From his seat on a sun-worn wicker couch, Shaun Hoolahan reaches down to the corgi panting at his side and tells her to roll over. Bessie flips belly-up, exposing a pink, golf ball-sized lump on her chest.
“Tumors,” he said, pointing out the spot on the dog’s front left paw where a cancerous toe was amputated. “She’s got them all over her body.”
For years, grass wouldn’t grow on some parts of his two-acre property, and Bessie used to spend lots of time lying in the dirt in his yard, Hoolahan said. “I could fertilize, water, and just nothing would grow there,” he said. “The more I started to dig into it, the more concern I had.”
More than a century ago, farmers on the same Montana land noticed their horses getting ulcers where their noses brushed the ground to feed. They said their sheep mysteriously became ill, only to recover when they moved farther away from the copper smelter their community was built around. A federal appeals court agreed with one of the state’s biggest companies that the farmers were only exaggerating.
Today, Hoolahan’s yard and many of the former farmers’ properties are part of the largest Superfund complex in the country. The Environmental Protection Agency and Atlantic Richfield Co. have been working to clean it up for more than 35 years. Arco says it’s spent $450 million on cleanup efforts, and the EPA “has made substantial clean-up progress at the Anaconda Smelter Superfund site over the nearly four decades of work,” Chris Wardell, a spokesman for the agency, said in an email.
New landowners, though, say the soil is still poisoned from decades of the old smelter stack belching lead, arsenic, and cadmium, leaving layers of toxic waste, invisible to the naked eye, coating their yards and historic homes. They’re carrying on the legal battle that began a century ago—and this time, the law has been on their side.
Leaning on an article written into the state constitution at the height of the Earth Day movement, Montana’s highest court in 2017 allowed the landowners to take their claims to trial. Atlantic Richfield quickly asked the U.S. Supreme Court to intervene. Landowners will make their case in oral arguments in December, an opportunity their forebears were denied 108 years ago.
If the court decides the landowners can dictate their own cleanup and bill Atlantic Richfield for the costs, “it almost neuters Superfund,” said Shoshana Schiller, partner at Manko, Gold, Katcher & Fox LLP in Bala Cynwyd, Pa.