No. 90-505 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

JAMES PAUL SANDERS and KATHY SANDERS, 

Plaintiffs and Appellants, 

SCRATCH GRAVEL LANDFILL DISTRICT 

and DOES ONE THROUGH TEN. 

Defendants and Respondents. 

CLERK OF EjUPRENlE COUR? 

STATE OF MBNYAPdA 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Carl A. Hatch; Small, Hatch, Doubek & Pyfer, Helena, 

Montana 

For Respondents: 

Mike McGrath, County Attorney, Lewis and Clark 

County, Helena, Montana 

Submitted on Briefs: May 30, 1991 

Decided: July 15, 1991 

Filed: 
Justice John Conway Harrison delivered the Opinion of the Court. 

James and Kathy Sanders appeal from an order of the District 

Court of the First Judicial District, Lewis and Clark County, 

Montana, granting the motion of Scratch Gravel Landfill District 

to dismiss their suit. The District Court held that Scratch Gravel 

Landfill District was immune from suit. We reverse and remand to 

the District Court. 

The issue is whether the District Court erred in determining 

that, as an agent of a legislative body, Scratch Gravel Landfill 

District was immune from suit. 

James and Kathy Sanders bought a home in Western Hills 

Subdivision, a few miles north of Helena, Montana, in 1987. In 

1989 the couple learned that the aquifer from which they obtained 

their water had become contaminated with toxic chemicals which they 

alleged were leached from a nearby dump owned and operated by 

Scratch Gravel Landfill District. The Landfill District claimed 

that the chemicals came from a different source, namely from 

cleaning solvents dumped for years by laundry and dry cleaning 

establishments into a mine shaft above the property owned by the 

Landfill District. 

Because of the contaminated water supply, the Sanders 

eventually moved from their home, even though they were unable to 

sell it. The Sanders filed suit against the Landfill District 

seeking to recover damages resulting from contamination of their 

water supply. 

The Sanders learned of the water contamination when the 
Landfill District called a meeting on January 24, 1989, to inform 

local homeowners that the aquifer from which they obtained their 

water had become contaminated with toxic chemicals. The Landfill 

District offered to provide bottled water for drinking and cooking 

to those who were using contaminated water. The contaminated water 

was said to be safe for bathing, washing dishes, and watering lawns 

and gardens. 

The Landfill District held other meetings to keep property 

owners informed and eventually offered a plan to the affected 

landowners. In a written agreement signed by the Sanders and other 

homeowners, the Landfill District agreed to provide a new water 

source and delivery system. In exchange, the homeowners agreed to 

release the Landfill District from I1liability for inconvenience, 

mental anguish and temporary loss of property values resulting from 

alleged degradation of ground water." The agreement allowed the 

homeowners to retain all "rights to seek compensation for any longterm or permanent loss of property value . . ." except for 

llpotential personal injury claims for damages due to alleged 

contamination of Homeowners1 ground water." 

Before the Landfill District could implement a new water 

source and system, the Sanders decided in January 1990 to move from 

their home claiming they wanted to escape further health risks. 

According to the Sanders, realtors refused to list their home until 

the new water supply was in operation. A realtor eventually agreed 

to list their house with the understanding that full disclosure of 

the toxic water problems be provided to potential buyers. When the 

Sanders were unable to sell their house, they filed suit against 
the Landfill District and "all unknown defendants Does One through 

Ten" seeking damages for permanent or long-term loss of value to 

the property. 

The issue is whether the District Court erred in determining 

that Scratch Gravel Landfill District was immune from suit pursuant 

to 5 2-9-111, MCA. 

The Landfill District argues that it is immune from suit 

according to our holding in Burgess v. Lewis and Clark City-County 

Board of Health (Mont. 1990), 796 P.2d 1079, 47 St.Rep. 1619. In 

Burqess, we held that an employee of the Scratch Gravel Landfill 

District could not sue the Lewis and Clark City-County Board of 

Health, which serves as the board of directors of the Landfill 

District. The Board, as an agent of a legislative body, the Lewis 

and Clark County Board of Commissioners, was immune from suit under 

S 2-9-ll(2) MCA, extending governmental immunity to a 

I1legislative body or a member, officer, or agent thereof.I1 

For the past number of years this Court has been divided on 

the question of legislative immunity granted by 2-9-111, MCA, 

enacted in 1977. Case after case has brought dissent. See Love 

v. Harlem Irrigation District (Mont. 1990), 802 P.2d 611, 47 

St.Rep. 2190; Koch v. Yellowstone County (1990), 243 Mont. 447, 795 

P. 2d 454 (Judge Larry Moran, specially concurring) ; Eccleston v. 

Third Judicial District Court (1989), 240 Mont. 44, 783 P.2d 363; 

and Peterson v. Great Falls School District No. 1 and A (1989), 237 

Mont. 376, 773 P.2d 316. 

District Court Judge Larry W. Moran, sitting with the Court 
in Koch, noted in a concurring opinion: 

How beneficial it would be to see (or to write) an 

opinion on governmental immunity considering provisions 

of 5 2-9-111, MCA, simply concluding: "the act giving 

rise to the cause of action is clearly administrative or 

executive, not legislative. Hence, governmental immunity 

does not attach1'--or the reverse, in applicable 

situations. 

That day has now arrived. The 1991 legislature amended § 2-9- 

111, MCA, by SB 0154 to read: 

Immunity from suit for legislative acts and 

omissions. (1) As used in this section: 

(a) the term I1governmental entityv1 means only the 

state, counties, municipalities, school districts, and 

any other local government entity or local political 

subdivision vested with legislative power by statute; 

(b) the term lllegislative body1' means only the 

legislature vested with legislative power by Article V 

of The Constitution of the State of Montana and that 

branch or portion of any other local governmental entity 

or local political subdivision empowered by law to 

consider and enact statutes, charters, ordinances, 

orders, rules, policies, resolutions, or resolves; 

(c) (i) the term lllegislative actv1 means: 

(A) actions by a legislative body that result in 

creation of law or declaration of public policy; 

(B) other actions of the legislature authorized by 

Article V of The Constitution of the State of Montana; 

or 

(C) actions by a school board that result in adoption 

of school board policies pursuant to 20-3-323(1); 

(ii) the term legislative act does not include 

administrative actions undertaken in the execution of a 

law or public policy. 

(2) A governmental entity is immune from suit for a 

legislative act or omission by its legislative body, or 

any member or staff of the legislative body, engaged in 

legislative acts. 

(3) Any member or staff of a legislative body is 

immune from suit for damages arising from the lawful 
a - 

i 1 

discharge of an officialduty~associated with legislative 

acts of the legislative body. 

(4) The acquisition of insurance coverage, including 

self-insurance or group self-insurance, by a governmental 

entity does not waive the immunity provided by this 

section. 

(5) The immunity provided for in this section does 

not extend to any tort committed by the use of a motor 

vehicle, aircraft, or other means of transportation. 

Section 3. Effective date -- retroactive 

applicability. [This act] is effective on passage and 

approval and applies retroactively, within the meaning 

of 1-2-109, to causes of action that have not been 

reduced to final judgment on or before [the effective 

date of this act]. 

Section 2-9-111, MCA (1991). 

We conclude that Buraess is no longer controlling. In view 

of the revisions in 3 2-9-111, MCA, as above set forth, including 

the effective date, this issue must be reconsidered by the District 

Court. 

We reverse the decision of the District Court and remand for 

reconsideration. 

We concur: 

Chief Justice