905 F.3d 565 (9th Cir. 2018), 16-35742, Pakootas v. Teck Cominco Metals, Ltd.

Docket Nº:16-35742
Citation:905 F.3d 565
Opinion Judge:GOULD, Circuit Judge:
Party Name:Joseph A. PAKOOTAS, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; Donald R. Michel, an individual and enrolled member of the Confederated Tribes of the Coville Reservation; Confederated Tribes of the Colville Reservation, Plaintiffs-Appellees, State of Washington, Intervenor-Plaintiff-Appellee, v. TEC...
Attorney:Kevin Murray Fong (argued), Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California; Christopher J. McNevin, Pillsbury Winthrop Shaw Pittman LLP, Austin, Texas; for Defendant-Appellant. Paul Jerome Dayton (argued) and Brian S. Epley, Short Cressman & Burgess PLLC, Seattle, Washington; for ...
Judge Panel:Before: Ronald M. Gould and Richard A. Paez, Circuit Judges, and Michael J. McShane, District Judge.
Case Date:September 14, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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905 F.3d 565 (9th Cir. 2018)

Joseph A. PAKOOTAS, an individual and enrolled member of the Confederated Tribes of the Colville Reservation; Donald R. Michel, an individual and enrolled member of the Confederated Tribes of the Coville Reservation; Confederated Tribes of the Colville Reservation, Plaintiffs-Appellees, State of Washington, Intervenor-Plaintiff-Appellee,

v.

TECK COMINCO METALS, LTD., a Canadian corporation, Defendant-Appellant.

No. 16-35742

United States Court of Appeals, Ninth Circuit

September 14, 2018

Argued and Submitted February 5, 2018, Seattle, Washington

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Kevin Murray Fong (argued), Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California; Christopher J. McNevin, Pillsbury Winthrop Shaw Pittman LLP, Austin, Texas; for Defendant-Appellant.

Paul Jerome Dayton (argued) and Brian S. Epley, Short Cressman & Burgess PLLC, Seattle, Washington; for Plaintiffs-Appellees.

Andrew Arthur Fitz (argued), Senior Counsel; Robert W. Ferguson, Attorney General; Kelly T. Wood, Assistant Attorney General; Office of the Washington Attorney General, Olympia, Washington; Intervenor-Plaintiff-Appellee.

Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding, D.C. No. 2:04-cv-00256-LRS

Before: Ronald M. Gould and Richard A. Paez, Circuit Judges, and Michael J. McShane,[*] District Judge.

SUMMARY[**]

Environmental Law

The panel affirmed the district court's judgment, after two phases of a trifurcated bench trial, in favor of plaintiffs in an action under the Comprehensive Environmental Response, Compensation, and Liability Act.

The district court dismissed defendant Teck Cominco Metals' divisibility defense to joint and several liability on summary judgment. At Phase I of the trifurcated trial, the district court held that Teck was liable as an "arranger" under CERCLA § 107(a)(3). At Phase II, the district court found Teck liable for more than $8.25 million of plaintiff Colville Tribes' response costs. The district court then certified this appeal by entering partial judgment under Federal Rule of Civil Procedure 54(b).

The panel held that it had jurisdiction to entertain the appeal. The panel concluded that Rule 54(b) authorized the district court to certify the appeal because the district court rendered an ultimate disposition of an individual claim by ruling on Colville Tribes' response costs claim, which was separable from the Tribes' claim for natural resource damages. The panel held that the district court's Rule 54(b) certification was not an abuse of discretion.

The panel held that the district court properly exercised personal jurisdiction over Teck, operator of a lead and zinc smelter in British Columbia. The panel applied the Calder "effects" test because the claims for recovery of response costs and natural resource damages were akin to a tort claim. The panel held that, under the Calder test, Teck purposefully directed its activities toward Washington State.

The panel held that the district court properly awarded the Colville Tribes their investigation costs incurred in establishing Teck's liability. CERCLA § 107(a)(4)(A) provides that a potentially responsible party, or PRP, is liable for "all costs of removal or remedial action." The panel held that investigations by the Tribes' expert consultants qualified as recoverable costs of removal, even though many of these activities played double duty supporting both cleanup and litigation efforts.

The panel held that § 107(a)(4)(A) also allowed the Tribes to recover their attorneys' fees as part of their response costs. The panel held that the district court did not abuse its discretion in setting the amount of attorneys' fees.

The panel affirmed the district court's grant of summary judgment rejecting Teck's divisibility defense to joint and several liability. The panel concluded that there was no triable issue whether Teck had sufficient evidence to prove the defense, which requires a showing that the environmental harm is theoretically capable of apportionment and that the record provides a reasonable basis on which to apportion liability.

