The Firm

By Beacon Staff

As a young but established trial lawyer, Dale McGarvey recalls staring up at the rust-colored thickets of lodgepole pine on Teakettle Mountain, which towers over Columbia Falls near Glacier National Park, puzzling over their transformation from verdant green to denuded brown.

Then came the reports of deer, squirrels and other wildlife, all showing signs of malformed bones and teeth. Cattle that ranged in the area were buckling to their knees because of spurring in their joints.

Meanwhile, researchers were tracking damage to animal and plant life along Glacier Park’s southern boundary. They suspected, correctly, that it had something to do with industrial air pollution – specifically, fluoride emissions from the Anaconda-owned Columbia Falls Aluminum Company plant six air miles away, on the western side of Teakettle.

For McGarvey, an early hint of clarity came in 1970, when a local orthodontist named Loren Kreck approached him with scientific evidence that the plants and wildlife were decomposing because the aluminum plant’s smokestacks were pumping poisonous gas into the air at a rate of 10,000 pounds per day.

“It was a serious situation,” he said.

McGarvey, then two decades into his Kalispell law practice, reached out to the industrial behemoth’s head legal counsel, intent on going to battle against the pollution, not the plant, and finding a solution. But the small-town lawyer was rebuffed.

So, he and Kreck set to work filing a class action that became the largest civil lawsuit in the history of the 11th Judicial District Court, seeking more than $24 million in damages.

“That got their attention,” McGarvey said recently, nearly 45 years later. “A class action is a powerful thing. Scientifically, the proof was undeniable.”

Within a week, a lawyer from the Anaconda Company was in Kalispell, knocking at the door of McGarvey’s small law firm.

Tests conducted by the plant and released during the discovery phase of litigation revealed that it was indeed releasing 10,000 pounds of fluoride gas daily, impairing a 24-square-mile area between Glacier Park and Columbia Falls, and that the company knew about the scope of the pollution, even platting maps with different shades showing the extent of the fluoride contamination.

“They knew exactly what they were doing,” McGarvey said.

Within a month, McGarvey and co-counsel Frank Morrison met with plant officials who said they would install wet scrubbers and other environmental controls to minimize the gas emissions. In return for significantly curbing the releases, they asked if McGarvey would consider dropping the class action, which had amassed more than 600 plaintiffs in the form of concerned residents, landowners and ranchers.

Dale McGarvey, pictured Wednesday, April 16, 2014. Greg Lindstrom | Flathead Beacon

McGarvey said he would consider it once he saw real results.

Meanwhile, residents of the economically starved community were furious with Kreck, who lost dental patients in the uproar – bumper stickers that read “To Heck With Kreck” circulated in Columbia Falls. McGarvey’s firm took a hit, too, as he lost loyal clients and received threats.

“They were after my hide. The men thought I was ruining jobs,” he said. “One of my best clients lost some real estate sales and said he was going to bounce rocks off my head. I thought I was going to have to board up my windows against bricks.”

Ironically, McGarvey’s efforts may have saved the now-shuttered plant, which remained open until 2009.

While McGarvey waited to see if the Anaconda Company could curb its releases, the Sierra Club waited in the wings, ready to pounce if the action moved forward, eager to file an injunction that would have shut down the plant. Hundreds of workers would have lost their jobs.

“They began to realize that I was maybe a blessing in disguise,” McGarvey said of the Anaconda Company.

As per the agreement, the company spent millions on new environmental controls, and emissions soon dropped from 10,000 pounds per day to 861 pounds.

The trees on Teakettle Mountain regained their green luster.

“It had such results. Twenty-four square miles of land was cleaned up,” McGarvey said.

Although controversial at the time, future owners of the plant acknowledged that the investments likely kept them solvent through a marginal economic period, when the liability of fluoride would have been too great a risk to shoulder.

The lawsuit was dismissed without prejudice in 1973. But squaring off against the corporate giant, and prevailing through a compromise that was in the best interest of the community, remains among McGarvey’s proudest accomplishments.

“When you see all those trees dying and you have proof of this air pollution, it’s really not a question of what to do. You do what’s right,” he said.

Today, McGarvey is 87 and still practices law, representing private landowners in condemnation cases from his Kalispell law office at 745 Main St., ensuring that the “little guy” gets a fair shake as public utilities and highways encroach.

Less than a half mile away stands the offices of McGarvey, Heberling, Sullivan and Lacey, where Dale McGarvey’s son, Allan, practices alongside a fleet of experienced trial lawyers, litigating toxic torts, bad-faith insurance conduct, environmental law, class actions and other public interest cases.

The firm, situated in the former Sons of Norway building, was recently repurposed and remodeled after the practice outgrew its former digs. It features the first rooftop array of solar panels in downtown Kalispell.

