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Inferior Blackfeet housing under fire

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GREAT FALLS, Mont. - Two critical turning points are pending in a federal lawsuit filed here last year over substandard housing on the nearby Blackfeet Indian Reservation.

Plaintiffs in the case allege that the U.S. Department of Housing and Urban Development (HUD) and the Blackfeet Housing Authority in the mid-1970s knowingly built and sold 153 homes using inferior and potentially harmful materials. Also named as defendants were the most-recent members of the tribal housing board.

Despite the area's often-brutal winters, the homes were constructed on wooden foundations, many of which are now buckling and leaking. In some cases, the leakage has prompted stubborn growths of mildew and toxic molds. The basement wood is also treated with toxic chromated copper arsenate, or CCA, a substance the U.S. Environmental Protection Agency in 2001 decided should be removed from commercial sale because of health concerns.

Numerous residents contend they or their relatives have been sickened by the homes, most of which are still occupied and were mortgaged under HUD's Mutual Help Homeownership Opportunity Program. The residents, who want the case certified as a class action, say their complaints and attempts to get the problems rectified were largely ignored. The inaction prompted the litigation "as a last resort," said lead plaintiff Martin Marceau.

"HUD has failed to fulfill its congressional mandate to provide decent, suitable, safe, and sanitary housing for members of the Blackfeet Indian Reservation, a recognized lower-income group, and to provide housing of sound standards of design, construction and livability," court documents filed by Billings attorneys Thomas Towe and Jeffrey Simkovic allege. "The Housing Authority has sold homes to representative plaintiffs and other class members that are substandard, unsafe, unsuitable, unsanitary, unhealthy and uninhabitable."

"The death and sickness is too numerous to be coincidence," Marceau explains. "We had no other means except to go to a lawsuit."

But attorneys for the federal agency, HUD Secretary Mel Martinez and the housing authority, which has now been formally dissolved and incorporated under the wing of the Blackfeet Tribal Business Council, contend there has been no wrongdoing. They're asking U.S. District Court Judge Sam Haddon of Great Falls to dismiss the case on a variety of grounds, including sovereign immunity.

"Tribal agencies, as well as tribal officials acting in the representational capacity and within the scope of their authority, enjoy the same presumption of immunity as tribes themselves," housing authority attorney Steve Doherty wrote in one brief. "... As an arm of the Blackfeet Tribe, Blackfeet Housing is presumptively immune from this private lawsuit."

Doherty, a former Democratic lawmaker who served as minority leader in the 2001 Montana Legislature, is also seeking a protective order from Haddon to keep the plaintiffs from moving ahead with detailed discovery inquiries before the immunity issues are decided. Court records show Towe and Simkovic recently blasted the idea in reply briefs.

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"Plaintiffs have learned that Blackfeet Housing was ordered by HUD to require wooden foundations and was ordered to prescribe other cost-saving measures in the construction of 153 homes ... and the Blackfeet Housing Authority and the Blackfeet Housing (agencies) are both mere puppets following the directions of HUD and had no genuine independence on matters of policy or discretion," they argue. The attorneys add that a protective order would harm their ability to fully develop the facts of the case.

Meanwhile, Assistant U.S. Attorney Timothy Cavan, representing both Martinez and HUD, is arguing that issues raised in the lawsuit "either fail to state a claim upon which relief can be granted, or are beyond the subject matter jurisdiction of this court."

Court records also show that Cavan contends it was not until 1988, "well after the completion of the Blackfeet homes in question," that specific American Indian housing legislation was approved by Congress. Therefore, he argues, the federal government is not responsible for the disputed reservation housing, which was constructed in 1976 and 1977.

In addition, Cavan argues that HUD Secretary Martinez is being sued in his official capacity even though he had nothing to do with housing decisions being made three decades ago.

Towe and Simkovic, however, still maintain the agency - and whoever leads it - is responsible for the ongoing problems.

"The Blackfeet Housing Authority was compelled by HUD to use the wooden foundations and other defective products, even though they also know all the wooden foundations were a violation of HUD regulations and state and local building standards," Towe and Simkovic argue in an April 4 filing.

Haddon is soon expected to wade through the arguments, including contentions by Towe and Simkovic that Congress has "effectively waived" any sovereign-immunity claims that could be applied to the case. Once Haddon decides whether the case moves forward, a decision is also expected over pending class-action status.

Towe says that after the plaintiffs' discovery actions are exhausted, he and Simkovic may request a quick end to the case.

"We think the facts are so strong that summary judgment wouldn't be denied," Towe contends.