OPINION

GOULD, Circuit Judge:

This appeal is the latest chapter in a multi-decade dispute centered on Teck Metals’ liability for dumping several million tons of industrial waste into the Columbia River. Since we last heard an interlocutory appeal in this case, the district court dismissed Teck’s divisibility defense to joint and several liability on summary judgment. At Phase I of the trifurcated bench trial, the court held that Teck was a liable party under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). At Phase II, the court found Teck liable for more than $8.25 million of the Confederated Tribes of the Colville Reservation’s response costs. The district court then certified this appeal by entering partial judgment under Federal Rule of Civil Procedure 54(b). We conclude that we have jurisdiction, and we affirm.

I

The Columbia River, the fourth-largest river in North America, begins its 1,200-mile journey to the sea from its headwaters in the Canadian Rockies. The River charts a northwest course in British Columbia before bending south toward Washington. It then widens and forms the Arrow Lakes reservoir until, thirty miles before the international border, it reaches the Hugh Keenleyside Dam. After passing through the dam’s outlet, the River is free-flowing until south of the border near Northport, Washington. There it again starts to slow and pool at the uppermost reaches of Lake Roosevelt, the massive reservoir impounded behind the Grand

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Coulee Dam. This case concerns the more than 150-mile stretch of river between the Canadian border and the Grand Coulee Dam, known as the Upper Columbia River.

From time immemorial, the Upper Columbia River has held great significance to the Confederated Tribes of the Colville Reservation. These tribes historically depended on the River’s plentiful fish for their survival and gave the River a central role in their cultural traditions.[1] And the Colville Tribes continue to use the Upper Columbia River to this day for fishing and recreation. Under the applicable treaties, the Tribes retain fishing rights in the River up to the Canadian border. See Okanogan Highlands All. v. Williams, 236 F.3d 468, 478 (9th Cir. 2000) (citing Antoine v. Washington, 420 U.S. 194, 196 n.4, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975) ). Those treaties draw the Colville Reservation’s eastern and southern boundaries "in the middle of the channel of the Columbia River." Act of July 1, 1892, ch. 140, § 1, 27 Stat. 62, 62-63. The Tribes claim equitable title to the riverbed on their side of the channel, and the United States has long supported this claim. See Confederated Tribes of Colville Reservation v. United States, 964 F.2d 1102, 1105 n.7 (Fed. Cir. 1992); Opinion on the Boundaries of and Status of Title to Certain Lands Within the Colville and Spokane Indian Reservations, 84 Interior Dec. 72, 75-80, 1977 WL 28859, at *3-5.

For nearly a century, however, the Upper Columbia River has been fouled by Teck Metals’ toxic waste.2 Teck operates the world’s largest lead and zinc smelter in Trail, British Columbia, just ten miles upstream of the U.S. border. During smelting, lead or zinc ore is heated to a molten state, during which the desired metal is separated from impurities in the raw ore. These impurities cool to form glassy, granular slag. Between 1930 and 1995, Teck discharged about 400 tons of slag daily— an estimated 9.97 million tons in total— directly into the free-flowing Columbia River. Teck washed this debris into the river using untold gallons of contaminated effluent. These solid and liquid wastes contained roughly 400,000 tons (800 million pounds) of the heavy metals arsenic, cadmium, copper, lead, mercury, and zinc, in addition to lesser amounts of other hazardous substances.3

At least 8.7 million tons of the Trail smelter’s slag and nearly all of the dissolved and particulate-bound metals in its effluent made the short trip downstream into the United States. Upon reaching the calmer waters of Lake Roosevelt, Teck’s smelting byproducts came to rest on the riverbed and banks, with larger detritus settling upstream and smaller particles settling downstream near the Grand Coulee Dam.4 Once settled, these wastes began

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to break down and release hazardous substances into the River’s waters and sediment.

In 1999, the Colville Tribes petitioned the U.S. Environmental Protection Agency to assess the threats posed by the contamination of the Upper Columbia River Site. Two years later the Tribes and EPA signed an intergovernmental agreement coordinating a site investigation and assessment. After completing its preliminary assessment, EPA issued a unilateral administrative order against Teck. The order directed Teck to perform a remedial investigation and feasibility study ("RI/FS") of the Site under CERCLA. Teck disputed whether it was subject to CERCLA, however, and EPA decided not to enforce the order during negotiations with the company.

The Colville Tribes then tried to enforce EPA’s order by funding a CERCLA citizen suit by two of their tribal government officials in 2004. These plaintiffs were later joined by the State of Washington as a plaintiff-intervenor and eventually by the Colville Tribes as a co-plaintiff.

Teck moved to dismiss the action. It primarily argued that CERCLA does not apply...

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