South-Western Legal Studies in Business

Tort and Statutory Remedies for Environmental Harm Precede Constitutional Remedy

Montana high court held that a state constitutional right to a clean environment did not create a cause of action against a mining operation alleged to have caused environmental damage. Unless tort and statutory remedies are shown to be inadequate to address a problem, the constitutional right need not come into play.

Topic Constitutional Law
Key Words

Environmental Rights; Damages; Torts

C A S E   S U M M A R Y

The Montana constitution provides the right to a “clean and healthful environment.” For some years, the C.R. Kendall Corporation ran a cyanide heap-leach mine. The Shammels own property downstream from the former mine. They contend that tailings from Kendall’s operation have infused their drainage waters, both surface and subsurface, with toxic substances that leached from the tailings. Despite measures ordered by the Department of Environmental Quality to reduce leaching, the Shammels contend that chemicals have damaged their aquifer and real property. They sued for trespass and nuisance and for a constitutional tort based on the clause in the state constitution. The district court dismissed the constitutional tort claim. The Shammels appealed.


When adequate remedies exist under the common law or statute, the constitutional right to a clean and healthful environment, shared by all Montanans, does not support a cause of action for money damages between private parties. The Shammels have not shown that traditional tort remedies, amplified by restoration damages, will not afford them complete redress for the environmental damage they allege to have suffered.


Shammel v. Canyon Resources Corp., 167 P.3d 886 (Sup. Ct., Mont., 2007)

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