PRPs. The firm has experience in the use of institutional controls including controlled ground water areas, zoning, restrictive covenants, and environmental easements. When clients' problems are not capable of being resolved through the standard process, BKBH has used modification to the State's environmental laws and regulations to successfully address a client's problem.

Environmental Law & Real Estate
BKBH attorneys are experienced in handling the complexities of Natural Resources, Property, and Real Estate law and litigation. Our firm has represented clients in a broad range of natural resource matters, including endangered species, forestry/timber, grazing, irrigation, mining claims, mineral development, oil and gas, water, wildlife, and property matters including federal lands, public lands, state lands, and private lands, communication sites, condemnation, easements, land exchanges, property boundary and ownership disputes, rights-of-way, sales and survey discrepancies. We have represented clients with natural resource or property issues involving the Montana Department of Environmental Quality, Montana Department of Livestock, Montana Department of Natural Resources and Conservation, Montana Department of Fish, Wildlife and Parks, Army Corp of Engineers, Bureau of Land Management, Bureau of Reclamation, Fish and Wildlife Service, Forest Service and National Park Service. BKBH attorneys have handled a broad array of real property/real estate transactions including commercial, residential, agricultural, and conservation easements. With our extensive natural resource and property capabilities, BKBH can provide experienced counsel for all environmental and natural resource matters affecting past, present and future Montana property owners.

Environmental Administrative Proceedings
Situations may arise in which existing, amended, or new regulations adversely impact a business, association or its members and their various operations. BKBH provides a broad range of administrative law services, including drafting of rules and comments, testifying at hearings and working one-on-one with state and federal regulators to resolve problems. In addition, it may be necessary to participate in contested administrative matters before state or federal agencies. BKBH has extensive experience representing clients in all kinds of administrative proceedings. We regularly participate in contested case proceedings and are experienced in implementing and coordinating administrative litigation strategies.

Water Law & The Environment
BKBH attorneys are uniquely qualified to provide representation and advice to individuals, businesses, irrigation districts and other local governments on all substantive areas of water law, including activities to acquire, perfect, and defend surface and ground water rights. In addition, BKBH attorneys represent clients in various water-related regulatory issues with State and Federal agencies concerning stream bed alteration permits, 404 and 310 permits and efforts to protect water quality and various species of wildlife in Montana's lakes, rivers and streams. BKBH has assisted clients in transferring or leasing water rights within real estate transfers or water right transactions.

BKBH attorneys are also qualified to represent our clients on various water issues relating to land use, eminent domain and inverse condemnation, public agency law, including local agency elections, water and sewer district matters, and issues that require environmental evaluation pursuant to MEPA and NEPA.

Firm members have represented clients in front of such entities as the Montana Water Court, the Department of Natural Resources and Conservation, the Department of Environmental Quality and state district courts. In addition, BKBH's governmental affairs group routinely explore legislative solutions as an alternative to meet our clients' needs.

Underground Storage Tanks
Numerous environmental issues affect those individuals and businesses who own and/or operate underground storage tanks (UST). Such issues include compliance with federal and state UST regulations, leaking underground storage tank (LUST) sites, and reimbursement of cleanup costs. Our environmental law attorneys provide counsel for complying with all aspects of UST regulations and for initiating or defending cost recovery actions associated with LUST sites. BKBH is also experienced in assisting clients in obtaining reimbursement for cleanup costs associated with USTs from Montana's Petroleum Tank Release Compensation Board, both through representation during the application process, and through the contested case/judicial process if the application is initially denied.

Environment & Land Use
Montana is experiencing exponential population growth in the western and central portion of the state. For example, between 1990 and 1997, the number of subdivisions reviewed under the Sanitation in Subdivisions Act increased by 184 percent. Additionally, the number of housing construction permits issued state wide between 1990 and 1996 more than doubled, representing an increase of 119 percent. Land use conflicts arise between the inherently different interests of private citizens, business entities, and regulatory bodies. BKBH attorneys are experienced in representing private landowners, developers, and industrial companies in all aspects of permitting, development, and litigation of land use matters. BKBH offers representation in all facets of the Montana Subdivision and Platting Act and derivative city and county subdivision regulation, zoning matters, non-conforming land use, eminent domain/takings, conservation easements, and complex state and federal land ownership transfers.

Environment & Agricultural Law
BKBH attorneys are qualified to assist our farm and ranch clients in a broad range of legal and regulatory issues. In addition to protecting and initiating water rights, BKBH attorneys have experience with numerous water quality issues, some of which include total maximum daily loads (TMDLs) and non-point source pollution concerns associated with the use of fertilizers, the application of insecticides, and concentrated animal feeding operations. Moreover, BKBH helps clients understand federal commodity programs, farm credit and loan structuring, agriculture liens, and secured transactions under the Uniform Commercial Code. Land use programs such as CRP, the preservation of agricultural land through conservation easements and estate planning, developing best management and stewardship activities, real property access issues, and negotiating federal and state land leases are also important aspects of the firm's agriculture-related practice. Furthermore, BKBH has experience in representing agriculture interests before the Montana Legislature. BKBH is a member of both the Montana Stockgrowers Association and the Montana Farm Bureau Federation.

