## Facts

- Russell and Melissa Levens owned residential property adjoining Al Ballard and Ecosafe Gold Recovery, LLC, who operated an open-pit gold mine in Grizzly Gulch near Helena, Montana.
- The parties disputed their shared boundary and, in 2005, entered a written agreement to resolve the boundary issue and create a protective buffer near the Levens’ home.
- The agreement adjusted the boundary so a 30-foot strip lay on Ballard’s side, and Ballard promised not to “excavate” within that 30-foot strip.
- Ballard mined with heavy equipment, creating an open pit by removing earth and rock for gold processing.
- A dispute arose over whether “excavate” barred only placing equipment and digging on the surface of the 30-foot strip (Ballard’s view) or also barred mining adjacent to the strip that caused cracking, sloughing, subsidence, or collapse within the strip (the Levens’ view).
- Ground cracking, sloughing, and movement occurred within 30 feet of the property line during continued mining.
- The district court previously entered an injunction barring excavation within the 30-foot strip and had granted summary judgment to the Levens on interpretation of the agreement (not directly at issue on this appeal).
- The Levens later moved to hold Ballard in contempt, alleging continued mining violated the injunction by functionally intruding into the buffer through instability and collapse within the 30-foot zone.
- The district court denied the contempt motion (July 31, 2009) and later awarded attorney’s fees to Ballard as the prevailing party on contempt (September 1, 2010).
- The Levens appealed both orders.

## Issues

1. Whether the district court erred by construing the injunction and agreement too narrowly when denying contempt, effectively permitting mining that caused sloughing, cracking, or collapse within the 30-foot no-excavation strip.
2. Whether the attorney’s fee award to Ballard as the prevailing party on the contempt motion was erroneous after proper construction of the judgment.

## Decision

- The Montana Supreme Court reversed the order denying the Levens’ motion for contempt.
- The Court held the injunction and agreement must be construed to prevent Ballard from excavating in a manner that allows the pit to intrude into the 30-foot buffer strip through sloughing, cracking, subsidence, or collapse, not merely to prevent surface digging on the strip.
- The Court reversed the attorney’s fee award to Ballard because it depended on Ballard being the prevailing party on a contempt ruling founded on an incorrect interpretation of the judgment.
- The case was remanded for further proceedings consistent with the Court’s construction of the injunction and agreement.

## Legal Principles

- A judgment enforcing a setback or buffer agreement is construed in light of the agreement’s purpose and context, not as a purely formal boundary-line restriction.
- A contractual and injunctive prohibition on “excavating” within a buffer zone can include mining conducted adjacent to the zone when that activity destabilizes the buffer or causes physical intrusion into it (e.g., sloughing, collapse, cracking, or subsidence within the buffer).
- A contempt determination resting on an incorrect construction of the underlying injunction is reversible.
- A prevailing-party attorney’s fee award cannot stand when the underlying ruling establishing prevailing-party status is reversed.

## Conclusion

The Montana Supreme Court held that the 30-foot no-excavation buffer had to remain a stable, intact protective strip, so mining that caused collapse or instability within the buffer could violate the injunction; it therefore reversed the denial of contempt and the related attorney’s fee award to Ballard.


Levens v. Ballard, 255 P.3d 195 (Mont. 2011)