Despite its new location, the firm traces its roots to 1975 and the original office, where Jon Heberling joined the elder McGarvey’s practice, drawn to his principles, work ethic and affection for the underdog – “I always sue uphill,” Dale said.

In 1986, Allan McGarvey and Roger Sullivan also joined the firm as partners, followed by John Lacey in 1999, creating a top-flight legal stable that continues to tirelessly safeguard ordinary, working-class people from reckless corporate conduct.

The lawyers understand that it’s not a black-and-white world of innocent victims and lonely crusaders battling the malignant pawns of the corporate state.

But in so many cases, the clients and communities they’ve represented would not have had a voice without their untold investments of time and money.

“Dad started us on the path that we’re on,” Allan said. “The theme of our practice is to protect the little guy, protect the common values against the abuses they are vulnerable to. That’s what we do because that’s where our heart is.”

The path hewed by Dale McGarvey and burnished by the next generation of attorneys has led to a pair of roughly $100 million settlements – bookended first with the Columbia Falls Aluminum Company in a profit sharing lawsuit that attracted national attention (a $97 million settlement), and later in a shareholders’ class action over the dismantling of the Montana Power Company, the state’s only Fortune 500 company until NorthWestern Energy purchased it ($113 million settlement).

In the CFAC case, McGarvey and Sullivan were lead counsel in a classic David-versus-Goliath battle.

In the course of the legal dispute, the Montana lawyers contended with 40 opposing lawyers, including Joe Giroir of the Rose Law Firm in Little Rock, Ark., where Hillary Rodham Clinton was once a partner, scrambling to keep their heads above water as the blue-blood defense team floated rafts of legal motions their way.

To pay expenses, McGarvey and Sullivan were forced to take out an $850,000 bank loan, for which their wives had to sign.

The case was brought by a 39-year-old accountant at CFAC named Roberta Gilmore, who challenged the company’s bookkeeping practices when she noticed company executives were subverting their end of a dollar-in-your-pocket, dollar-in-my-pocket profit-sharing agreement with workers.

The aluminum refinery was leaking money like a sieve, and the corporate executive who had recently bought the refinery from the Atlantic Richfield Company promised that if the aluminum market rebounded, they would split the take.

In 1985, the market began to recover, and while for the first five years the company kept its word, the company brass soon began lining their own pockets, squirreling the money away to offshore bank accounts.

Before cutting out the employees altogether, the two top executives had doled out $84 million to the workers and kept $231 million for themselves.

McGarvey and Sullivan recall stepping into U.S. District Court in Missoula and facing a wall of well-heeled suits.

“Sure, they brought in 20 lawyers and a team of security specialists, but when the gavel comes down all of a sudden the power starts to even out,” McGarvey said. “More often than not, David gets his day in court against Goliath.”

But Goliath had the means to wage a war of attrition against the small-town lawyers and the middle-aged bookkeeper, drowning the attorneys in legal motions and draining their resources through delay tactics, even though the Kalispell lawyers had a memo expressly defining the 50-50 profit-sharing agreement.

Still, in 1998, just shy of six years after filing the suit, the company caved; two weeks before the case was scheduled for trial – a sprawling affair slated to run two months and summon hundreds of witnesses – the corporation agreed to pay the workers $97 million. The settlement was double that of a previous offer, and eight times the initial proposed settlement in 1995.

“Anymore we have professions without purpose. And we have a purpose here, a purpose to achieve justice,” Sullivan said.

“In many ways that case was a microcosm of what happens in the American economic system where, unfortunately, it’s almost as if we have two economies,” he continued. “One set is for the folks who continue to work hard for their paychecks and then there are the investors who have an entirely different world view.”

Sullivan has exclusively practiced environmental law for the past 30 years, and is president of the Montana Environmental Information Center, for which he regularly does pro bono legal work.

“That’s how I spend my free time,” he said. “A large part of my passion is actually trying to prevent environmental contamination and injury.”

Two years ago, he successfully blocked the construction of two controversial coal-fired plants near Great Falls, representing the Helena-based Montana Environmental Information Center and some 40 landowners who opposed the project.

MEIC and the landowners, who live or farm near the proposed building site, sued Cascade County over the rezoning of the land from farmland to heavy industrial, which they alleged was illegal spot zoning.

Southern Montana Electric Generation and Transmission needed the industrial zoning in order to build the 250-megawatt Highwood Generating Station.

The coal-fired power plant, the source of heated debate for the past three years, drew the ire of landowners facing the possibility of having land taken by eminent domain for rail, power and water and sewer corridors for the power plant, and were able to seek judicial relief without putting up a bond.

“It’s a right of citizenship,” Sullivan said.