Environment & Legislative Solutions
BKBH has one of the most extensive governmental affairs practices in Montana. Our attorneys represent a wide variety of clients before the Montana State Legislature and the United States Congress. During Montana's legislative sessions, BKBH regularly commits at least five attorneys to the full time practice of assisting clients through the legislative process. Among our many state legislative successes, we drafted and successfully lobbied the passage of the Montana Voluntary Cleanup and Redevelopment Act, the Controlled Allocation and Liability Act, numerous amendments to the Comprehensive Environmental Cleanup and Responsibility Act (CECRA), the Hard Rock Mining Act, the Strip and Underground Mine Reclamation Act, the Open Cut Mining Act, Montana's Clean Water Act, and the Montana Petroleum Tank Release and Compensation Act. We have also been successful in advocating or opposing the passage of environmental and natural resource legislation before Congress.

Environment & Litigation
BKBH is particularly well-suited to provide a full range of environmental and natural resources litigation services to its business and individual clients. We regularly practice in administrative forums and the state and federal trial and appellate courts. BKBH attorneys have successfully represented clients in complex multiparty environmental and natural resource litigation in a cost-effective manner. We have represented clients in superfund actions against state and federal agencies, as well as private PRPs. Our attorneys have litigated several superfund cases where the potential exposure exceeded $5 million. In each matter the clients' litigation goals have been more than accomplished.

For additional information on the litigation practice at BKBH,

Representative Cases for BKBH Natural Resources & Environment Group

Trinity Railcar Repair, Inc. v. CMC Heartland Partners, L.P. (2004) - Catherine Laughner is the lead BKBH counsel for Trinity in this case. Trinity sought and was granted a preliminary injunction against the Defendants preventing them from disposing of assets, rendering them judgment proof and unable to indemnify Trinity for clean-up costs associated with diesel fuel contamination at the Miles City Railyard. Instead, the Court ordered that any proceeds obtained from the sale or dissolution of Defendant’s assets, up to $2.5 million, must be held in a reserve fund with the County Clerk of Court in trust for payment of clean up costs at the railyard once a determination has been made regarding the share of reclamation expenses Defendants may be responsible to bear. Cost recovery litigation in the case is continuing.

US v. Rhodia, Inc. (2003) - Cathy Laughner was lead BKBH counsel defending Rhodia, Inc. in this criminal matter brought by the U.S. Government. Charges included improper management of hazardous wastes in violation of the Resource Conservation and Recovery Act, violations of the Clean Water Act, misrepresentations to the state and federal government, and conspiracy with respect to the charges. Rhodia was able to successfully avoid indictment in this matter.

Aguiar v. The Burlington Northern and Santa Fe Railway Co. (2003) - Leo Ward and Mark Etchart were the lead Montana attorneys on this case brought by over 160 residents of Havre, Montana against The Burlington Northern and Santa Fe Railway Company (“BNSF”). Plaintiff’s claimed negligence, public and private nuisance, trespass, strict liability for abnormally dangerous activity, negligent infliction of emotional distress, violations of Montana’s Constitution and constructive fraud. The case was settled just days before trial.

The Burlington Northern and Santa Fe Railway Co. v. Kalispell Pole and Timber Co. (2001) - Mark Etchart represented BNSF in a suit brought against Kalispell Pole and Timber Company (“KPT”) under CERCLA (Comprehensive Environmental Response, Compensation and Liability Act) and CECRA (Comprehensive Environmental Cleanup and Responsibility Act) for recovery of and contribution of response costs incurred by BNSF in connection with the release and threatened release of hazardous substances at and from facilities within the KPT site in Kalispell, Montana. BNSF won summary judgment and secured a favorable allocation of liability for remediation costs.

Hunt v. Ribi ImmunoChem Research, Inc. (1995); US v. Ribi (1998) - Dan Hoven represented Ribi ImmunoChem in a toxic tort action brought by area landowners. Representation also includes the investigation and remediation of the Bitterroot Valley Sanitary landfill under state and federal environmental laws. The toxic tort case was won on summary judgment, while the cost recovery case has been settled.

Park County v. The Burlington Northern Sante Fe Railway Company (1999) - BKBH was local counsel in this significant environmental trespass case. Plaintiff claimed BNSF dumped perchloromethane sludge for years in the Plaintiff's sanitary landfill: Plaintiff sought $32.7 million in compensatory damages and approximately $200 million in punitive damages. After an eight day jury trial, the jury awarded the Plaintiff $14 million in compensatory damages but voted 9 - 3 in favor of BNSF on the punitive damages claim.

