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Plaintiffs vow appeal of Blackfeet housing case dismissal

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GREAT FALLS, Mont. - A federal judge has ruled against eight Blackfeet tribal members who sued the federal government and their housing authority in 2002 over substandard homes they contend are making residents ill.

While U.S. District Judge Sam Haddon sided with the federal Department of Housing and Urban Development (HUD) and Blackfeet Housing by dismissing the civil case on Jan. 12, the plaintiffs want the ruling to be reviewed by the 9th U.S. Circuit Court of Appeals, said Billings attorney Tom Towe, who is representing the homeowners with fellow attorney Jeffrey Simkovic. Towe added that a final decision on an appeal has not yet been made.

Plaintiffs Martin Marceau, Candice LaMott, Julie and Joseph Rattler Jr., John Edwards Jr., Deana Mountain Chief and Gary and Mary Grant filed suit on behalf of themselves and other owners of 153 HUD homes that were built with wooden foundations on the Blackfeet Indian Reservation in the late 1970s and early 1980s.

The residents, who want to turn the litigation into a class-action case, said the unstable foundations caused structural damage and water leaks, which in some instances have prompted the explosive growth of mildew and toxic molds. Wood used for the foundations was also treated with a highly-toxic preservative, chromated copper arsenate, or CCA, a substance the U.S. Environmental Protection Agency has since decided should be removed from commercial sale because of health concerns.

The plaintiffs argue that HUD and Blackfeet Housing officials built and arranged the mortgaging of the homes under HUD's Mutual Help Homeownership Opportunity Program while knowing that the foundations were inferior and potentially harmful. They wanted Haddon to order the agencies to either replace or repair the houses, most of which are still occupied.

"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," Towe and Simkovic alleged in court documents. "The Housing Authority has sold homes to representative plaintiffs and other class members that are substandard, unsafe, unsuitable, unsanitary, unhealthy and uninhabitable."

But attorneys for the federal agency, former HUD Secretary Mel Martinez, and the tribal housing program argued that there was no wrongdoing and their clients are institutionally immune from such a suit. Haddon agreed with their contentions and suggested that the case may be better suited for the U.S. Court of Federal Claims, which handles a limited type of lawsuits against government entities.

But in a telephone interview, Towe said that venue would be inappropriate because the Court of Federal Claims doesn't have the authority to issue the type of damages he and Simkovic are seeking. He called Haddon's ruling "disappointing," and said he believes there's plenty of precedent for instead deciding in his clients' favor.

The plaintiffs argue that HUD breached its trust responsibilities under the National Housing Act and the Native American Housing Assistance and Self-Determination Act and that federal claims of sovereign immunity were waived under the Tucker Act and other statutes. They contend tribal immunity claimed by Blackfeet Housing was also waived through an earlier resolution.

A recent independent study of some of the homes found that "mold colonization of reservation housing poses an immediate and serious health threat to affected occupants" and that "additional health issues exist with septic/sewage flooding," as well as with the treated wood.

"Children who have been required to sleep in rooms with mold and septic/sewage contamination have developed health complications that have prevented them from playing sports and that has resulted in frequent nose bleeding, asthma, hoarseness, headaches and malaise, kidney failure and cancer," the lawsuit alleges. "Elderly and other class members have developed similar health complications from exposure to these contaminations."

According to court documents, the plaintiffs have "sought assistance through administrative remedies over 15 years by complaining to Blackfeet Housing and the agents and employees of HUD about the housing conditions." But, they add, the efforts were to no avail.

"Although many promises have been made to correct the problems, these complaints have largely been ignored," the documents state.