LITIGATION DEPARTMENT OF THE YEAR - Mid-Size Firm  ALM's Daily Report   2017 - 2016 - 2014

WWHGD Defends Case Involving Ancient Indian Remains

Weinberg Wheeler Hudgins Gunn & Dial was recently involved in a complex case which hinged on remains discovered at an ancient Indian village. David A. Dial and Howard J. Russell defended Golder Associates Inc., a consulting firm hired by the City of Blaine, Washington, to provide archaeological monitoring during the expansion of the City’s wastewater treatment plant.

All parties, both private and public, were aware of the potential for unearthing remains, since the plant was built on the known site of an ancient Indian village. When the plant was constructed in the 1970s, similar archaeological studies accompanied its initial development. In the course of the 1999 expansion, human remains were uncovered in the area and subsequently were secured for analysis by Golder’s archaeologist and eventually transported to Colorado.

The Lummi Nation, upon learning of the removal of the remains, asked that the project be halted. State and federal government agencies complied, ordering it be shut down. As a result, the City of Blaine sued Golder for breach of contract, alleging Golder had failed to properly notify the Lummi Tribe of the findings and further claiming the human remains should not have been removed to Colorado. The City also sought indemnity for the settlement it paid to the Lummi Nation to resolve the tribe’s claims against the City.

During trial, attorneys for the City of Blaine contended the project would have continued as planned had Golder properly notified the Lummi Nation of the discovery of remains and not removed the remains without Lummi approval. As such, the City claimed it was entitled to the costs it had incurred to date on the project and costs for the construction of a wastewater treatment plant at a completely different site. The City also claimed its insurers’ payments and costs to settle the Lummi claim were due to Golder’s negligence.

In defense of Golder, we argued there was no breach of any contract provisions and, in reality, the project had been halted due to the number of human remains unearthed. We also claimed the City had not proven any damages caused by the alleged breach and argued that the law did not allow the City to recover the cost of building a new, state-of-the-art wastewater treatment plant. We also contended any payments to the Lummi in settlement were due to the City’s own negligence in supervising the project, especially since the City was aware of the discovery of remains but undertook no effort to inform the tribe.

The City of Blaine sought approximately $35 million on the breach of contract and negligence cause of action and an additional $1.7 million on the indemnity claim. The jury found in favor of the City, but greatly reduced the awards to roughly $91,000 and $1.13 million, respectively . As a result, the verdict was less than the last offer made by our client and substantially less than the last demand made by the City of Blaine.

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