National Wildlife Federation v. Burlington Northern Railroad Company. (1993), 23 F.3d 1508 (9th Cir. 1995) - BKBH was counsel for Burlington Northern in an ESA (Endangered Species Act) takings case involving grizzly bears near Glacier National Park. The case was won on summary judgment in the United States District Court and affirmed on appeal in the Ninth Circuit Court of Appeals.

Burlington Northern Railroad Company v. Falls Chemicals, Inc. (1995) - BKBH represented Burlington Northern in a CERCLA and RCRA cost-recovery action for the cleanup of an abandoned pesticide formulating plant. After discovery, the case was settled and Burlington Northern recovered a substantial portion of its clean up costs.

United States v. Atlantic Richfield Company, Burlington Northern Railroad Company, Torger Oaas. Atlantic Richfield Company v. Burlington Northern Railroad Company, Torger Oaas, and Montana Resources, Inc. (1995) - BKBH was counsel for Burlington Northern in a $50 million Superfund cost recovery case involved cutting-edge issues of joint and several liability under § 107 of CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) and highly technical groundwater contamination issues. After extensive discovery, including discovery of experts conducting groundwater computer modeling, a favorable settlement for Burlington Northern's involvement at the Superfund site was obtained.

Montana Power Company v. Burlington Northern Railroad Company. BKBH represented Burlington Northern in this action wherein Montana Power sought to condemn portions of Burlington Northern's right-of-way for the installation of a high-voltage power line. We successfully defeated the utility's motion for a preliminary order of condemnation after an evidentiary hearing, and the case was then subsequently settled with the grant of an easement with numerous conditions protecting the interests of Burlington Northern Railroad.

In Re: Missoula White Pine Sash's Claim for Compensation. BKBH represented Crane Co. in securing reimbursement for cleanup costs associated with this facility. We successfully obtained a settlement of approximately $500,000 from the Montana Petroleum Tank Release Compensation Board after presenting complex evidence and testimony at an administrative hearing.

In the Matter of the Application for a Variance by Columbia Falls Aluminum Company. BKBH represented Columbia Falls Aluminum Company in a contested case proceeding before the Montana Board of Environmental Review for a variance from certain air quality rules during scheduled maintenance activities. Variance granted.

Indian Law
This area, in particular, has demonstrated the firm's ability to bring its diverse resources to problem solving for clients. At various times, the firm has been called upon to lobby both the Congress and the Montana legislature on Indian and water issues, has represented client interests before the U.S. Department of Interior and its constituent bureaus, as well as before the Montana Reserved Water Rights Compact Commission, and has handled appeals through the Bureau of Indian Affairs and the Interior Board of Indian Appeals, as well as appearing on behalf of its clients in the federal courts.

Public Land Law
The federal government owns more than 1 million square miles of land in the United States, and most of those public lands are in western states like Montana. Our attorneys are experienced in dealing with many of the federal and state law governing those public lands, including the rules and doctrines governing disposition, allocation, and protection of this land and the natural resources contained within those lands. We routinely deal with legal questions affected by such matters as the history of public law, the constitutional authority to regulate federal public lands, and the relevant legal authorities enacted by Congress and the States to do the same. Our public land attorneys have dealt with a wide range of legal controversies with regard to such critical resources as water, minerals, timber, wildlife, and recreation, and the preservation of each and all of these resources. Most recently, our attorneys have been closely involved in path breaking federal legislation endowing large public charitable trusts from the sales proceeds of public lands on two of Montana's largest federally created reservoirs.

Environmental and Natural Resource Litigation
Numerous environmental issues affect BKBH's clients. BKBH is particularly well-suited to provide a full range of environmental law and litigation services, including administrative forums, and the coordination and implementation of trial and/or appellate strategy. BKBH has been retained to represent a wide-variety of clients from cities and towns to nationwide companies in matters ranging from simple administrative procedures to complex, multiparty litigation brought under CERCLA, CECRA, and ESA.

BKBH's environmental attorneys provide counsel for complying with all aspects of the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act (RCRA)and in initiating or defending cost recovery actions under the state and federal superfund laws. Our property attorneys have experience dealing with a broad variety of lease and acquisition matters, easement and eminent domain disputes, and related litigation.

Representative Environmental Litigation Cases:

Trinity Railcar Repair, Inc. v. CMC Heartland Partners, L.P. (2004) - Catherine Laughner is the lead BKBH counsel for Trinity in this case. Trinity sought and was granted a preliminary injunction against the Defendants preventing them from disposing of assets, rendering them judgment proof and unable to indemnify Trinity for clean-up costs associated with diesel fuel contamination at the Miles City Railyard. Instead, the Court ordered that any proceeds obtained from the sale or dissolution of Defendant’s assets, up to $2.5 million, must be held in a reserve fund with the County Clerk of Court in trust for payment of clean up costs at the railyard once a determination has been made regarding the share of reclamation expenses Defendants may be responsible to bear. Cost recovery litigation in the case is continuing.

