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The Montana Supreme Court unanimously ruled this week that Livingston landowners can move forward with a federal lawsuit accusing a railway of polluting their property, quashing the railroad’s argument that the statute of limitations had expired.

The ruling is the first time justices have decided that lawsuit filing deadlines do not apply when contamination remains present. The ruling paves the way for other property owners to sue years, even decades, after an alleged polluter has stopped contaminating water, soil or air as long as a judge or jury determines it can be cleaned.

Dave and Jeannie Burley filed the lawsuit in Billings federal court in 2007, claiming Burlington Northern and Santa Fe Railway Co. contaminated their groundwater, soil and air with toxic chemicals.

The railroad operated in the center of Livingston for nearly a century until it closed in 1987.

During that time, the railway released toxic solvents into the area surrounding the yard, Justice Brian Morris wrote in the court’s opinion.

“These toxic pollutants migrated off the yard into the groundwater below, onto the soil and into the air above the neighboring properties,” he wrote.

According to Montana Department of Environmental Quality records, the yard was deemed a state Superfund site with affected groundwater possibly stretching as far as two miles from the rail yard, including into the Yellowstone River.

The railway intentionally dumped large amounts of toxic, carcinogenic solvents for years, contaminating the groundwater and soil of nearby properties, Bozeman attorney Mike Cok wrote in the complaint. The railroad also chose not to contain its hazardous waste on its own property.

The pollution has hurt property values and poses health risks for residents living near the rail yard, Cok said.

“And there are people who have been living there for generations and don’t want to sell,” he said. “They want the railroad to clean up their mess.”

Several lawsuits have been filed against the railway in Park County and federal courts, including a pending case filed by the city of Livingston.

U.S. Magistrate Judge Carolyn Ostby ruled in 2010 that the statute of limitations in the Burley case had expired in the 1990s because the property owners knew of the pollution but didn’t file a claim until 2007.

Cok and Billings attorneys Cliff Edwards and Triel Culver appealed that decision early last year.

Edwards said he’s glad a jury will be asked to determine cleanup costs instead of the railroad company.

The Supreme Court ruling “gets us back in the ball game,” he said, “but the finish line is still quite a distance away.”

A call to the railroad company’s attorneys was not returned Thursday.

Jodi Hausen can be reached at jhausen@dailychronicle.com or 582-2630.

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