He’s currently involved in a lawsuit to bring a coal-fired power plant at Colstrip into compliance with the federal Clean Air Act. The plant, built in the 1970s, is one of the dirtiest coal-fired plants in the country, Sullivan said.

“As a lawyer and as someone who grew up in the Rocky Mountain West, my response has always been an ethical one. What can we do to pass a healthy and functioning environment on to the next generations?” he said.

For 30 years the Kalispell firm has perhaps been best known for its central role in fighting for damages from W.R. Grace and Co., representing the scores of families of the dead and the dying in Libby, where asbestos from Grace’s now-defunct vermiculite plant has sickened and killed thousands.

For Heberling, the cases have dominated the past two decades of his career as he’s labored over both class action and individual lawsuits, literally watching clients die and new ones receive deadly diagnoses as he sparred with Grace in the courts.

In May 1997, the little firm made history when it persuaded a jury to convict W.R. Grace for making Les Skramstad fatally ill with mesothelioma. Skramstad’s was the first Libby case to go to a jury and one of the few guilty verdicts ever lodged against the multinational corporation, awarding him $670,000, most of it punitive damages.

The following year, the firm won a wrongful death case on behalf of Gayla Benefield, whose mother died of asbestos-related disease. A jury awarded the family $483,000.

Grace paid $19.6 million in a legal settlement that Heberling helped negotiate between 2,200 Libby residents and the corporation, resulting from the company’s bankruptcy case, during which victims’ attorneys from three firms worked more than 18,000 hours over 11 years.

Grace received more than 250,000 personal injury claims, and by 2001 sought bankruptcy protection to escape their massive debt.

Before W.R. Grace could begin the bankruptcy process, however, they had to create a plan to establish a trust fund that would pay off all valid asbestos-related claims.

The U.S. Department of Justice investigated the company and, with enormous help from Heberling, discovered that Grace had siphoned off several billion dollars to their subsidiaries prior to requesting bankruptcy protection; they were ordered to bring back $1 billion that would be used for the trust fund.

“My work was used to uncover a shell game strategically designed to insulate the majority of their assets,” Heberling said. “I absolutely believe that — but for the efforts of this firm on behalf of our clients — nothing would have come to light in Libby.”

“In order to do Libby, you have to have the heart and passion for the work,” added Allan McGarvey, who, along with the firm’s other attorneys, has devoted untold hours to the cause, which accounts for a sizeable portion of the firm’s workload.

Since joining the law firm in 1999, John Lacey has taken on the onus of many of the individual civil cases on behalf of Libby residents, who continue to be diagnosed at the Center for Asbestos Related Disease; although the vermiculite mine shut down in 1990, widespread contamination in the town and the latency period of asbestos-related disease means that residents will continue to be diagnosed for years to come.

Lacey first came to work for the firm when Dale McGarvey was still a partner – the elder McGarvey hung his own shingle to work at a slower pace, though his metabolism for public interest remains sky high – and recalls how inspired he was.

“His enthusiasm was infectious,” Lacey said.

Soon, he was working closely with the individual claims of Libby residents, and said while the work has been rewarding, the “face-to-face” aspect is taxing.

“There are these cycles that we run through and it’s devastating to watch your clients die,” he said. “That’s the reality of W.R. Grace and the effect on Libby. There are people prematurely dead. They’re not just a class action or a lawsuit, they’re people dying.”

The firm has since hired two more attorneys as associates, Dustin Leftridge and Ethan Welder, and McGarvey says it’s a pleasure to watch them take on the cases with fervor.

“They’re young idealistic lawyers who are the next generation, I hope,” he said. “We all have a stake in making this a better community, a better state and a better nation, and they do that through taking on these very complex cases that in many instances nobody else will take on.”

University of Montana law professor Greg Munro said the firm is a rarefied breed, in Montana and across the nation.

“Everything they touch is complex. Just massive undertakings,” Munro said. “It is a rare breed of lawyers who can handle very complex cases, and the litigation of the size that this firm has handled through the years is remarkable. There are probably six law firms in Montana that are plaintiffs’ law firms that can sue corporations and have the capabilities and effectiveness these guys have, and that’s out of 3,300 lawyers in the state.”

He added, “They take on these backbreaking cases with a formidable defense on the other side, and it requires an enormous investment in money and, especially, time. And what happens when you work for 10 years and you walk away empty handed?”

While McGarvey, Sullivan and Heberling concede they’ve struck a balance as a law firm, and they can take pride in building a lucrative practice, they say it’s not the bottom line that matters.

“This environmental work is really hard work and you don’t get paid for it. It’s really a labor of love,” McGarvey said.

“We’re the only ones crazy enough to do it,” Heberling added.

“It’s who we are at heart. It’s what we have in common,” Sullivan said. “This is why we are lawyers.”