US v. Rhodia, Inc. (2003) - Cathy Laughner was lead BKBH counsel defending Rhodia, Inc. in this criminal matter brought by the U.S. Government. Charges included improper management of hazardous wastes in violation of the Resource Conservation and Recovery Act, violations of the Clean Water Act, misrepresentations to the state and federal government, and conspiracy with respect to the charges. Rhodia was able to successfully avoid indictment in this matter.

Aguiar v. The Burlington Northern and Santa Fe Railway Co. (2003) -  Leo Ward and Mark Etchart were the lead Montana attorneys on this case brought by over 160 residents of Havre, Montana against The Burlington Northern and Santa Fe Railway Company (“BNSF”). Plaintiff’s claimed negligence, public and private nuisance, trespass, strict liability for abnormally dangerous activity, negligent infliction of emotional distress, violations of Montana’s Constitution and constructive fraud. The case was settled just days before trial.

The Burlington Northern and Santa Fe Railway Co. v. Kalispell Pole and Timber Co. (2001) -  Mark Etchart represented BNSF in a suit brought against Kalispell Pole and Timber Company (“KPT”) under CERCLA (Comprehensive Environmental Response, Compensation and Liability Act) and CECRA (Comprehensive Environmental Cleanup and Responsibility Act) for recovery of and contribution of response costs incurred by BNSF in connection with the release and threatened release of hazardous substances at and from facilities within the KPT site in Kalispell, Montana. BNSF won summary judgment and secured a favorable allocation of liability for remediation costs.

Burlington Northern Railroad Company v. Falls Chemical, Inc. (1995) -  Catherine Laughner and Mark Etchart represented Burlington Northern Railroad Company (“BNRR”) in this case involving a CERCLA and RCRA cost-recovery action for the cleanup of an abandoned pesticide formulating plant. After discovery, the case was settled and BNRR recovered a substantial portion of its cleanup costs.

Hunt v. Ribi ImmunoChem Research, Inc. (1995); US v. Ribi (1998) -  Dan Hoven represented Ribi ImmunoChem in a toxic tort action brought by area landowners. Representation also includes the investigation and remediation of the Bitterroot Valley Sanitary landfill under state and federal environmental laws. The toxic tort case was won on summary judgment, while the cost recovery case has been settled.

United States v. Atlantic Richfield Company, Burlington Northern Railroad Company, Torger Oaas, Atlantic Richfield Company v. Burlington Northern Railroad Company, Torger Oaas, and Montana Resources, Inc. (1995) - BKBH was counsel for Burlington Northern in a $50 million Superfund cost recovery case involved cutting-edge issues of joint and several liability under § 107 of CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) and highly technical groundwater contamination issues. After extensive discovery, including discovery of experts conducting groundwater computer modeling, a favorable settlement for Burlington Northern's involvement at the Superfund site was obtained.

Park County v. The Burlington Northern Sante Fe Railway Company. (1999) -  BKBH was local counsel in this significant environmental trespass case. Plaintiff claimed BNSF dumped perchloromethane sludge for years in the Plaintiff's sanitary landfill: Plaintiff sought $32.7 million in compensatory damages and approximately $200 million in punitive damages. After an eight day jury trial, the jury awarded the Plaintiff $14 million in compensatory damages but voted 9 - 3 in favor of BNSF on the punitive damages claim.

National Wildlife Federation v. Burlington Northern Railroad Company. (1993), 23 F.3d 1508 (9th Cir. 1995) -  BKBH was counsel for Burlington Northern in an ESA (Endangered Species Act) takings case involving grizzly bears near Glacier National Park. The case was won on summary judgment in the United States District Court and affirmed on appeal in the Ninth Circuit Court of Appeals.

State of Montana, ex rel. the Montana Department of Environmental Quality v. Ribi Immunochem Research, Inc., Bitterroot Valley Sanitary Landfill, Inc., and Charles Mann - This case was recently filed by the State of Montana which seeks remediation costs and penalties under the CECRA (Comprehensive Environmental Cleanup and Responsibility Act). The case is ongoing.

Burlington Northern Railroad Company v. Falls Chemicals, Inc. (1995) -  BKBH represented Burlington Northern in a CERCLA and RCRA cost-recovery action for the cleanup of an abandoned pesticide formulating plant. After discovery, the case was settled and Burlington Northern recovered a substantial portion of its clean up costs.

To set up an appointment with one of BKBH's environmental attorneys, please contact either Leo Berry, Cathy Laughner, Mark Etchart, Steve Wade, or John Tietz in our Helena office (406-443-6820).